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Digital Media and the Law
Pria ChettyTechnology and Innovation Law, PwC
www.pwc.com
Discover Technology & Innovation Law
Discover Technology & Innovation Law
PwC 2
Dashboard
Bats
Wasteland of the Digital Age
Content Wars
Internet Regulation
Constitution
ECT Act, EC Act, Copyright Act
Freemium Model
WASPA
Digital Media Regulatory Trends and Challenges
Digital Media Regulation 101
Managing Trending Legal Risks
Internet Regulation Talking Points
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On: A Vast Wasteland Revisited
Ethan Zuckerman liveblogger:
“Television was the dominant medium of the era. The televised Kennedy/Nixon debate had decided the election. But there was little discussion about public interest and public responsibility on the part of broadcasters. Minow’s contribution as an FCC chairman was to try to expand choice – licensing the UHF spectrum, early cable TV systems and satellite television. When Kennedy invited him to visit the space program, Minow observed that satellites were more important to sending a man into space, because they permitted sending ideas into space, and ideas last longer than people.”
Photo of Newt Minow,
Source: Berkman Center for Internet and Society
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On: A Vast Wasteland Revisited
Media Citizen:
“technology and players have shifted, the problem of U.S. media remains the same: A failure to foster the sort of public interest, independent and non-commercial media system to serve as an antidote to the dreck of commercial news and information that infects America's political discourse”
Benckler:
"Because we all now carry sound, video and text generating and disseminating tools – phones – we’ve got an unprecedented opportunity to close the gap between what costs a great deal of money and what we all need as citizens."
PwC
http://chiefmarketer.com/0902-newspaper-paid-content-wars/
Newspapers charging for online content – bolster print
Battle to secure share in paid content market
Battle to rescue existing industries through innovative content services
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Digital Technologies: The crisis of traditional media
Source: http://quickshot.bradmccarty.me/DeclineoftheMediaIndustry.png
Talking Points from the U.S.:
Newspapers: Advertisement revenue dropped by almost 45% ... in just 4 years!
Between 2007 and 2010, 13,500 newspaper journalists lost their jobs
U.S. newsrooms: Full-time staff levels are lower than they have been since the 1970s
Brick and mortar bookstores go out of business & Amazon now sells more
e-books than printed books
Netflix predicts that DVDs will be obsolete in 2030 – substantial decrease in DVD rental stores
Digital technologies have caused a significant drop in CD sales
PwC
http://forrester.typepad.com/groundswell/2010/01/the-splinternet-means-the-end-of-the-webs-golden-age.html?cid=6a00d8341c50bf53ef0120a814772b970b
Battle to contain users on sites and devices
Led to incompatibility of formats and content on devices
Splinternet –
Device specific content
Closed Web behind a username and password
Each device has own ad networks
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Digital Technologies: The crisis of traditional media
Digital technologies and technology convergence present formidable challenges to the industry as they erode many traditional revenue bases / business
models.
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Digital Technologies: Opportunities for new media
Consumers do not disappear even if a particular medium goes into decline – on the contrary, the availability of
digital technology arguably broadens the consumer base.
But consumer behaviour changes and businesses need to respond to this if they want to remain successful.
Social Business = Integration and Operationalisation of Social Media
for Change
Social Media Strategy
Collaboration Strategy
Social Media (legal) Challenges
Social Media Governance
Boardroom (or coffee shop) Conversations
Regulation of Digital Media
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Heightened demand for legal certainty
The challenges brought about by digital technologies, combined with a general
uncertainty of how traditional laws apply in the digital age, have significantly increased
the demand for legal advice in the media and entertainment sector.
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Copyright law awards the copyright owner the right to control the use, distribution and
exploitation of creative works in South Africa for a limited period of time.
literary works musical works artistic works
cinematograph films sound recordings
broadcasts programme-carrying signals
published editions computer programs
Application of Traditional Media Regulation
• The Copyright Act of 1978 is outdated and does not address digital realities (“hard copy rules in a soft copy world”)
• Enforcement is extremely difficult and costly (this is why ever stricter laws will not help)
• Courts appear to give low priority to copyright cases
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Wikipedia:
“Freemium is a business model by which a product or service
[...] is provided free of charge, but a premium is charged for advanced
features [or] functionality.”
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Why Regulate Digital Media?
Regulation Frames the Digital Economy:
Battle for Content
Battle for Content Rights
Battle for Internet (sanctity) and the Web
Battle for Users (attention) (retention)
Battle between Business Models
Battle between Internet Technologies, Internet Technology Corps
Battle to Stay Ahead
Regulation 101
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Due Diligence, Due Care
Constitution
Legislation
Regulation
Self Regulation/
Industry Codes
Policy
Case Law
Contracts
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The Constitution (1996)
Supremacy of ConstitutionDemocratic values of human dignity, equality and freedom
Right to PrivacyRight of Access to Information
Access to Justice
Limitations Clause Allows competing and conflicting rights to be balanced
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Key LegislationCopyright Act
(Regulate and administer rights protection for creators and inventors of copyright materials)
Electronic Communications Act(Regulate and administer converged industries)
Electronic Communications and Transactions Act(Regulate and administer content)
Regulation of Interception of Communications Act(Regulate detection and prosecution of offences in digital world)
Consumer Protection Act(Regulate the digital goods/ services supplier’s relationship with the consumer)
Competition Act (Regulate market competition violations in digital arena)
Films and Publications Act(Regulate acceptable content for public)
Protection of Personal Information Bill(Regulate data protection and privacy in the digital world)
Promotion of Access to Information Act(Regulates access to records held by an organisation)
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Codes of Conduct
Purpose Principles, values, standards, or rules of behavior that guide
the decisions, procedures and systems of an organisation in a way that (a) contributes to the welfare of its key stakeholders,
and (b) respects the rights of all constituents affected by its operations AND that is considered binding on any person who
is a member of that particular group.
Relevant CodesThe Direct Marketing Association of South Africa
Advertising Standards AuthorityDigital Media & Marketing Association
Wireless Application Service Providers Association
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Terms and Conditions of Service
Acceptable use of ContentUnacceptable use of Content
Third party rightsIntellectual property
ComplaintsTerms of Linking Agreements
Terms of electronic transactions
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Privacy Policies
Information collectedHow Information is used
Permitted disclosuresRetention of personal information
Security safeguards
Take Note 12345
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Defamation
Legal claim involving injury to reputation caused by false statements of fact.
To succeed in a defamation suit, the plaintiff must prove: that the defendant, (a) published, (b) defamatory matter, (c) referring to the plaintiff unless
truth in the public interest; the defamatory statement amounted to fair comment on a matter of public interest; or qualified privilege
Remedies include damages, retractions and apologies, interdict prohibiting publication of the defamatory material.
Prohibition of Defamatory Statements
1
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Intellectual Property
Ensure that intellectual property is sufficiently protected. Intellectual property rights apply particularly to the content displayed on the website and the software running the website. In some instances, however, intellectual property may be owned by third parties. To avoid intellectual property infringement claims by third parties, content must not be published in violation of someone else’s intellectual property rights.
Securing IPR
Prevention of infringement of third party IPR
2
PwC 29
Privacy
Claims of privacy rights being infringed when information given is published and/or distributed without their consent.
Disclosure of Personal Information
3
PwC 30
Social Media
Claims of unauthorised disclosure of confidential information and trade secrets, intellectual property infringement , loss of privacy, unauthorised publication of photographs, reputational harm, brand damage, loss of competitive advantage,
Regulate disclosures
4
Social Business = Integration and Operationalisation of Social Media
for Change
Social Media Strategy
Collaboration Strategy
Social Media (legal) Challenges
Social Media Governance
Boardroom (or coffee shop) Conversations
PwC 32
User Generated Content
Publication of Offensive content such as: pornographic material, content that exploits children, content that provides instruction or promotes illegal activities, or obscene content.
Guidelines on acceptable use of forums and comments facilities
5
Thank You...
This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, PricewaterhouseCoopers Inc, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.
© 2012 PricewaterhouseCoopers (“PwC”), a South African firm, PwC is part of the PricewaterhouseCoopers International Limited (“PwCIL”) network that consists of separate and independent legal entities that do not act as agents of PwCIL or any other member firm, nor is PwCIL or the separate firms responsible or liable for the acts or omissions of each other in any way. No portion of this document may be reproduced by any process without the written permission of PwC.
Pria ChettyPwC Associate DirectorTechnology, Innovation Legal AdvisoryOffice: 011 797 5141 | Mobile: 083 384 4543Email: [email protected]
Discover Technology & Innovation Law
Discover Technology & Innovation Law