Communications Law in Transition: A Newsletter

ARTICLES BY TOPIC

Compiled by Angela Campbell,
Georgetown University Law Center

BROADCAST REGULATION

Willem F. Korthals Altes, European Law: A Case Study of Changes in National Broadcasting, 11 Cardozo Arts & Entertainment Law Journal 313 (1993) gives an overview of Dutch broadcasting history and shows that the Dutch system, attempting to remain independent, is characterized by pluralism, balance, and harmony. The article then focuses on developments in the EC and Council of Europe, which, combined with increased use of satellite and cable, are substantially changing national broadcasting system in the Netherlands.

Muhammad I. Ayish, Arab Television Goes Commercial: A Case Study of the Middle East Broadcasting Centre, 59 Gazette 473 (1997). Arab governments have traditionally controlled radio and television. Heated debates exist on how to accommodate commercial broadcasting in this environment. This study analyzes emerging TV organization, the Middle East Broadcasting Center (MBC), a privately controlled commercial satellite channel based in London. It compares MBC to government-controlled television channel, the Egyptian Space Channel (ESC), to see whether TV ownership impacts on program output. The article provides a brief history of Arab TV and describes the MBC commercial model and the ESC government-controlled model. It makes findings regarding programming of various types and relates findings to policy arguments.

Desmond Bell, The Corporate State and Broadcasting in Ireland: A National-Popular Program, 11 Cardozo Arts & Entertainment Law Journal 337 (1993) explores relationship between corporate state and public service broadcaster in Europe using Ireland as historical case study.

Andrew Colvin, The Control of Broadcasting in Italy: A Commentary on the New Mammi Law describes features of the Mammi law passed in 1990, with a focus on the antitrust aspects. This law conforms partly with Television without Frontiers Directive. The article describes the many changes in Italian broadcasting as result of this new law.

Claude Contamine, Media in Eastern and Western Europe: Shared Problems, Shared Solutions?, Proceedings of the Second Plenary Meeting of the European Television and Film Forum, Nov. 1990 discusses a variety of issues concerning TV and children. Summarizes offerings of different European countries; although mentions laws, e.g. Mammi, and conventions, e.g. UN Convention on children’s rights, is not particularly legally oriented.

Richard Cullen, Media Freedom in Chinese Hong Kong, 11 The Transnational Lawyer 383 (1998) provides a summary of the structure, regulation, and legal culture surrounding Hong Kong’s print and broadcast media. The article first briefly outlines both the political and legal history of Hong Kong prior to the turnover to Chinese control in 1997 and the general media structure of Hong Kong, both prior to and after the turnover. It also gives an overview of the legal framework of media regulation, noting the current lack of enforcement of the media laws that exist. It discusses the judiciary’s role in assuring the freedom of the press, or lack of one, along with an examination of a variety of other factors which come to bear on press freedom in Hong Kong. Lacking a definitive conclusion, this article is an excellent overview of Hong Kong’s historical and current attitudes towards media regulation and freedom of the press.

Chris Doyle, Programming in a Competitive Broadcasting Market: Entry, Welfare and Regulation, 10 Information Economics and Policy 23 (1998) argues that regulation is needed in competitive broadcasting industry to ensure desirable mix of programming. The proposed model builds on existing literature and illustrates how regulatory instruments may provide appropriate incentives. The article also examines the effect of entry. Focussing on US and UK, the article engages in economic analysis (with lots of formulae!).

Anna Edin, The Well-Organized Competition, On the Development of Internal Competition in the Swedish Television Monopoly, 19 The Nordicom Review of Nordic Research on Media & Communication 271 (1998) provides a retrospective examination of Swedish television, where competition (two channels) was introduced in late 1970s in an attempt to appropriate the positive effects of competition without negative effects.

D. Goldman, South Africa: A New TV Model, IIC Special Report, May 1998, 26 Intermedia 4. After 40 years of dominance by South African Broadcasting Corp, a news television station, Midi Television (20% owned by Time-Warner), was awarded the fourth terrestrial TV license in March 1998. The article argues that this development shows that South African market is viable, yet concerns about foreign investment (and programming) and that airwaves are “too white.” Part A describes the players, including Midi Television; the competing applicants; and established players. Part B provides background regarding broadcasting, politics and regulation in South Africa. Topics include the importance of radio in South Africa, economics, historical context, the socio-economic context, the role of the regulator, and government policy. Part C examines questions for the future, e.g., whether there should be further privatization, whether SABC should be “corporatised,” whether foreign ownership is desirable, and whether the Independent Broadcasting Authority should be merged with the Telecommunications regulator.

Wolfgang Hoffman-Riem, The Broadcasting Activities of the European Community and Their Implications for National Broadcasting Systems in Europe, 16 Hastings International & Comparative Law Review 599 (1993) discusses significance of EC’s 1989 Directive on television. The article also examines the effects of antitrust law on broadcasting and notes the tension between view of broadcasting as culture v. economic.

W. J. Howell, Jr., Broadcast Spillover and National Culture: Shared Concerns of the Republic of Ireland and Canada, 24 Journal of Broadcasting 225 (1980) notes that Canada and Ireland have certain features in common: (1) proximity to larger and wealthier countries broadcasting in same language; (2) significant and vital minority cultures and languages. Both similarities concern about impact of foreign broadcasts on national culture. The Study focuses on spillover of British TV into Ireland and compares with the Canadian experience in terms of programming services, regulatory mechanisms, legislative acts and official perceptions.

Peter Humphreys, The Goal of Pluralism and the Ownership Rules for Private Broadcasting in Germany: Re-Regulation or De-Regulation, 16 Cardozo Arts & Entertainment Law Journal 527 (1998) traces the transformation of broadcasting from traditional public service monopoly to dual, public/private multi-channel system in Germany. The article argues that formal re-regulation is in fact substantive deregulation. It details the key role of the Constitutional Court in the reregulation of German broadcasting and discusses the role of public service broadcasters as pluralistic counterbalance.

Laurence G.C. Kaplan, The European Community’s “Television Without Frontiers” Directive: Stimulating Europe to Regulate Culture, 8 Emory International Law Review 255 (1994) argues that the EC directive that half of TV time be European-made programming respond to real fear that European culture becoming Americanized. The article analyzes whether state can legislate culture and whether noting more than economic protectionism.

Marwan M. Kraidy, Broadcasting Regulation and Civil Society in Postwar Lebanon, 42 Journal of Broadcasting & Electronic Media 387 (Summer 1998) traces development of broadcasting in prewar Lebanon, describes wartime changes, and discusses postwar broadcasting regulation within framework of civil society. It calls for more inclusive regulatory framework to preserve national stability and media freedom.

Ki-Sung Kwak, Structural and Cultural Aspects of Regulation of Television Broadcasting in East Asia: A Comparative Study, 59(6) Gazette 429 (1997) compares degrees of constraints imposed upon television broadcasters in Hong Kong, Japan, and South Korea. It finds broadcasting restrained by law, morality and structure reflecting dominant common cultural factor, Confucian values.

Ven-hwei Lo, Edward Neilan, and Pu-tsun King, Television Coverage of the 1995 Legislative Election in Taiwan: Rise of Cable Television as a Force for Balance in Media Coverage, 42 Journal of Broadcasting & Electronic Media 340 (Summer 1998) studies TV election coverage. The study finds that state-owned stations are more likely than private cable channels to give greater coverage to ruling party candidates an concludes that cable TV has become force for balanced coverage. It also summarizes recent changes in broadcasting in Taiwan.

Gregory Ferrell Lowe, Competition and Restructuring: Value Transformation in Finnish Public Radio, 5 Journal of Radio Studies 99 (1998) examines restructuring of Finnish Public Radio when competition introduced in 1990 and concludes that the public service ethic is more durable and resilient than commonly suggested.

Timothy M. Lupinacci, The Pursuit of Television Broadcasting Activities in the European Community: Cultural Preservation or Economic Protectionism?, 24 Vanderbilt Journal of Transnational Law 113 (1991) examines dispute between US and EC concerning Directive requiring that EC states devote majority of TV time to European-produced programs. EC claims quota needed to preserve Europe’s cultural heritage, while US claims the quota is economic protectionism in violation of GATT and US Trade Act. The article concludes that US’s position lacks credibility given past US practice, and the need to fill program hours will lessen impact.

Stephen D. McDowell and Carleen Maitland, The V-Chip in Canada and the United States: Themes and Variations in Design and Deployment, Journal of Broadcasting & Electronic Media 401 (Fall 1998) shows that, while timing and thrust of V-chip policies are similar, technologies deployed differently, reflecting technical and industrial context, regulatory dynamics and legislative institutions and processes of each country. The article argues for greater legislative involvement in US, with CRTC making key decisions in Canada.

Arun Mehta, Media Regulation in India, 25 Media Asia 109 (1998) discusses proposed Broadcast Bill, identifying controversial issues. The article notes contradictions between democracy and free speech v. fears of foreign domination and for unity of large diverse country.

Eli M. Noam, Broadcasting in Italy: An Overview, Columbia Journal of World Business, Fall 1987, at 19 provides a historical overview of how Italian TV transformed from outmoded state-run bureaucracy into major force on European media scene and discusses reform legislation passed in 1984-1985.

Ann Plamondon, The Recent Past of Equal Access: American, British, and Italian Campaigns, 20 Communications and the Law 61 (Dec. 1998) provides a comparative study of laws regarding equal access to broadcasting in the United States, Great Britain, and Italy. After providing a short overview of the legal requirements for equal access in political campaigns in each country, the article examines challenges to the equal access requirements that arose in each country during recent national elections are examined. The article concludes with a short comparison and conclusion urging further research and stressing the importance of comparative research in this setting. It provides a useful beginning source for a brief overview of the equal access laws regarding political candidates access to broadcasting in the three countries covered. Nonetheless, it is of limited use as an example of comparative law methodologies, for the comparative section is very brief and subsumed under the general conclusion.

Ole Prehn, From the Public Sphere to the Market Place, Development of Local Radio in the Scandinavian Countries, 5 Journal of Radio Studies 84 (1998) discusses development of local radio in Denmark, Norway, and Sweden where it is established to facilitate local culture, to increase local awareness and identity, and to develop democracy. The articles finds that the ideals are not fully realized, but local radio is still important. Contrasting with experience in US and rest of Europe, the article argues that increasing internationalization will enhance role as local media.

Monroe E. Price, Comparing Broadcast Structures: Transnational Perspectives and Post-Communist Examples, 11 Cardozo Arts & Entertainment Law Journal 275 (1993) analyzes attempts by US and Western European academics to influence the media law in countries of the former Soviet Union, with a focus on the Russian Media Law of 1991.

Dan Rosen, Broadcasting in the Public Interest: Lessons from Japan, 7 Constitutional Commentary 35 (1990) describes NHK, the Japanese national broadcasting system. The article compares Japanese and US broadcasting laws and practices and suggests that Japanese system better serves the public interest.

Florian Sauvegeau, Millennium Blues, 23 Canadian Journal of Communications 133 (1998) discusses problems of Canadian Broadcasting Corporation (CBC) in broader framework of decline of public service broadcasting.

Amit M. Schejter, The Fairness Doctrine Is Dead and Living in Israel, 51 Federal Communications Law Journal 281 (1999) analyzes Israel’s adoption of a hybrid of US Fairness Doctrine and Western European doctrine of impartiality and describes how courts have used Fairness Doctrine as a norm and questions its contribution to free speech.

Paul Slanksy, Program Regulation and the Freedom of Expression: Red Lion’s Alive and Well in Canada?, 9 Canada-United States Law Journal 81 (1985). Part III describes Canadian program regulation. It Discusses how US doctrines regarding free speech have been applied in Canada.

Rodney K. Smith, Regulating Religious Broadcasting: Some Comparative Reflections, 1996 Brigham Young University Law Review 905 argues that regulation of religious broadcasting may be formal or informal. The article identifies examples of different kinds of regulations in different countries and identifies three regulatory models regarding religious broadcasting: (1) no access (e.g. China); (2) limited, preferential access for specified religious broadcasters; and (3) nonpreferential access for all religious broadcasters.

Ruth Elizabeth Teer-Tomaselli, The Public Broadcaster and Democracy in Transformation, 23 Canadian Journal of Communications 145 (1998) points out contradictions in goal of public service broadcasting to provide universal service of excellent programming while maintaining political independence and lack of financial means. The article tracks the transformation of South African Broadcasting Corporation from state broadcaster serving white, colored and Indian middle class to serving eleven official language communities.

Nelson Traquina, Western European Broadcasting, Deregulation, and Public Television: The Portuguese Experience, Journalism & Mass Communication Monographs 167, Sept. 1998 shows that despite the establishment of a new legal framework for audiovisual sector in Portugal in early 1990s, the new framework is still in shadow of old problems. Critical issues include role of public service broadcastings and financial problems due to small size of market. This article analyzes the present and future of Portuguese TV, especially public TV, and concludes that “savage deregulation” is a muddled path that confuses private operators and reduces the role of public service. It places Portugal’s experience with deregulation in the broader European context.

Stefaan Verhulst, Broadcasting: Public Service Broadcasting in Europe, 8 Utilities Law Review 31 (Mar.-Apr.1997) discusses Council of Europe’s Recommendation regarding independence of public service broadcasting and European Parliament’s Resolution on the Role of Public Service Television in the Multi-Media Society.

Jonathan Weinberg, Broadcasting and the Administrative Process in Japan and the United States, 39 Buffalo Law Review 615 (1991) compares broadcast licensing process in US and Japan. The article also examines cable television.

Uli Widmaier, German Broadcast Regulation: A Model for a New First Amendment?, 21 Boston College International & Comparative Law Review 75 (1998) claims that “revolutionary doctrinal visions” of Fiss and Sunstein, i.e., that state should act to promote first amendment values, have been realized in Germany. The article compares US and German regulation of the media. The article uses German constitutional court as reason to criticize Fiss and Sunstein for being too abstract and insufficiently concerned with concrete application.

CABLE REGULATION

Patricia Aufderheide, In Search of the Civic Sector: Cable Television Policy Making in Brazil, 1989-1996, 2 Communications L. Policy 563 (1997) describes process of shaping cable television legislation, with emphasis on civic activists’ struggle to establish a role for the public in the policymaking process.

Hyuhn-Suhck Bae and Thomas F. Baldwin, Policy Issues for Cable Startup in Smaller Countries: The Case in South Korea, 22 Telecommunications Policy 371 (1998) argues that the Korean cable industry, whose planning started in 1989 and whose first system was launched in 1995, is separated into 3 industries: network operators, program providers and system operators. The article states that laws prohibit vertical integration, horizontal concentration, and cross ownership and that performance of industry shows negative effects of these regulations and consequence that each part of industry regulated by different government units. The article describes regulatory and industry structure, regulations (such as import limits), problems, such as lack of original programming, and policy options, and urges flexibility.

INFORMATION INFRASTRUCTURE/INTERNET

Louis-Leon Christians, Convergence and Proceduralisation, 22 Telecommunications Policy 255 (1998), though abstract, suggests a new model of legal theory beyond the classic regulatory mode and that the competition law model is needed to deal with convergence of audiovisual and telecommunications

Bernard Clements, The Impact of Convergence on Regulatory Policy in Europe, 22 Telecommunications Policy 197 (1998) comments on EC’s Green Paper on regulatory implications of convergence of telecommunications, media and information technology sectors. The article describes consultative process, why convergence poses problems for regulators, the need to start debate now, structure of Green Paper, and a community v. national approach to regulation.

Lothar Determann, The New German Internet Law, 22 Hastings International & Comparative Law Review 113 (Fall 1998) provides a comprehensive introduction to German laws and regulations regarding the Internet and other advanced telecommunications services. It compares German content regulation with recent US attempts to regulate Internet content and discusses possible problems and challenges facing Internet regulation in Germany, including Federalism concerns and possible conflicts with existing EU regulations and policies.

John D.H. Downing, Global Networks Toward New Communities, 1999 The Promise of Global Networks 137 (Annual Review of the Institute for Information Studies) examines the misconceptions and over-simplifications of the oft-used concept of Internet-created “communities.” The article first points out that, while the meaning of what constitutes or is meant by a “community” can be vastly different depending on the context, for most of us the definition of a “community” contains several common elements. The article goes on to explore several different online social groups which, while differing considerably in the type of “community” that is created, exhibit some of these elements. The article concludes with a warning against attempting to adopt a single definition for what constitutes an online community and a call for a more expansive understanding of Internet groups as communities, one that recognizes a variety of differing elements and definitions of a communal group.

Matthew J. Feeley, EU Internet Regulation Policy: The Rise of Self-Regulation, 22 Boston College International & Comparative Law Review 159 (1999) provides a brief examination of EU Internet policy. It contains a short section on the history of EU internet regulation stressing that the EU’s initial desire to apply regulation is followed by an examination of the more recent EU’s acceptance of industry self-regulation. The conclusion applauds the EU decision to allow self-regulation, while also offering a note of caution about the adequacy of the self-regulatory approach.

George Charles Fischer, Brazil’s Telecommunication Law and the Internet, International Business Lawyer 184 (April 1996) states that the telecommunications regime structured in 1960s under military dictatorship provided for state control and became legal monopoly in 1988 Constitution. The regime is recently amended to permit private business. The article also discusses legal issues presented by the internet.

Alain Gardrat, Another Look at European Internet Law, 7 NYLS Media Law & Policy 28 (1998) identifies four issues requiring multilateral solutions: (1) freedom of expression (discussing “Gubler affair” involving book by Mitterand’s doctor and UK case Godfrey v. Hallam Baker); (2) electronic commerce; (3) distribution of products via internet and copyright; and (4) liability of Internet access providers.

M.J. Garfield and R.T. Watson, Differences in National Information Infrastructures: The Reflection of National Cultures, 6 Journal of Strategic Information Systems, 313 (1998) reports on different paths taken by US, UK, Germany, France, Japan, Singapore and China in forming NII. The article examines pervasive role of national culture in policy decisions and argues that country should look to similar countries in terms of culture when forming NII.

Klaus W. Grewlich, A Charter for the Internet, 22 Telecommunications Policy 273 (1998) argues that transnational nature of global networks reduced effectiveness of purely national or regional regulatory initiatives. The article argues that there is an increasing need for international cooperation to internationalize process of liberalization, deregulation and fair competition, as well as a need for common international legal framework of ordering principles. It asserts that the governments have a role to play.

Sarah B. Hogan, To Net or Not to Net: Singapore’s Regulation of the Internet, 51 Federal Communications Law Journal 429 (1999) describes how Singapore regulates content on the Internet. The article finds contradiction between desire to be information technology hub for Asia, while also eliminating content that threatens public or and national security, religious and racial harmony, and morality. The article employs licensing scheme under which there are only three Internet Access Service Providers and proxy servers are used. The author is concerned that use of proxy servers sacrifices speed and reliability while ineffective method of censorship.

Edward R Leahy & Michael O’Brien, Telecommunications Law and Technology in the Developing World, 22 Boston College International & Comparative Law Review 1 (1999) provides an outline of the various challenges facing telecommunications development in the “developing” world. Arguing that, given the currents needs and goals of the developing world, these challenges are unlikely to be met by international treaties and agreements, this article proposes that private foreign investment is a possible, perhaps the only, viable solution to “wiring” the developing world and insuring universal access to telecommunications services. The article concludes by advocating a regulatory system of “structured competition,” fostering competition through the separation of facility development and providing service to the end user. The article provides a good source for obtaining a basic understanding of the risks and benefits of telecommunications privatization.

Bella Mody, The Internet in the Other Three-Quarters of the World, 1999 The Promise of Global Networks 53 (Annual Review of the Institute for Information Studies) provides a sobering look at the reality behind the “globalization” of the Internet. The article first presents data on living conditions and access to communications technology in developing countries. It then points out that, in contrast to the “developed” world, people living in the developing or underdeveloped countries lack some of the most basic communications services that we take for granted, let alone access to computers and the Internet. Using this data, the article then cautions against making unrealistic expectations with regard to the power of the Internet to reach all parts of the globe and to raise the global standard of living. The article concludes by identifying several unique obstacles that need to be overcome if the Internet is to accomplish its full potential and by noting that, even should these obstacles be overcome, Internet access in the developing world will most likely be on a communal basis, rather than individual access accounts from private homes.

Luigi Prosperetti, The Regulation of Global Networks: A European Perspective, 1999 The Promise of Global Networks 53 (Annual Review of the Institute for Information Studies) notes that the emerging global information network has forced the re-examination of traditional country-specific, sector-specific, and technology-specific legal and regulatory frameworks both in the U.S. and in Europe. The article then stresses the need for regulatory restructuring with regard to the development of the Internet, a restructuring in which the European nations lag behind the US in implementing. It argues that although a centralized regulatory structure may provide the best solution to governance of the Internet, the existence of multiple layers of regulation (both at the federal/state and federal/supranational levels) combined with differing approaches to regulation in different countries make “second-best” solutions to the regulation of the Internet the most viable alternatives. To illustrate this point, the article outlines European and US approaches to privacy and e-commerce to demonstrate the “second-best” approach of competitive liberalization. In conclusion, the article calls for Internet policies to emphasize speed of deployment rather than coherent, deliberative frameworks of regulation, essentially sacrificing some “effort and resources” but increasing network growth and ubiquity.

Alan Ross & Jennifer Pawson, Crossing Guards on the Electronic Highway: The Basis for Federal Jurisdiction Over Convergence Technology, 3 Dalhousie Journal of Legal Studies 209 (1994) discusses the controversy regarding jurisdiction over the electronic highway.

Pairash Thajchayapong & Gritsana Changgom, Supervising the Internet in Thailand, 25 Media Asia 63 (1998) discusses the growth of the Internet in Thailand, analyzed the nature of the Internet in comparison with traditional media, discusses whether traditional legal regulations can apply to messages on the Internet, and identifies legal mechanisms that could be used to enhance internet usage and well-being of Thai people. It concludes that self-regulation is the most appropriate paradigm.

Caroline Uyttendaele & Joseph Dumortier, Free Speech on the Information Superhighway: European Perspectives, 16 Journal of Computer & Information Law 905 (1998) analyses from European point of view the need for free speech legislation on information superhighway. It argues for legislation to ensure universal access as required by ECHR, protect against “undemocratic” speech and to safeguard diversity.

LIBEL

Thomas A. Hughes, The Actual Malice Rule: Why Canada Rejected the American Approach to Libel, 3 Communication Law & Policy 55 (1998) discusses US libel reform possibilities by exploring the differences in US and Canadian political and legal culture that surrounds the differing standards for defamation law in the two countries. The article provides an excellent background on the historical and constitutional differences between Canada and the US, both generally and with respect to defamation law. The article concludes by comparing a recent Canadian case rejecting the actual malice standard with New York Times Co. v. Sullivan and notes the value of this comparison in examining US libel reform efforts.

Kyo Ho Youm, Libel Law and the Press, US and South Korea Compared, 13 UCLA Pacific Basin Law Journal 231 (1995) compares US and Korean defamation laws to examine how rules reflect differing assumptions regarding reputation and free press. The article looks at constitutional and statutory provisions, how interpreted by courts, and impact on the press.

Kyu Ho Youm, Suing American Media in Foreign Courts: Doing an End-Run Around US Libel Law?, 16 Hastings Communications/Entertainment Law Journal 235 (1994) compares US and English libel laws. It notes the trend to sue US media in foreign, especially, English courts and discusses the cases, legal rationale and policies and implications for US press.

Jae-Jin Lee, Freedom of the Press and Right of Reply Under the Contemporary Korean Libel Laws: A Comparative Analysis, 16 UCLA Pacific Basin Law Journal 155 (1998) provides an extended historical outline of freedom of the press and libel laws in South Korea since 1945. Subjects covered include: criticisms of the Korean right of reply arbitration system; the effect of socio-political changes in the 1990s on Korean libel law and the freedom of the press; and societal attitudes towards freedom of the press and freedom of speech. The article also attempts a comparison of Korean attitudes and laws regarding freedom of the press and libel laws with several other countries, including Japan, Germany, France, and the United States. To this end, the article attempts a very general overview of each country’s libel law.

Russell L. Weaver & Geoffrey Bennett, Is the New York Times “Actual Malice” Standard Really Necessary? A Comparative Perspective, 53 Louisiana Law Review 1153 (1993) compares US with British defamation law which is significantly more restrictive and how the media functions under the different standards. It concludes that British press, despite appearance of robustness, is far more timid than US and suggests that US’s actual malice standard in fact provides “breathing space” for press as intended.

ANTITRUST/OWNERSHIP REGULATIONS

Thomas Gibbons, Aspiring to Pluralism: The Constraints of Public Broadcasting Values on the De-Regulation of British Media Ownership, 16 Cardozo Arts & Entertainment Law Journal 475 (1998), with a focus on ownership regulation, sketches current media (and regulatory) arrangements in UK, the public service tradition, early deregulation (1990 regime), and further relaxation (1996 regime).

Alison Harcourt, The European Commission and Regulation of the Media Industry, 16 Cardozo Arts & Entertainment Law Journal 425 (1998) argues that national mono-media markets have been transformed into one European multimedia market, as laws liberalized and commercial broadcasting has grown and companies have engaged in mergers. It argues that regulation of media ownership has become European issue addressed by the European Commission and debates whether to have legislation specifically for media ownership. The article provides an overview of national regulation that could be harmonized or liberalized by future Commission initiative. Parts 2 and 3 details politicization of media concentration as European issue by European Parliament and the Commission’s response to Parliament. Section 4 discusses recent initiative on convergence; section 5 reviews role of DG IV’s merger task force; and section 6 discusses the Commission’s approach.

Frederic Jenny, Media Under French Competition Law, 21 Fordham International Law Journal 679 (1999) reviews some fifty opinions of Conseil de la Concurrence concerning competition issues in media. The Conseil investigates and adjudicates cases that have goal or effect of retraining competition and advises regarding mergers.

John Temple Lang, Media, Multimedia, and European Community Antitrust Law, 21 Fordham International Law Journal 1296 (1998) discussed EC antitrust law issues that have arisen in connection to cinema, radio, TV (including cable, satellite and terrestrial), video and sound recordings, multimedia, Internet, newspapers and magazines. Part 1 discusses general principles and directives that influence multimedia law. Part 2 examines relevant markets. Part 3 reviews evidence of dominance. Part 4 looks at impact of multimedia on broadcast of sports and performing rights societies. Part 5 discusses merges. The article concludes that European media industry has not fully comprehended inter-relationship of media and EC antitrust law.

Carles Llorens-Malquer, European Responses to Bottlenecks in Digital Pay-TV: Impacts on Pluralism and Competition Policy, 16 Cardozo Arts & Entertainment Law Journal 557 (1998) provides an overview of the development of digital pay-TV in Europe and the regulatory issues raised by this development including debates over compatibility. It discusses the potential for anti-competitive conduct where firm attempts to use control over one part of the market to gain competitive advantage in a related market, e.g., conditional access system, electronic program guides. The article examines EU position and compares regulatory approaches taken in UK and Spain.

Christopher T. Marsden, Regulating Media Owners in Digital Television: Lessons from UK Policy Formation, 16 Cardozo Arts & Entertainment Law Journal 501 (1998) discusses government’s proposals for media ownership liberalization in UK.

Stefaan Verhulst, European Responses to Media Ownership and Pluralism, 16 Cardozo Arts & Entertainment Law Journal 421 (1998) provides a short introduction to collection of articles, which examine how European member states have re-examined their regulatory framework based on public policy objective of safeguarding diversity of views and ensuring pluralism. It notes strategic activities of corporations in response to converging technology and liberalization of markets. It also considers national v. regional regulation and problems faced by European Commission in harmonizing national regulations.

FREE PRESS/FAIR TRIAL

Michael Chesterman, OJ and the Dingo: How Media Publicity Relating to Criminal Cases Tried by the Jury is Dealt with in Australia and America, 45 American Journal of Comparative Law 109 (1997) argues that US and Australia have similar procedures for jury trials in criminal cases, but different approach to media publicity. It describes and compares how each country deals with prejudicial publicity.

John Cooke, Contempt and the Media, Media Law & Practice (April 1986) compares restrictions imposed on the press, with a focus on the sue of the contempt power, in reporting on trails in England, US and France. It looks at role of contempt in context of US Constitution and European Convention on Human Rights.

EUROPEAN COMMUNITY/UNION

Richard Collins, The Screening of Jacques Tati: Broadcasting and Cultural Identity in the European Community, 11 Cardozo Arts & Entertainment Law Journal 361 (1993) discusses tensions within Europe between view of media as culture v. product.

Eamonn G. Hall and Patrick McGovern, Regulation of the Media: Irish and European Community Dimensions provides a revised and expanded version of the Irish Report to the 11th Congress of the Federation Internationale Pour le Droit Europeen held in 1984. It notes that WARC held in 1977 adopted rules for Europe, Africa and Asia concerning allocation of frequencies and orbital positions for DBS. Most European countries are authorized to use 5 TV channels. The article also discusses regulation of broadcasting in Ireland and how broadcasting is affected by EC law. It concludes that, despite trend toward deregulation, some regulation is needed because more wish to broadcast than frequencies available.

Timothy M. Lupinacci, The Pursuit of Television Broadcasting Activities in the European Community: Cultural Preservation or Economic Protectionism?, 24 Vanderbilt Journal of Transnational Law 113 (1991) examines dispute between US and EC concerning Directive requiring that EC states devote majority of TV time to European-produced programs. EC claims quota needed to preserve Europe’s cultural heritage, while US claims the quota is economic protectionism in violation of GATT and US Trade Act. The article concludes that US’s position lacks credibility given past US practice, and the need to fill program hours will lessen impact.

Kevin Robins & David Morley, Euroculture: Communications, Community, and Identity in Europe, 11 Cardozo Arts & Entertainment Law Journal 387 (1993) examines relationship between communication, culture and community in Europe.

Eli Skogerbo, External Constraints and National Resources: Reflections on the Europeanisation of Communications Policy, 14 Telematics and Infomatics 383 (1997) responds to comparative study of media policy by Austrian Josef Trappel, who claimed that small states have lost most of their autonomy in media policy because of internationalization of markets and regionalisation of political authority. It discusses external constraints as well as characteristics of smallness that the states may maintain independent or autonomous action. The article illustrates with examples from Norway, Denmark and the Netherlands.

Barbara de Smith, Broadcasting and Northern Ireland: Constitutional Issues?, New Law Journal (Sept. 14, 1989), at 1240 discusses the case, R. v. Secretary of State for the Home Department ex p Brind (1989) challenging ban on certain broadcasts connected with Northern Ireland. The ban was challenged as inconsistent with Article 10 of European Convention on Human Rights.

Paul Spink and Ross Petty, Comparative Advertising in the European Union, 47 International and Comparative Law Quarterly 855 (1998). In 1997, the EU adopted a directive designed to harmonize disparate national law regarding comparative advertising. The article examines the background, rationale and substance of the new legislation. It also addresses the impact on UK law and compares to US case law and FTC policy regarding comparative advertising.

Rebecca Wallace and David Goldberg, Television Broadcasting: The Community’s Response, 26 Common Market Law Review 717 (1989) describes provisions of the final text of the Directive on Television issued in October 1989. It argues that, because broadcasting considered service, the directive falls within Treaty of Rome’s provision regarding freedom to provide services.

TRADE/INVESTMENT

Sandrine Cahn and Daniel Schimmel, The Cultural Exception: Does It Exist in GATT and GATS Frameworks? How Does It Affect or Is It Affected by the Agreement on TRIPS?, 15 Cardozo Arts & Entertainment Law Journal 281 (1997) examines the impact or lack of impact of several international trade agreements on the trade of cultural commodities such as television and movie productions. Specifically, the article examines the treatment of cultural products in the GATT (General Agreement on Tariffs and Trade) agreement prior to the Uruguay Round, in the GATS (General Agreement on Trade in Services) agreement, and in NAFTA (North American Free Trade Agreement). The article concludes that, while the agreements on culture reached in the Uruguay Round and the cultural exclusion clause in NAFTA contain cultural protections not found in the original GATT agreement, those protections have had a limited effect on trade in cultural goods and have done little to lessen European and Canadian concerns about cultural domination by the unhindered exportation of US-produced cultural products.

Donna Coleman Gregg, Opening the International Television Market to Greater Program Diversity, North Carolina Journal of International Law & Commercial Regulation, Spring 1989 divides countries into four tiers and identifies forces for change. It provides a broad-brush, somewhat dated overview.

Anne Moebes, Channels of Communication are Opening in Eastern Europe, 10 U. Miami Entertainment & Sports Law Review 1 (1993) examines investment opportunities for US media enterprises in Eastern Europe in film, broadcasting, cable, and print. It also considers the climate for US entry by examining political instability, legal climate, financial or investment barriers, and competitive barriers. The article cites examples from numerous countries including Poland, Hungary, Bulgaria, Romania, Czechoslovakia, Yugoslavia, and Albania and concludes that there are some good opportunities for US media investors although some countries closed. The author is with NTIA.

Krista Schwarting Rose, Changing Frequencies: The FCC Globalizes the Telecommunications Industry with the Adoption of the WTO Agreement, 8 Minnesota Journal of Global Trade 161 (1999) examines US restrictions on foreign ownership of telecommunications companies under 310 and multilateral treaties. It concludes that FCC use of WTO Agreement on Basic Telecommunications Services as standard to judge whether foreign countries permitted to invent in US telecom is reasonable.

Phillip L. Spector, The World Trade Organization Agreement on Telecommunications, 32 International Lawyer 217 (1998). In February 1997, sixty-eight countries signed agreement on basic telecommunications service known as GBT agreement, for Group on Basic Telecommunications and agreed to open markets to foreign competition. The article argues that the agreement will significantly enhance competition and signals shift in approach to telecommunications regulation.

ADVERTISING

Daniel E. Frank, Regulating Television Advertising in the European Community and United States: Preventing Harm to Children, 1992 University of Chicago Legal Forum 399 compares Article 16 of Television without Frontiers Directive with CTA and FCC regulations. It also discusses constitutional restrictions on commercial speech and urges US to consider enactment of similar measures.

William G. Frenkel, Legal Regulation of Advertising in Russia, 4 Parker School Journal of Eastern European Law 129 (1997) states that the advertising industry in Russia is young and growing and that until 1995 Russia had no comprehensive law governing advertising practices. The article analyzes new Law on Advertising, which governs production, placement and dissemination of advertising and whose goal is to protect from unfair competition and injury to consumer, preserve principles of morality and humanity and to provide for extraterritorial jurisdiction. The article describes various provisions of this controversial law, which provides for self-regulatory groups in enforcement process.

David Harland, The Control of Advertising—A Comparative Overview, 1 Competition & Consumer Law Journal, Oct. 8, 1993. Written by an Australian, this article reviews legal techniques for regulating misleading and unfair advertising using examples from numerous countries, including Germany, Finland, Brazil. Discusses general issues, such as definition of advertising, and specific issues including product claims and burden of proof, comparative advertising, advertising and information, advertising and freedom of speech, and sanctions and enforcement.

David Tucker, Representation-Reinforcing Review: Arguments about Political Advertising in Australia and the United States, 16 Sydney Law Review 274 (1994) explores why the Australian High Court is willing to review electoral advertising in Australian Capital TV case and how it follows ideas from the US Supreme Court.

SATELLITES

Paul Mallam, Legal Aspects of the Globalization of Pay TV, 2 Entertainment Law Review 43 (1993) provides an overview of future developments and likely regulatory implications in Asia/Pacific region; legal issues associated with international pay TV and Australian perspective on this issue.

MISCELLANEOUS OR MULTIPLE TOPICS

David S. Bogen, Telling the Truth and Paying for It: A Comparison of Two Cases--Restrictions on Political Speech in Australia and Commercial Speech in the US, 7 Indiana International & Comparative Law Review 111 (1996) analyses 44 Liquormart and Langer v. Commonwealth (decision of Australian High Court). US Supreme Court found state could not suppress truthful commercial speech while Australian Court permitted suppression of truthful political speech.

Douglas Bicket, Drifting Apart Together: Diverging Conceptions of Free Expression in the North American Judicial Tradition, 20 Communications and the Law 1 (Dec. 1998) compares US and Canada’s diverging approaches to free expression. It argues that Canadian Charter of Rights and Freedoms adopted 1982 has not led to wholesale expansion of US-style individual free expression rights as forecast. Rather, Canadian Supreme Court has given priority to social or communitarian values over individual rights while US preserves or expands libertarian conceptions of individual rights. The article reviews recent cases concerning libel, free press/fair trial, hate speech and obscenity.

Les P. Carnegie, Privacy and the Press: The Impact of Incorporating the European Convention on Human Rights in the United Kingdom, 9 Duke Journal of Comparative & International Law 311 (Fall 1998) examines the effect that incorporation of Article 8 and 10 of the ECHR into the domestic law of the UK is likely to have on an individual’s right of privacy, which was previously unrecognized in English common law, and on the freedom of the press. The article concludes that, while encouraging, this incorporation does not fully guarantee a right of privacy, because the ECHR guarantees are only applicable with regard to State invasions of privacy, not private third parties. It concludes by arguing that privacy invasion by the private media are best protected not through incorporation of the ECHR, but through an expansion of the existing common law remedies and new legislative enactments.

Richard Collins, Back to the Future: Digital Television and Convergence in the United Kingdom, 22 Telecommunications Policy 383 (1998) argues that introduction of digital terrestrial TV in UK exemplifies change in media policy in which control of market entry has shifted from government to firms. It points out that the transition to digital offers significant efficiency gains, but also consolidation of already significant market power enjoyed by dominant firms. The article considers alternative methods of delivery of dTV and concludes that competition based policy and regulation is necessary but not sufficient.

Paul Murschetz, State Support for the Daily Press in Europe: A Critical Appraisal, 13 European Journal of Communication 291 (1998) compares subsidy schemes for daily newspapers in Austria, France, Norway and Sweden, whose purpose is to promote diversity of views and guarantee citizens access to information so they can actively participate in political process. The article contrasts these schemes with the Anglo-Saxon minimalist approach.

Myriam Sahraoui, Putting More Colour into the Dutch Media, 45 Media Development 22 (1998) describes initiative in Netherlands to help minorities gain access to journalism and broadcasting.

Pablo T. Spiller and Carlo Cardilli, Towards a Property Rights Approach to Communications Spectrum, 16 Yale Journal on Regulation 53 (1999) critiques current method of spectrum allocation as inefficient and wasteful of resources. After a brief outline of current methods of spectrum allocation in the United States, the article argues for a change to a property rights approach which would allow for free transfer of rights and uses. It outlines recent experiments with property-based schemes in New Zealand and Guatemala and notes the viability of such an approach in the US market.

Silvio Waisbord, When the Cart of Media Is Before the Horse of Identity: A Critique of Technology-Centered Views on Globalization, 25 Communications Research 377 (Aug. 1998) challenges position that media shape national and transnational identities. It focuses on the formation of national and regional cultures in Latin America.

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