2. BROADCASTING AND DIGITAL MEDIA REGULATORY AND POLICY CHALLENGES IN 2017
2017 WILL SEE MOMENTOUS CHANGE IN THE EUROPEAN DIGITAL MEDIA ENVIRONMENT
Fundamental changes in the operation of Digital Media Infrastructure by virtue of the European Electronic Communications
Code (EECC) will be matched by changes in the nature of this type of content (Audio-Visual Media Services Directive). There
will be significant impacts on how digital information is both protected (Network Information Security Directive) and accessed
(Genera Data Protection Regulation). As significant as this will be, this will in many ways be matched, if not over shadowed, by
Brexit. How exactly this will work and the impact upon your business can only be accurately assessed with the provision of
much more information than we have at the moment. Evaluating how best to engage with any relevant regulatory changes, that
may impact upon your business, including the degree to which an Irish presence assists your business plans is something that
McMunn Media Regulatory Advisory Services can help you with. Our approach will always be to minimise risk while
maximising commercial opportunity.
THE ISSUES
In 2017, Media in Ireland and the UK is facing massive change and disruption. Fundamental changes in relevant EU regimes,
Brexit and review within both broadcasting (RTE) and Telephony (Eir) incumbents will all alter the Digital Media Landscape.
An unprecedented number of Government agencies, be it Commission for Communication Regulation, the Broadcasting
Authority of Ireland, The Department of Communication and the Department of Jobs, Enterprise and Innovation all have
reform agendas for this sector over the next 2-3 years, starting now.
The European Commission are planning major changes to the framework around the infrastructure/platforms for digital media
(European Electronic Communications Code) and the actual content (Audio-Visual Media Services Directive). This is all within
the context of the Digital Single Market and Brexit.
How platform and content providers interact throughout the entire supply chain from infrastructure, through content to
ultimate end-user will all change.
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3. The Broadcasting Authority of Ireland (BAI) and the Department of Communications, Climate Action and Environment (DCCAE)
are reviewing a number of issues within the context of revisions to European Law generally (primarily the Audio Visual Media
Service Directive (AVMSD)) and also the potential impact of Brexit. All of these activities are likely to have an impact on
broadcasters/advertisers and early interaction and engagement with relevant authorities will be key.
AREA INSIGHT
Implications of Brexit The BAI will commence formulating a strategy on Brexit in H1 2017 for implementation from
2018/2019 onwards. The likely withdrawal of the UK from Customs Union/Single
Market/EEA means that unlike EEA countries, the UK will not be in a position to rely upon
the AVMSD going forward. This is a matter that will be the subject of much interest and
engagement by all interested parties.
Telecommunications
Framework
Major implications for Telecommunications Networks Providers through the European
Electronic Communications Code and the Network Information Security Directive.
Digital Single Market The Digital Single Market (DSM) within Europe will be implemented by way of a number of
measures, including significant alterations to the Electronic Communications Framework
(ECF) OF 2002. The Commission for Communication Regulation (ComReg) in Ireland
intends to put a lot of time and resources into this issue.
Opt-Out Advertising Opt-Out Advertising generally will come under greater scrutiny in 2017 and beyond,
regardless of Brexit. The current proposed revisions to the review of AVMSD will allow for
the imposition of financial contributions on both traditional “opt-out” broadcaster and also
On Demand services such as Netflix.
User Generated Content
Services
There is also potential for certain forms of User Generated Content services (YouTube
Channels being a key example) to be faced with similar charges.
In the context of ever evolving technology resulting in the ever increasing fragmentation of the traditional broadcast advertising
market, there will be a continuing search for revenue streams to assist indigenous content in whatever way may be permissible
under relevant Law. Both traditional commercial broadcasters and Digital Content providers can expect further activity in this
area and close monitoring and scrutiny of these issues is likely to be business critical. McMunn Media Services has twenty years
experience in the digital media environment that can assist in ensuring that not only does regulatory activity not limit your
business but can actually assist it.
1. LICENCING AND REGULATION – KEY INSIGHTS
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4. Given the ever increasing pressure on indigenous broadcasters and their revenues stream, regulatory authorities and opinion
formers will be seeking different ways to ensure that Irish audiences continue to receive Irish content. The Online/On Demand
space is already experiencing regulation in the form of the UK ATVOD (Authority for Television on Demand) and Irish ODAS (On
Demand Audiovisual media Services) type codes and this will continue to increase.
The minority coalition political environment also means that individual lawmakers are obtaining more opportunities for “private
members” draft legislation which is likely to become more prevalent
AREA INSIGHT
BAI - Broadcast Services
Strategy
While likely to be more relevant in the context of radio services, the BAI will be reviewing the
type of services that are commercially available in Ireland and whether there needs to be
additional services of a particular type.
Mandating of specific
Content
An opposition TD has already gathered an initial level of support to obliged Irish radio
broadcasters to carry a specific quantity (currently estimated at 40% of overall music output)
to be “Irish” music. This will result in significant legal and logistical issues (as a form of
discrimination/state aid). This is entirely against the whole train of Irish broadcast policy to
date which has stayed away from being prescriptive about content except where required by
EU Law.
Internet Content
Governance Advisory
Committee (ICGAG)
The Department of Communications, Climate Change, and Environment (DCCCAE) is
working on this issue currently. This process will be in conjunction with legislative proposals
to deal with issues such as Online harassing/bullying/revenge porn.
Consumer protection The Digital Single Market and European Electronic Communications Code (DSMEEC) will
have significant impact upon content provisions particularly around consumer protection
These factors are simply part of an overall media environment which will see even greater strains on indigenous broadcasters. It
is imperative for indigenous broadcasters/digital media service suppliers to ensure that their concerns and views are heard and
addressed in any regulatory changes that are intended to deal with technical and cultural changes giving rise to audience
fragmentation as well as the challenges of Brexit.
2. CONTENT – KEY INSIGHTS
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5. In relation to Media Rights generally, the ever increasing amount of regulation as summarised in this briefing note, combined
with the potential impact of the E-Commerce Directive and the Digital Single Market mean that the revenue and cost models of all
content, be it commercial or editorial needs to be reviewed to ensure appropriate margins and cost/benefit analyses.
Some factors that are immediately apparent are below.
AREA INSIGHT
The revised BAI Revised
Commercial
Communications Code
This Code is in place from March 2017 onwards. The current draft of this Code may be
altered/supplemented by further alterations in respect of alcohol (as the Public Health
Alcohol) Bill is progressing.
Value of Media Rights The cost and pricing of the following rights will all need to be as efficient and effective as
possible:
• Content: Whether this is in relation to conventional broadcast or digital media.
• Music (and other underlying rights): As the digital media economy expands there are
significant pressures in relation to underlying rights.
• Maximise commercial exploitation of rights: Whether this is micro-payment on digital
platforms or the use of Premium Rate Services this will all need to suit your business needs.
The Digital Single Market
and European Electronic
Communications Code
This Code is likely to have an impact upon cost in relation to Consumer Protection measures
and it is also likely that it will impact upon Over The Top (OTT) services in particular.
Network Information
Security Directive
This Directive has the potential to increase costs and complexity.
McMunn Media Services will work with you to ensure that your commercial arrangements for media content (both commercial
and content) are both commercially and corporately appropriate to your organisations overall goals.
3. COMMERCIAL IMPACT – KEY INSIGHTS
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6. DAVID MCMUNN – BRIEF BIOGRAPHY
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David McMunn is a communications/media professional with 20 years of legal, regulatory, corporate and commercial
experience. He has extensive knowledge of the Irish, EU and UK regulatory and legal frameworks for the broadcast/
telecommunication sector and is a qualified Solicitor and Mediator in both the Republic of Ireland and the UK (England and
Wales).
Career highlights to date include:
• 14 years’ experience in senior management (including Company Director level) roles in Worldcom, TV3 and UTV Ireland.
These are complex, multi-jurisdictional organisations with multiple shareholder/stakeholder engagement on diverse issues
such as employment, public policy and communications strategy. As part of his senior management roles, David has
developed crisis management skills with significant knowledge and experience of dealing with corporate, regulatory and PR
implications of issues that may arise.
• Significant experience of leading industry lobbying and other collaborative engagement at a national and EU level including:
• Part of a joint industry/British Government Delegation to the G8 from 2000-2002 : Washington Hi-Tech Crime sub-
group;
• Part of an IBEC “Better Regulation” taskforce-2005/2007 engaging with Irish government agencies and departments
(including Department of the Taoiseach); and
• Regulatory specialist for cross media industry engagement with multiple government departments and agencies in
relation to Alcohol Advertising 2011-2016.
• David has also played a key role in initiating and delivering:
• Real change in Broadcast Regulation and Law: Drafted and delivered the TV3 State Aid Complaint that led to the
Broadcast Act 2009. This involved engagement with EU and Irish Government at all levels;
• The designation of a Telecommunication Infrastructure Provider (RTE Networks) as an operator with Significant Market
Power (SMP) by the Commission for Communication Regulation; and
• Formulated and delivered a significant part of the Innovative uses of Broadcasting Law including the licensing of 3e and
UTV Ireland on a Free To Air (FTA) basis (2008 and 2014 respectively) and the increase in TV3 commercial minutage
2010.
• A summary of David’s Consultancy/Practice Areas in Regulation, European Union/Brexit, Negotiation and Mediation is
presented overleaf.
7. AREA SUMMARY OF EXPERTISE MAIN AREAS OF PRACTICAL APPLICATION
1. Regulation • Expert knowledge of the EU and Irish
legal/regulatory frameworks as it applies to
media/telecommunications market.
• First hand Experience of Cyber-Security Issues-
part of UK Government G8 Negotiation Team on
Cyber Crime 19990-2001
• Specialist in content and copyright regulation
(broadcast and online).
• Significant experience of engagement (on both
one company and also cross company/sectoral
basis) with relevant institutions and personnel at
EU and Irish level in relation to Irish and EU
law/regulation (primarily in relation to areas such
as intellectual property and advertising
/commercial activities generally).
• Cost and resource effective assessment,
engagement, review of all applicable Irish
broadcasting (Broadcasting Authority of Ireland)
and Telecommunications (Commission for
Communication Regulation-ComReg) regulation
in ROI in relation to both content and
infrastructure.
• Assistance/Engagement at regulatory and
governmental level in respect of all legal
/regulatory issues.
• Commercial optimization of licence to include
review with all relevant client company personnel
of all commercial/revenue opportunities arising
from licence e.g. Product Placement, Premium
Rate telephony services, interactive services
generally.
2. European
Union/Brexit
• Expert knowledge of the EU and Irish
legal/regulatory frameworks as it applies to
media/telecommunications market.
• Knowledge of and experience within relevant EU
institutions and UK and Irish regulatory bodies.
• One stop shop advice available to enable the
assessment of feasibility of transfer OFCOM
licence entities to relevant ROI licences (from
initial engagement with regulator to assistance
with negotiating with relevant platforms, music
rights licencing bodies etc.)
• To allow the assessment of the feasibility of the
change of the Country of Origin of broadcast
signals/stations with minimal disruption/cost to
ensure that UK broadcasters can continue to avail
of Audio Visual Media Services Directive
(Freedom of Movement within EU, continued
compliance with EU and Independent quotas etc.)
CONSULTANCY/PRACTICE AREAS (1 OF 2)
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8. CONSULTANCY/PRACTICE AREAS (1 OF 2)
AREA SUMMARY OF EXPERTISE MAIN AREAS OF PRACTICAL APPLICATION
3. Negotiation • Provision of specific market information and
advice in any contract/authorisations necessary
for broadcast/telecommunications operators.(e.g.
carriage agreements, music clearance agreements
etc.
• Provision of ongoing market information
(including appropriate process/checklist
assistance) to allow for risk minimization and
management in respect of Content liability, Data
Protection, Corporate Issues generally.
• General commercial advice in respect of
contractual/Irish market matters generally in
respect of production companies, hardware
suppliers, talent/HR management issues.
• Advice and Assistance of all contractual issues
mandated by law –Music Rights licences, Carriage
Agreements etc.
• Provision of Checklists/processes and training is
respect of matters such as content liability, Data
Protection, corporate issues generally.
• Provision of Advice and Assistance particularly in
relation to media rights generally including
costs/pricing of rights.
4. Mediation • Qualified CEDR Accredited Mediator (recognised
in UK and ROI)
• Extensive experience of mediation in respect of
complex Commercial Disputes and Human
Resources Issues
• Experienced as both a mediator and in
representing parties at mediation/alternative
dispute resolutions procedures
• Cost and resource effective method of resolving
both Internal (HR) and external disputes
confidentially and quickly
• Combined with background in Intellectual
Property and senior management ensures that
David is well placed to advise/mediate complex
disputes in the broadcast/telecommunications
environment
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