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Digital media and the law


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Pria Chetty from PWC speaking at DMMA member briefings in August on Digital Media and the Law

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Digital media and the law

  1. 1. Digital Media and the Law Pria Chetty Technology and Innovation Law, PwCDiscoverTechnology &Innovation Law
  2. 2. Dashboard BatsDigital Media RegulatoryTrends and Challenges Wasteland of the Digital Age Content WarsDigital Media Regulation 101 Internet Regulation ConstitutionManaging Trending Legal ECT Act, EC Act, Copyright ActRisks Freemium Model WASPAPwC 2
  3. 3. Internet Regulation Talking Points
  4. 4. On: A Vast Wasteland RevisitedEthan Zuckerman liveblogger:“Television was the dominant medium of the era. The televised Kennedy/Nixondebate had decided the election. But there was little discussion about publicinterest and public responsibility on the part of broadcasters. Minow’scontribution as an FCC chairman was to try to expand choice – licensing theUHF spectrum, early cable TV systems and satellite television. When Kennedyinvited him to visit the space program, Minow observed that satellites weremore important to sending a man into space, because they permitted sendingideas into space, and ideas last longer than people.” Photo of Newt Minow, Source: Berkman Center for Internet and SocietyPwC 4
  5. 5. On: A Vast Wasteland RevisitedMedia Citizen:“technology and players have shifted, the problem of U.S. media remains thesame: A failure to foster the sort of public interest, independent and non-commercial media system to serve as an antidote to the dreck of commercialnews and information that infects Americas political discourse”Benckler:"Because we all now carry sound, video and text generating anddisseminating tools – phones – we’ve got an unprecedented opportunity toclose the gap between what costs a great deal of money and what we all needas citizens."PwC 5
  6. 6. Newspapers charging foronline content – bolsterprintBattle to secure share inpaid content marketBattle to rescue existingindustries throughinnovative contentservices PwC
  7. 7. Digital Technologies: The crisis of traditional media 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 Source: 7
  8. 8. Battle to containusers on sites anddevicesLed toincompatibility offormats andcontent ondevicesSplinternet –Device specificcontentClosed Webbehind ausername andpasswordEach device has ad networks age.html?cid=6a00d8341c50bf53ef0120a814772b970b PwC
  9. 9. Digital Technologies: The crisis of traditionalmedia Digital technologies and technology convergence present formidable challenges to the industry as they erode many traditional revenue bases / business models.PwC 9
  10. 10. Digital Technologies: Opportunities for newmediaConsumers 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.PwC 10
  11. 11. Social Business = Integration andOperationalisation of Social Media for Change Social Media Strategy Collaboration Strategy Social Media (legal) Challenges Social Media Governance Boardroom (or coffee shop) Conversations
  12. 12. Regulation of Digital Media
  13. 13. 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.PwC 13
  14. 14. Application of Traditional Media Regulation 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 • The Copyright Act of 1978 is outdated and does not artistic works address digital realities (“hard copy rules in a soft copy world”) cinematograph films sound recordings • Enforcement is extremely difficult and costly (this is why ever stricter laws will not help) broadcasts programme-carrying signals • Courts appear to give low prioritypublished editions to copyright cases computer programsPwC 14
  15. 15. PwC 15
  16. 16. 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.”PwC 16
  17. 17. 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 AheadPwC 17
  18. 18. Regulation 101
  19. 19. Due Diligence, Due Care PwC 19
  20. 20. The Constitution (1996) Supremacy of Constitution Democratic values of human dignity, equality and freedom Right to Privacy Right of Access to Information Access to Justice Limitations Clause Allows competing and conflicting rights to be balancedPwC 21
  21. 21. Key Legislation Copyright 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 ActPwC (Regulates access to records held by an organisation) 22
  22. 22. 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 Codes The Direct Marketing Association of South Africa Advertising Standards Authority Digital Media & Marketing Association Wireless Application Service Providers AssociationPwC 23
  23. 23. Terms and Conditions of Service Acceptable use of Content Unacceptable use of Content Third party rights Intellectual property Complaints Terms of Linking Agreements Terms of electronic transactionsPwC 24
  24. 24. Privacy Policies Information collected How Information is used Permitted disclosures Retention of personal information Security safeguardsPwC 25
  25. 25. Take Note 12345
  26. 26. DefamationProhibition of Legal claim involving injury to reputation caused by false statements of fact.Defamatory To succeed in a defamation suit, the plaintiff must prove: thatStatements the defendant, (a) published, (b) defamatory matter, (c) referring to the plaintiff unless 1 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.PwC 27
  27. 27. Intellectual PropertySecuring IPR Ensure that intellectual property is sufficiently protected. Intellectual property rights apply particularly to thePrevention of content displayed on the website and the software running the website. In some instances, however,infringement of intellectual property may be owned by third parties. Tothird party IPR avoid intellectual property infringement claims by third parties, content must not be published in violation of 2 someone else’s intellectual property rights.PwC 28
  28. 28. PrivacyDisclosure of Claims of privacy rights being infringed when information given is published and/or distributed without their consent.PersonalInformation 3PwC 29
  29. 29. Social MediaRegulate Claims of unauthorised disclosure of confidential information and trade secrets, intellectual propertydisclosures infringement , loss of privacy, unauthorised publication of photographs, reputational harm, brand damage, loss of competitive advantage, 4PwC 30
  30. 30. Social Business = Integration andOperationalisation of Social Media for Change Social Media Strategy Collaboration Strategy Social Media (legal) Challenges Social Media Governance Boardroom (or coffee shop) Conversations
  31. 31. User Generated ContentGuidelines on Publication of Offensive content such as: pornographicacceptable material, content that exploits children, content that provides instruction or promotes illegal activities, oruse of forums obscene content.andcommentsfacilities 5PwC 32
  32. 32. Thank You...Pria ChettyPwC Associate DirectorTechnology, Innovation Legal AdvisoryOffice: 011 797 5141 |Mobile: 083 384 4543Email: Discover Technology & Innovation Law 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.