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Technology and media trends 2018

So far this year we've seen new EU law regulating how we process personal data, how we access our digital media services across one Member State to another, and initiatives, still in their infancy, to tackle 'fake news'. Projected advancement in AI technology, though proving a tall order for us mere humans, is already posing some difficult legal questions, so which trends are carrying us into the future?

August 2018

Online advertising

Online advertising continues to be a hard sell. The latest report by 'Smart Insights' reveals that the odds of a consumer clicking on an online ad is just 0.05%. That's five clicks for every 10,000 ad impressions. This is across all ad formats. Social media ads fare a bit better: Facebook and Google Adwords can muster, and sometimes get just above, a whole percentage point.

February saw Google roll out its new default ad blocker in the Google Chrome browser. Only the most irritating ads are blocked – those which violate the standards set by the 'Coalition for Better Ads'.

Digital advertising boards in LondonThe growth in use of ad blockers has stabilised from a high in 2016, and stands at over 200 million users worldwide in any given month. This still presents a mammoth issue for web publishers, and is driving greater incentive towards other online business models, principally paid, subscription-based models such as those adopted by Netflix, Sky, Spotify and Amazon. Online media subscriptions are expected to grow by 20% this year, and highly popular online games such as Candy Crush and Clash of the Titans have actually increased profits by removing ads from their platforms altogether - encouraging in-app purchasers while enhancing quality of play. The EU Portability Regulation, which came into force in April, makes subscription-based services even more attractive to consumers, allowing them to enjoy their content across all EU Member States regardless of where they signed up to the service.

Fake News

In April the European Commission released its initial proposal to tackle fake news and, in July, published a draft Code of Practice on Disinformation. The Commission had previously set up a consumer website, euvsdisinfo.eu, to help members of the public understand what real news really is, and an anti-propaganda arm StratCom, exclusively purposed to counter the spread of fake news coming from Russia.

It was unfortunate that, in the press release, commissioner Julian King called for a response to ''divisive content'' on the internet, fuelling concerns over censorship which may go beyond shutting down evidently false information. The Commission did go on to define fake news as "verifiably false or misleading information", though just what would entail "misleading" is yet to be clarified.

The Commission's proposals include:

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  • Requiring web publishers to clearly identify paid advertising content.
  • The appointment of an independent European network of 'fact-checkers' to review online content.
  • A better system for identifying and tracing suppliers of information.
  • Initiatives to counter "false narratives about Europe".
  • Enhancing the plurality of news sources available to the public.
  • Under the current draft code, Member States would commit themselves to providing data, including privacy-protected data, to independent researchers for analysis.

Artificial Intelligence

DeepMind (a Google subsidiary engaged in AI development) recently released results of their attempts to train a computer to think abstractly. The outcomes were mixed. The algorithm could apply learned values to new information, but more abstract generalisations were successful only in some contexts and not others – leading the researchers to conclude that our own concept of generalisation has itself got limitations. To put it plainly, we don't fully understand how the brain works, and the concepts we are testing for may themselves be faulty. This is going to present a problem for development of truly human-level intelligence. To achieve the heights of mental power apparent in the human brain (there are more neural connections in your head than stars in the Milky Way; even the fastest supercomputer takes about 40 minutes to process data relative to 1 second of human processing speed) may require the capacity to understand what the human brain actually does, and we certainly can't claim to have mastered that.

The European Commission is already thinking about how AI-led machines might create liability for damages in civil and criminal law suits, and whether the current legal framework is adequate. Should these machines be given the same legal treatment as animals: acting autonomously and not always predictably (something developers are trying to replicate), capable of making their owners or developers vicariously liable, and capable of breaking a chain of causation? Would application of strict liability in some cases be appropriate, given the difficulty of establishing mens rea? The questions seem as boundless and problematic as they are when applied to human beings.

Net neutrality in the US

June saw the repeal of Obama-era law which prohibited internet service providers from treating web content differently - and profiting from it. Under the old law, ISPs couldn't charge content providers for the privilege of faster-loading content. This was designed to create a level playing field (net neutrality) for content providers, something similar to the EU's Open Internet Access Regulation 2016.

Like so many attempts to regulate markets, other prejudices inevitably sprang up as a result of the prohibition. The inability to charge for a better service meant a reduced incentive for developing faster broadband speeds. A report by the Federal Communications Commission in the US last year found that high-speed broadband investment had gone down, albeit only about 6%, and that smaller players were being affected by the cost of complying with (and understanding) the regulations in addition to being cut off from an entire income stream. So the pendulum now shifts back to favouring the ISP's, broadband developers, and those content providers who can afford to get the best service. It is doubtful this change in direction will have any influence on European policy.

Where are we headed?

2018 has seen the US move towards less regulation of online markets (and markets generally), while the EU continues its long march towards closer integration through more regulation. However topical, this year's legal developments will surely be eclipsed by 2019 – the year of Brexit.

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Jocelyn Clarke

Jocelyn looks at the hottest media topics in 2018 so far.

"2018 has seen the US move towards less regulation of online markets (and markets generally), while the EU continues its long march towards closer integration through more regulation."