1. CELLULAR OPERATORS’ JOINT PRESENTATION 3 May 2006
FILMS AND PUBLICATIONS AMENDMENT BILL,
27 OF 2006
CELLULAR OPERATORS’
JOINT PRESENTATION
3 May 2006
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2. Structure of Presentation Part A: General Comments
INTRODUCTION
Structure of Presentation
Part A: General Comments
Part B: Specific Comments
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3. PART A GENERAL COMMENTS
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4. OUTLINE OF PRESENTATION
CONTENT ON MOBILE NETWORKS
INTRODUCTION
CONTENT PROVISION OVER MOBILES
Content Value Chain
Challenges for Mobile Operators
OPTIONS OF REGULATION
OPERATORS CODE OF GOOD PRACTICE
Background and Timeframes of Negotiations
Alignment with International Best Practice
Key Commitments Under the Code
WASPA CODE OF CONDUCT
Support by Cellular Operators
Operators Code of Good Practice enforces WASPA Code
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5. CONTENT PROVISION OVER MOBILES
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6. INTRODUCTION CONTENT ON MOBILE NETWORKS
There are a variety of means that any content may be accessed by a mobile subscriber, for example:
Content portal of a Mobile Operator – “MTN Loaded / Vodafone Live / Cell C Juice”
Third party content providers – by agreement with Mobile Operator
The Internet
Peer to peer communications
Content can be requested and delivered via:
SMS, IVR, WAP, WIG, USSD, MMS
Content can be requested on one bearer and delivered on another.
This presentation will address these means and entities in an effort to explain the complexities involved in the accessing of mobile content.
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7. STAKEHOLDERS These entities can be loosely classified as :
Content creators
Content distributors (Internet Service Providers (ISPs), website owners, Wireless Application Service Providers (WASPs).
Third party content aggregators (WASPs with own infrastructure)
Portals
Network operators; and
Consumers
All of the abovementioned parties play a role in the development of advertising and delivery of services of which adult content provision is a portion
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8. AREAS WHERE MOBILE OPERATORS DO NOT HAVE CONTROL
The Internet as an Open Network (not operator business)
Inherently the internet is the ultimate open network. Any destination is an accessible IP address, therefore the Mobile Operators do not have control over content accessed by its subscribers via the internet.
It is ultimately the responsibility of the person to whom the communication is destined to secure the content
The enacted balance between civil liberties and consumer protection must be managed
Peer to Peer Communications (subscriber responsibility)
Direct communications between individual subscribers (ex. SMS, MMS)
Operators may not access or intercept communications in terms of the Constitution and privacy legislation ( interception is facilitated in terms of RICA)
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9. AREAS WHERE MOBILE OPERATORS DO NOT HAVE CONTROL1
Consumer
Content Creator
Content Distributor
Third party
Content Aggregator
Portal
Network operator 2
The Mobile Operators have little control over the WASPS due to contractual relationships based on the use of numbers and the use of their networks. Due to the level of control, the Mobile Operators have taken a number of self regulatory steps which will be explained below.
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10. OPTIONS OF MOBILE OPERATORS
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11. OPTIONS FOR REGULATION OF WASP CONTENT DELIVERED TO MOBILE HANDSETS:
Formal regulation:
Little or no flexibility could be the consequence
Difficult to keep track of developments in fast moving telecoms market
Can act as a platform for action against abuse by external parties over whom Operators have no control (eg. Spam and spammers) but does not negate the right to include self-regulatory mechanisms
ECT & EC Acts
Films and Publications Act
Co-operative self-regulation:
Flexible, keeps track of developments and is already in place
Preferred option as far as reasonably possible
Common commitment to development of the market in a way that will meet customers’ and other stakeholders’ concerns
Industry Representative Body Code (IRB Code)
WASP Code of Conduct
WASPA MOU
The mobile industry is faced with four options:
Do nothing. This head-in-the-sand approach is not an option for mobile cellular companies pride themselves as being good corporate citizens.
Formal regulation. Although formal regulation has its place in regulating certain activities it does not provide the flexibility necessary in a fast moving telecoms environment. In the South African mobile content market, we have formal regulation in terms of the Electronic Communications and Transactions Act and the Films and Publications Act.
Unilateral action. Although this is better than no action, there is the possibility that individual approaches will differ and that the policy objectives will not be met by such a scattered and inconsistent approach.
The final option is the preferred option and indeed the option that the mobile market in South Africa has followed. In terms of the co-operative self-regulation framework, industry players have committed themselves to the development of the market in a way that will meet the needs of the consumers and policy makers. In South Africa, we have the Mobile Cellular Operator’s Code of Good Practice and the WASPA Code of Conduct which address the need for self regulation.. These codes set out the broad policy commitments implementation is however left up to each operator to determine.
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12. IRB Code
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13. Formal regulation: IRB CODE ECT Act 25 of 2002
Chapter XI: Limitation of liability for Service Providers acting as conduits of content
Code of good practice signed by Mobile Operators and effective as of 2 November 2005
However, the Mobile Operators are to resubmit to the Minister in light of recently published guidelines for IRB Codes
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14. OPERATORS CODE OF GOOD PRACTICE
Key provision under the IRB Code Mobile Operators:
Facilitate compliance by WASPs to WASPA code of conduct and WASPA advertising guidelines
Introduce procedures to receive and respond to take down notifications
Place an obligation on WASPs not to place advertisements depicting explicit sexual content and must not be placed in general media.
Introduce measures to prevent access by children to adult content.
Undertake not to spam.
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15. WASP CODE OF CONDUCT
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16. PROVISIONS IN THE WASP CODE OF CONDUCT
MTN and Cell C mandate membership to WASPA
Vodacom contractually mandates compliance with WASPA code of conduct, advertising guidelines and complaints resolution procedure
The Mobile Operators contribute to WASPA’s operating expenses until it is sustainable
The Mobile Operators require WASPs to use a separate number range for the provision of content of an adult or sensitive nature
WASPs have six (6) months (until September 2007) to migrate ALL content of an adult and sensitive nature to a separate number range
Operators to educate consumers regarding the nature of content provided via the separate number range
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17. PART B COMMENTS ON PERTINENT SPECIFIC PROVISIONS
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18. OUTLINE OF SPECIFIC COMMENTS IN THE SUBMISSION
SECTION 1:
The definition of child abuse as per submission
The definition of internet service provider
The definition of chat rooms
SECTION 2:
References to broadcasting & mobile handsets
The inclusion of a classification office & compliance officers
Classification of ALL content
Exemption of certain material
The business of adult premises
Internet and access / Service Provided
CONCLUSION
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19. SECTION 1- DEFINITIONS
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20. Section 24C(1) Definition of “internet service provider”
Concern:
distinction between internet service providers & mobile operators
providing a chat room service vs. hosting a website
Recommendation:
“24C (1) Service providers who provide child-oriented services, including chat-rooms, shall –
(a) ….”
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21. Definition of “chat room”
Concern:
requirement to monitor a chat room service should be placed on a chat room moderator
right to customer privacy
inability of mobile operators to monitor
Chat room = real time or on-line
SMS & MMS = peer to peer private communications and such privacy may not be infringed
Recommendation:
“ chat-room means a World Wide Web site in which people hold discussions by sending
messages to people on the same site in real time, both generally and on a peer to peer
basis”.
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22. SECTION 2
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23. Section 2(a) Reference to broadcasting
Concern:
Contravention of s192 of the Republic of Constitution of the Republic of South Africa Act No. 108 of 1996
Protection against age-inappropriate broadcasts
- Electronic Communications Act ( 2005)
- Broadcaster’s Code of Conduct
- WASPA Code of Conduct
- ASA Guidelines
Recommendation:
Delete the reference to “broadcasting” from section 2(a)
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24. Section 2(a) Reference to mobile handsets
Concern:
If mobile handsets are mentioned then, what about computers, television and printed media?
Platform VS content: Regulation ought to be on the internet
Technology neutral approach is preferable (ECT Act)
Recommendation:
Delete reference to handsets as it is not a content category.
The legislation should be technologically neutral.
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25. Section 9A Classification Office
Concern:
Potential capacity constraints if all content is to be classified
The timeframes for classification submissions are not addressed?
Recommendation
Strict time frames for classification must be stated and adhered to
Support an approach of co-regulation to alleviate capacity constraints
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26. Section 18 Registration of Films and Games (Classification)
Concern:
Innovation will be hampered
Time to market of latest material determines the success of mobile content
Constraints to timeous classification and delivery to markets
Purpose of classification of ALL content
Recommendation in conjunction with s 3.1
Strict time frames for classification.
Support an approach of co-regulation to alleviate capacity constraints
Propose that an existing self regulatory bodies and other bodies such as IRB work with FPB
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27. Section 23 Exemptions Concern:
Board’s discretion is limited to only Films - s23(2)
Fundamental limitation and negation of discretionary powers
Exemption does not apply to publications – s23(2)
Recommendation:
Board’s discretion should be extended
Legislation should take into account other material such as publications and interactive computer games
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28. Section 24 read with section 15A Business of adult premises
Concern:
Impossible for mobile content providers to comply with provision or apply for licensing
Currently regulations only provide for licensing of businesses operating from physical locations
Recommendation:
Section 24 (1) to be extended to include the licensing of virtual operators such as WASPs operating from virtual premises
A new section 24D be inserted to set out the definitions for virtual adult content; virtual premises and mobile content services
Suggested wording is included in the Operators’ Submission
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29. Section 24 C Internet Access & Service Provider
Concern:
Access via cellular technology e.g.. GPRS or 3G bearer services
ISP’s = internet access providers not content providers
Mobile Operator’s role and function as access provider not content provider
Offenders are unknown until crime is committed – S24c(1)a
Application of S24c(1)(b) - not practical on mobile phones & services
Practicality of age classifications on mobile environment
No ubiquitous filtering software available to filter or block pornographic material
ECTA provisions
Recommendation:
Classification in mobile environment be restricted to “restricted” or “unrestricted”
Obligation to be extended to allow for the implementation of alternative solutions e.g.. device agnostic or network based solutions to block or filter pornographic content
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30. CONCLUSION
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31. Concern: Recommendation: Jurisdiction
Concurrent jurisdiction in terms of different legislation
ECA
Recommendation:
Agreement between different regulatory bodies on issue of concurrent jurisdiction
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32. Operators support co-operative self regulatory framework
Co- operative self regulatory framework be given time to deliver
Operators pledge their unequivocal support to processes aimed at dealing with the issue and:
Operators can only provide the necessary technological tools
Role of parents remains critical and irreplaceable
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33. THANK YOU
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