IIC International Regulators Forum
London October 2013
Speech by Chris Chapman, Chairman, Australian Communications and Media Authority
Let me start with what I think is undeniable: we are living in times of rapid and pervasive change which is erasing previously taken for granted, clear and well understood points of difference: between nations, between nations and companies, and between individuals as consumers and as citizens; and yet we are leaden foot in digesting this change, thinking about the implications and/or scenario planning to test what might be enduring policy responses. National sovereignty is evaporating like the North Sea sea-ice, complicating the proposition of international cooperation. The Westphalian system of the old historical, physical world is being slowly but irreversibly pulled apart.
So, in the context of suggesting what might be a meaningful part of an enduring policy response, I want to look at both the actuality, and the potential of what is currently achievable, in international cooperation in the media and communications space, under three broad headings:
- Promoting the good;
- Working together and cooperating to stem the bad (i.e. stopping harms); and
- Because not all is lost, areas where national sovereignty remains relevant.
Promoting the good
In the first, promoting the good, an excellent example is found in the international spectrum planning framework.
In most countries, including Australia, spectrum planning starts at the international level through participation in the International Telecommunication Union (ITU). The ITU is the leading United Nations agency for information and communications technology issues and is the global focal point for governments and the private sector for the development and regulation of networks and services. ITU radiofrequency spectrum planning outcomes are subsequently incorporated by the ACMA into Australian spectrum arrangements.
The Radiocommunication Sector of the ITU (ITU-R) exists to ensure rational, equitable, efficient and economical use of the radiofrequency spectrum by all radiocommunications services (including those using satellite orbits) and to carry out studies and approve recommendations on radiocommunications matters. The ITU-R also maintains the international Radio Regulations, which set out the allocations of bands to various types of services. There are currently six ITU-R study groups and several working parties under each of these study groups assigned to consider specific technical issues as well as develop and maintain ITU-R recommendations and reports. The ITU-R study groups are:
- Study Group 1 – Spectrum management
- Study Group 3 – Radiowave propagation
- Study Group 4 – Satellite services
- Study Group 5 – Terrestrial services
- Study Group 6 – Broadcasting service
- Study Group 7 – Science services
Australia is a signatory to the ITU Convention, which is a treaty-level legal instrument that obliges Australia to comply with the Radio Regulations. In essence, Australian radiocommunications services must not cause interference to the services of other countries where those services operate in accordance with the Radio Regulations. Conversely, Australian services are entitled to protection against interference from operators in other countries.
In addition to the ITU, there are numerous organisations that seek to achieve regionally-harmonised views on various spectrum planning issues, including those relevant to the ITU-R. Examples of these organisations include:
- the Asia-Pacific Telecommunity (APT), being the Region 3’s ITU’s regional representative body
- the Inter-American Telecommunication Commission (CITEL)
- the European Conference of Postal and Telecommunications Administrations (CEPT).
To realise the economic and social benefits associated with new technologies and services, Australia’s various communications sectors leverage from internationally-agreed spectrum arrangements and standards. So the ACMA’s obligation becomes to align global spectrum management policies and objectives with Australia’s long-term interests and strategies for greater spectrum utilisation and economic approaches for licensing and allocation activities. A greater level of alignment results in lower costs realised through the development of larger economies of scale, which has flow on effects for market competition and consumer prices.
The ACMA also recognises that the current international communications environment is evolving at a rapid rate and facing regulatory pressures from new technologies that utilise spectrum in non-traditional ways. Nowhere is this more evident than in the move to next generation networks (NGN) and converging services characterised by increased demand for access to spectrum to support the deployment of mobile broadband infrastructure. Ever-increasing demand for access to the radiofrequency spectrum requires regulators to encourage more and more efficient means of using the finite resource.
Increasing the ability for users to share access to spectrum is becoming a higher priority for regulators in order to ease competing demands for access to spectrum. At an international level, we note there is a range of work being undertaken that investigates regulatory and technological mechanisms to allow increased access to shared spectrum. Some of this work includes:
- The European Commission’s development of an approach that relies on coordination methods to promote spectrum-sharing between several users and capitalises on the capabilities of new technologies.
- The New Zealand Ministry of Economic Development implementation of a managed spectrum park to encourage a flexible, cooperative, low cost and self-managed approach to the allocation and use of the spectrum for local and regional services. The managed spectrum park is a regulatory mechanism designed to facilitate an equitable approach to achieving shared access to spectrum by users in a defined frequency band.
- The United States evaluation of a test bed for sharing spectrum between government agencies and WiFi services in order to test the effectiveness of, and risks associated with, spectrum-sharing arrangements.
Of particular interest to the ACMA has been has been our involvement in the development of the APT plan for 700 MHz (the APT 700 plan). Australia has taken the opportunity to fully participate with other countries in the Asia-Pacific region (Region 3) in the development, from the ground up, of a new, internationally-harmonised plan optimised for mobile broadband, using the spectrum in the 700 MHZ band freed by broadcasting’s digital switchover.
There has been keen interest throughout the region about the APT 700 plan. Many countries within the region have either committed to the plan, announced adoption of variants of the plan (that will retain much, if not all, of the plan’s harmonisation benefits) or are actively considering adoption of the plan. New Zealand and India have recently formally committed to its adoption, and Brunei, Indonesia, Malaysia and Singapore have jointly announced a commitment to align with the APT 700 plan, adding to an already substantial list that also includes Japan, Korea, Papua New Guinea, Taiwan, Tonga, Afghanistan, Bangladesh, Bhutan, the Maldives, Nepal and Pakistan.
The success of the APT 700 plan in Region 3 is also driving acceptance of the plan in other regions. I note recent reports that the UAE has become the first country in Europe, the Middle East and Africa (i.e. ITU region 1) to adopt the APT 700 frequency plan for its 700 MHz band and the European CEPT plan for the 800 MHz band while Sub-Saharan African countries have announced a replan of their TV broadcasting that will similarly allow them to adopt either APT 700 or EU 800 (or a combination of both).
In Latin America, part of ITU region 2, many countries have either committed or indicated their intention to commit, including Brazil , Chile , Colombia, Costa Rica , Ecuador , Guam , Panama , Venezuela and Mexico despite its long border with the US (which has its own but very different 700 MHz plan and which is also sub-optimal in terms of delivering mobile broadband spectrum). In fact, I am told that the Mexican regulator has said that in Latin America, APT now stands for “All Playing Together”, a wonderful encapsulation of the internationally cooperative approach we are proud to have been associated with since the inception of the APT 700 plan.
While these technical benefits could have been realized even if Australia had ‘gone it alone’ on the APT 700 plan, harmonizing with our Asia Pacific neighbors means we have ensured that phone manufacturers will well cater to the Australian market. One of the key benefits from such spectrum harmonization efforts is economic, and the wider the global spectrum organization around the APT plan, the greater the commensurate economic benefits.
Collectively, the APT 700 plan is now being adopted or seriously considered in markets with a combined population just over 2 billion people and growing. The potential, and increasingly the reality, is that the APT 700 plan will become the foundation of a device ecosystem far greater than that possible with the only available alternative for the band,; namely the sub-optimal US 700 MHz band plan.
Turning then to my second category, and the perhaps more classic regulatory role, of stopping (or at least mitigating) harms. One practical example drawn from the spectrum space is controlling the international supply of illegal mobile repeaters. The ACMA represents Australia internationally concerning such matters at forums such as the Spectrum Regulators Forum and it is clear that co-operation between jurisdictions (and it associated information and intelligence sharing) is emerging as a key strategy for effective compliance and enforcement in the global market, with enforcement efforts at the border complementing enforcement actions within the country, as well as steps to educate sellers and purchasers alike.
The ACMA also has a number of interesting case studies from other spheres of communications and media activity where international cooperation and strategies of cross-border regulatory engagement can yield important benefits – I will sketch details of these below, and for greater detail and a fuller discussion I would refer you to the ACMA Occasional Paper I am releasing today, titled Cross-border regulatory strategies-Case studies in regulatory practice for a networked economy and society.
1. Digital information management
The concept of digital information management requires the treatment of data by network operators, service providers and other rights holders to comply with relevant privacy legislation, consumers’ preferences and community expectations.
National tools that are used to respond to digital information management issues are varied. Tools include models for compliance and enforcement and establishing ways for regulators to cooperate within their country. Work is underway on data protection frameworks in many countries (including Australia and the US). Other countries are examining and revising established privacy frameworks to address new privacy issues, including those arising from new technological developments and business models.
But international frameworks, agreements and other arrangements are an integral part of the regulatory response to cross-border digital information management issues and can influence domestic approaches to data protection issues. There are a number of highly influential international privacy frameworks in place.
Today data protection is the subject of a variety of formal and informal international frameworks. The key international frameworks originate from the OECD, the EU, APEC and the Safe Harbor arrangements between the US, EU and Switzerland. Privacy frameworks around the world are in flux, with many including those of the OECD, APEC and European Commission (EC), under review and revision. Cooperation and collaboration between countries is a strong theme in these frameworks. The large volume of international data flows makes cross-border collaboration essential.
Finally, international frameworks can be influential in the design of the domestic response to digital information management issues. These frameworks can incorporate different approaches. For example, the APEC Privacy Framework gives greater discretion to members on how to implement the framework when compared to the OECD Privacy Principles.
2. Unsolicited communications
Unsolicited communications can be described as a contact that was not sought or requested and has not been consented to previously. Technological innovations in communications has allowed unsolicited communications to expand beyond telemarketing calls, faxes and email spam to use mobile SMS and MMS, instant messaging and social networking services.
I am told the first spam email was sent as far back as 1978! Some reports suggest that spam now comprises around 95 per cent of the world’s email traffic – it is certainly considered the scourge of the internet and mobile networks. Over 183 billion spam messages are sent every day, containing anything from offers of cheap pharmaceuticals to requests for assistance in the transfer of millions of dollars.
Many countries have recognised that without international cooperation, their domestic anti-spam legislation is just won’t cut it. This has led to the broad use of the OECD’s Anti-Spam Toolkit, a package of recommended policies and measures aimed at assisting industry and governments to work together to combat spam. The toolkit provides guidance on regulation, enforcement, industry involvement, technical solutions and education and awareness programs, allowing policy makers, regulators and industry to structure their regulatory frameworks in a consistent way.
Australia has made international spam cooperation a key element in a multi-tiered strategy to combat spam. Australia has proposed a flexible approach to cooperation, in which different countries introduce domestic spam legislation that is reasonably coordinated and commit to respond effectively to information about spammers beyond their borders.
The ACMA is a signatory to a number of multilateral and bilateral agreements with other countries, such as the London Action Plan (LAP) and the Australasian Consumer Fraud Taskforce (ACFT). The LAP’s focus is spam and members include regulators, law enforcement and industry. The LAP assists regulators and other parties in contacts essential for international cooperation and collaboration in the fight against spam. The ACMA is a participant in the International Do Not Call Network, which has members from 15 countries. The network was created to enable international cooperation on enforcement and education activities and to work with industry to find technology solutions to ensure Do-Not-Call regimes retain their functionality.
There are also a variety of memoranda of understanding (MOU) between governments and government agencies, such as the MOU concerning cooperation in the regulation of Spam between the Korea Information Security Agency, the Australian Communications Authority (now the ACMA), and the National Office for the Information Economy of Australia. These agreements and MOUs provide the ability to exchange information and intelligence, as well as encourage close cooperation in minimising spam.
Again the sharing of information and tools with one another is used in responding to spam. For example, the ACMA, Canadian Radio-television and Telecommunications Commission (CRTC) and the US Federal Trade Commission collaborated to share intelligence on scams in which telemarketers masquerade as representatives of Microsoft. This resulted in court orders against the US-based parties alleged to be linked to these scams. The ACMA also shares software for its Spam Intelligence Database (SID) under a free license with the CRTC, the Onafhankelijke Post en Telecommunicatie Autoriteit (Netherlands) and the Department of Internal Affairs (New Zealand). I am hopeful that there will be further SID licensing – so there’s my invitation to you.
These, then, are some of the tools used to respond to cross-border unsolicited communications challenges and, collectively used, are an example of an effective multi-faceted cross-border regulatory approach. So we discern a growing patchwork of international, national, and industry-driven measures being used in concert to reduce the level of unsolicited communications experienced by citizens.
3. Online child sexual abuse material
The digitisation of content enables the trafficking of child sexual abuse material online across electronic communications networks. Protecting citizens from the production and distribution of child sexual abuse material requires international cooperation across sectors.
International conventions provide a framework for addressing online child sexual abuse material globally. Signatories are required or encouraged to implement arrangements domestically. Key international covenants are the Convention on the Rights of the Child and its Optional Protocol, the Council of Europe Convention on Cybercrime, and the Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse. The EC has coordinated and supported various efforts to combat illegal content through a Safer Internet Programme. The programme co-funds a variety of educational and research projects as well as initiatives to set-up illegal content reporting hotlines.
International organisations are another important tool for facilitating co-operation across borders in relation to the issue of child sexual abuse material. Collaboration across jurisdictions and with industry (such as ISPs providing police with IP addresses) is critical in supporting the role of law enforcement. There are several international organisations that specifically facilitate law enforcement collaboration, including:
- Virtual Global Taskforce—an international alliance of law enforcement agencies. It aims to build an effective international partnership of law enforcement agencies to protect children from online child abuse.
- INTERPOL—A central global point of contact for police, INTERPOL enables investigations at the local, national and international levels and coordinates large-scale investigations involving multiple member countries.
- INHOPE—Coordinates a network of internet hotlines across the world and supports those hotlines in responding to reports of online child abuse. INHOPE places a strong emphasis on collaboration, requiring members to have working relationships with relevant law enforcement, education and industry bodies.
- Global Cyber Security Agenda Child Online Protection Initiative (COP)—The COP brings together a broad spectrum of governmental and inter-governmental agencies, law enforcement agencies, industry and civil society representatives to form a collaborative network that shares knowledge and experience and, again, develop tools to protect children online.
Complex cross-border regulatory problems are increasingly requiring collaboration between different industries and sectoral regulators to produce an effective response. Child sexual abuse material is an example of the involvement of other sectors, such as communications and finance, to assist law enforcement.
There are several international conventions providing a framework to address child sexual abuse material, as well as several law enforcement organisations that facilitate collaboration with law enforcement agencies. For example, the ACMA is an active participant in INHOPE.
To state the obvious, in this area, a key feature of any cross-border regulatory approach is some form of international cooperation. In all cases, the regulatory strategies adopted for utilisation within traditional sovereignty have incorporated international cooperation, recognising the limits of unilateral action and the effectiveness of mutual understanding and cooperation.
Areas where national sovereignty remains relevant
Any cross-border approach obviously requires co-operation and collaboration between regulators in different countries, spanning therefore different jurisdictional protocols, social and cultural environments, political expectations, and levels of capacity, technical expertise and resources.
Ensuring effective cross-border regulatory approaches necessarily involves finding constructs and tools to encourage commonalities across borders and incorporate the inevitable differences between countries, which segues to my final category - areas where national sovereignty remains, to varying degrees, relevant.
Examples include ownership and control of media entities within a national jurisdiction, classification (and indeed the prohibition) of certain content and mechanisms to provide and protect the production of content (either local to the jurisdiction or to other discrete geographic areas within it).
These and similar areas of interest for possible regulatory oversight are likely to remain of abiding interest for national governments, and the source of possible friction as globalised technology and market forces butt up against these areas.
The most sobering reminder of this was in December last year, when the ITU held the World Conference on International Telecommunications (WCIT) in Dubai. In theory, this conference was about revising an arcane international agreement on technical and accounting matters related to international telecommunications issues.
Yet the conference attracted headlines in the Wall Street Journal such as “The U.N.'s Internet Power Grab”, and “The fight to keep a state-free internet” in the Financial Times.
“Are you serious?!” you might ask.
This happened because the treaty document under discussion was last visited way back in 1988 – way back last century, and in Internet years, that might as well have been the one before. In 1988, telecommunications services were almost completely voice-centric, supplied in most countries by a monopoly provider, and in most cases that monopoly provider was owned by the national government. Mobile services were in their infancy and the internet did not exist except as a research network.
The issues at stake in the 2013 conference illustrated some strong North-South divisions. In many developing countries, the telcos are often still state owned and so questions of pricing, including pricing of data were of major concern to those countries, but far less relevant to more developed economies. In addition, the conference focussed ultimately on a range of questions about governance of the internet and the global and national regulation of internet providers, services and content. Fundamentally different perspectives on the role of government and the ITU in relation to the internet were brought to the table by various national players and regional blocs. The debates in Dubai were between sovereign countries and, as a precursor of the future, essentially the framework for communications’ governance itself was up for consideration. Non-government players were also represented in Dubai, but in some respects this simply added to the tension.
Certainly there were outcomes in new treaty text agreed by many countries at the Conference that contain a number of important improvements on the 1988 regulations, including:
- Specifying a pathway for countries to move from traditional accounting rate arrangements for international telecommunications traffic to commercial arrangements;
- Promoting the delivery of information to roaming mobile users about the prices of roaming services; and
- Encouraging the transmission of CLI across borders.
However, sharp divisions remained at the end of the Conference, in relation to spam, wider security issues, preserving an active role for the ITU in internet technical, development and public policy issues, and the inclusion of a reference to the upholding of human rights obligations in the implementation of the Regulations. No country worked harder than Australia to achieve a final agreed text and, ironically, many parts of the text were drafted or amended by the Australian delegation.
But ultimately, it was votes about internet governance, as well as debate over the final issue of human rights that led to the breakdown of consensus, with African and Arab Group countries and Russia pushing for a complement to the human rights reference in the form of a “human right” of countries to have access to international telecommunications services.
Left hanging at the end was the further issue of the future role of the ITU. The Australian position taken into the Conference was that any matters related to internet, other than the basic underlying transport infrastructure for internet services, and the ITU’s existing capacity building for developing countries, should not come under the purview of the ITU or form part of an inter-governmental treaty.
This is because the current “multi-stakeholder” model under which the internet is managed—comprising private sector, civil society and public sector—is regarded by Australia as a major source of the success of the internet and the preferred model for the future. Changing to a government-led model would, it is feared, lead to stifling of innovation and even, in some cases, to an actual restriction of services.
In 1988, the ITU played a critical role in the provision of international telecommunications services by specifying standards for interconnection and operation of services, and defining the accounting rules for telecommunications traffic carried between countries. Today, there are numerous bodies that develop standards for telecommunications services, with the main standards in use for IP-based services being developed entirely outside the ITU. The traditional accounting arrangements have been replaced by commercial agreements for most international telecommunications traffic. And internet governance arrangements are not only independent of the ITU, but to a large extent also independent of national governments.
So a key challenge for all players (and as incredible as this might seem, for governments themselves) is to work to actually remain relevant in the multi-stakeholder environment; rather than assume policy leverage and international influence will persist from ones’ traditional or legacy roles. This has been a central theme of the transformational agenda I have pursued at the ACMA: building the agility, adaptive resilience and communications and influencing skills necessary to operate effectively in our environment of constant change, increasingly-connected citizens, and ultimately what will evolve as the networked society.
I was recently heartened to discover that Dr Francis Gurry, Director General of the World Intellectual Property Organization (WIPO) (and who is, I note a fellow Australian, in fact the highest-ranking Australian official in a United Nations agency) adopts a similar perspective. In a September 2012 interview, reported in the WIPO magazine in an article entitled “Maintaining relevance in a changing world”, he said:
“The overarching objective in a rapidly changing world, characterized by major shifts in the use of technology, is to maintain the relevance of WIPO as the global forum for IP issues.” 
Dr Gurry recently delivered a lecture  “Re-thinking the role of IP” in Australia which persuasively explored the major economic, social, and political developments affecting intellectual property. He made some acute and resonant observations more generally applicable to policy-making in the new environment that we all share. He posits, probably correctly, that the challenge before (all) policy-makers is to produce answers as quickly as the speed of technological change is producing questions.
There are very active policy agendas all over the world at all levels – national, bilateral, plurilateral, regional and multilateral. How (he asks) do these all fit together?
He suggests that there are three categories of risk arising from the complexity of managing policy processes occurring at multiple levels and involving so many diverse interests:
“The first is the maintenance of policy coherence in so many intersecting processes. Ideally, one level should fit into another like Russian dolls (with, presumably, the multilateral level being the biggest doll, not because it is the most important, but because all others should conform to it). What happens in practice is that there are, at any given moment, multiple processes taking place at multiple levels.
The second risk is the risk of non-delivery, with the consequences that policy is made by default by the private sector’s actions and that the courts are called upon to make decisions that the legislature has not been able to make.
The final risk is that the capacity of the policy response is not equal to the size of the problem. We are seeing this happen in multilateral affairs more generally. The capacity of the international community to reach agreement is limited, while the problems and challenges that confront the world are growing in dimension on a daily basis, with most of them, such as those arising out of the movement of persons, goods, arms, germs, pollution or cultural content, requiring international cooperation to provide an adequate policy response.”
I suggest we could all do well to contemplate, and certainly not to underestimate, the challenge of and the obstacles to, building and maintaining a coherent response to developments in communications and media.
In this regard I was also interested to read the recent views of Internet veteran, Vinton G. Cerf, and several of his colleagues. In a piece for the Journal of Law and Policy for the Information Society entitled “Internet Governance is Our Shared Responsibility” , they looked at the different roles that multi-stakeholder institutions play in the Internet governance ecosystem.
They also use the example of the negotiations in Dubai in 2012 at the World Conference on International Telecommunications as an illustration for why it is important for different institutions within the governance system to focus on their respective areas of expertise (e.g., the ITU, ICANN, and IGF).
A key focus of their suggested approach is accommodating areas of conflict ("tussles" as they term them), such as the desire to promote more broadband infrastructure, a topic that is in the remit of the International Telecommunications Union, but also the instinct of various governments to use the ITU to regulate content through cyber-security and spam provisions. One doesn’t need to endorse their specific proposals to acknowledge the force of their analysis that:
“As the globe looks toward governance systems for the Internet in the next phase, we should avoid the temptation to enshrine arcane rules in international treaties.”
They talk about an approach that will facilitate the governance of this immensely complex space in a section of their paper ‘Aligning Theory and Practice’. They speak in terms of levels, firstly of “enhanced communication”, then of “enhanced coordination” and finally of “enhanced collaboration”.
In discussing their belief in the need for a solid shared understanding of best practices for enhanced cooperation, I feel they are soliciting at the international level the kind of thinking we at the ACMA have actually embedded over the last few years, as a conscious, deliberate strategic decision by me, in our corporate mantra, which is to: ‘communicate, facilitate, and then (if all else fails) regulate’. We shared this view more formally in our recent occasional paper Connected Citizens – Regulatory strategies for a networked economy and society, which presents an exploration of how a viable coherent national regulatory framework might be developed. This work has confirmed my original intuitive view back in 2006 that fragmented and piecemeal institutional responses to the contemporary pressures of convergence and network effects are essentially misguided.
My overriding proposition has been and remains that: what is, and will be needed, is regulation that is ‘fit for purpose’, intervention that is enough to do the job in a specific circumstance, and no more, invoking from time to time regulatory discretion and the exercise of forbearance. This means regulation that is evidence-informed and that engages all stakeholders: industry, consumers, citizens, legislators, and ourselves as regulators.
In that mantra, we affirm our intent to be flexible and rapidly adaptive to changing industry circumstances and, as a national regulator, we approach the task of ‘enhancing collaboration’ with a specific set of rights, duties and powers ultimately conferred by the state. But these do not carry all before them nationally, let alone internationally.
Optimal conditions for international co-operation
Increasingly, the cross border nature of online activity in particular requires that regulatory constructs and tools in place at the national level be linked to multi-level, international regulatory strategies. The reality is that we need to address market-based, cultural and jurisdictional challenges in an environment of the global deployment of IP networks, the digitisation of content and communications and increasing involvement of participating citizens who expect to exercise greater control over aspects of their communications, and their media consumption … both of which will themselves be increasingly ‘tailored’ and fit for purpose i.e. personalised.
So we might then turn our mind to the optimal conditions to make international cooperation, as described in the title of this session, ‘achievable’.
The ACMA has reflected on a set of common factors that assist in identifying when international cooperative approaches may be useful. This analysis is drawn from the ACMA’s practical experience and analysis of arrangements in the communications, media and ICT sectors, with a particular focus on global online activities, such as detailed in the case studies I referred to earlier.
None of this is rocket science, but it useful to reflect on the underpinning environmental conditions and prevailing incentives that supported a successful cross-border initiative or action. I am offering these observations as an initial insight for a broader conversation about the circumstances and issues that benefit from regulators adopting co-operative international strategies.
The analysis of optimal conditions can be grouped into two main categories;
- Environmental conditions – i.e. those that primarily relate to the market-based, cultural or jurisdictional circumstances; and
- Common design features– i.e. those that are concerned with the operation of international cooperative arrangements.
And I will offer these 6 environmental conditions as some early thoughts to guide this discussion:
1. A common issue or problem traversing national boundaries and jurisdictions
Implicit is an acknowledgement that unilateral action will not be sufficient and indeed may have limited effectiveness in an environment of global supply chains and international transactional relationships.
2. A problem or issue is capable of definition and location
The issue or problem must be capable of clear definition to support practical action being taken. In an environment of global and ephemeral information flows and transactions, associating activities with an individual or a physical location can be difficult. So successful cooperative action requires the identification of relevant individuals, industry participants and other agencies that exercise some controls within a supply chain in order for action to be taken to either minimise harms or promote beneficial activities. This often requires different skills of analysis by the regulator, strong linkages with industry participants and law enforcement agencies to enable discreet action to be taken.
3. Shared understanding of the benefits and harms
While there are inevitable social and cultural differences between countries, effective cross border action is underpinned by a shared view of the benefits of promoting particular activities such as the free flow of information, as well as of the particular harms that require action to protect citizens such as fraud, scams and the protection of life, health and safety.
4. Recognition of the rights and responsibilities of the digital citizen
International practice suggests that, while the rights and responsibilities of the digital citizen is an emerging concept, recognising the role and involvement of participating citizens, as they increasingly engage with aspects of their communications and their media consumption in the online environment, is an important facet in building an effective toolkit of regulatory and non-regulatory solutions. In some areas of online activity, such as rights to be protected from intrusion and fraudulent activity, this is relatively well established. But in other areas of online experience, for example, developing concepts of personal information and privacy, digital citizen rights and responsibilities are more a work in progress.
5. A common industry interest
Another key environmental consideration is a collective will or genuine industry incentive to address a particular problem or enhance specific provisions that support business certainty and confidence. Where industry participants have a longer term view of benefits that will be achieved through cooperative planned action, there is more likely to be a successful outcome. Examples where this approach works is in the international harmonisation of spectrum band plans that are underpinned by the shared industry vision of future spectrum demand or ‘supply’, technology deployments and sheer ROI.
6. Clearly defined objectives supported by government, legislation or regulation
Often a national legislative framework or government directive provides clear guidance about the public interest objectives that are to be achieved in the regulatory environment. This often provides the basis for initiating international action and guides and informs where and when a regulator may become involved in an issue. But it does not follow that this involvement always leads to the exercise of formal regulatory powers. It may require a regulator to operate in a more facilitative role to spur other industry participants or individual citizens to action.
These environmental factors lead to a consideration of 4 possible ‘common design’ features that in our view are likely to distinguish the operation of workable international co-operation. These are:
A common design aspect in cross-border regulatory approaches is to use an international framework to influence and guide domestic regulatory responses. Even with common regulatory designs, there will inevitably be differences between national legislative arrangements that can complicate cross-border regulatory responses. In these cases, proactive international engagement is an important tool to promote cooperation, bank small iterative wins and generally encourage productive outcomes.
Global engagement has become a necessary strategic tool to identify emerging regulatory issues and to coordinate regulatory responses for electronic and internet-enabled communications. Sharing knowledge and experience with other regulators, law enforcement and industry groups are necessary to build cooperative mechanisms and identify best practice approaches.
- Reliance on a mix of participants
Complex supply chains, the convergence and integration of previously distinct industries, together with the increasing ability of citizens to participate using internet-enabled communications, mean that a successful regulatory strategy is likely to extend beyond the domestic regulator alone. In a global digital economy, co-operation is required between many participants, such as national governments and their agencies (such as regulators and law enforcement bodies), industry associations, commercial enterprises, NGOs, charities and, increasingly, individual citizens themselves, internationally as well as domestically.
- The use of broad-ranging tools
In cross-border regulatory approaches, a range of tools are used to complement national legislation. For example, Australia’s approach to unsolicited communications is one example that relies on a range of interrelated tools—employing legislation, education programs for citizens and industry, and technology. These tools, when used in concert, can be a powerful agent to deliver an outcome
Any successful or workable cross-border approach will bridge the differences between the various jurisdictions, social and cultural environments, political expectations, and technical approaches. Perhaps we can discuss how to nurture such optimal conditions and best achieve practical international cooperation which promotes the good, stems the bad and respect national sovereignty where relevant in the media and communications space by finding ways of managing the diversity and different approaches to the governance of this ‘immensely complex’, internationally-shared space. Perhaps as important as managing how we agree (for example, in treaty negotiation) is managing how we can agree to disagree and still maintain a dynamic of co-operation and innovation.
To misquote the ACMA’s own tag-line, “Communicate, Contend, and (if all else fails) Agree!”