The trend towards digitisation continues apace, with COVID-induced lockdowns having forced almost every business to consider their online presence, and technological advances making new forms of content and delivery possible.
In the past few years, the impact of Brexit, and specific initiatives like the DSM Copyright Directive, have occupied those who create and exploit content. Here we consider some of the big legal and regulatory issues that will impact content in the coming year, and what content providers and hosts should be doing in response.
The regulation of harmful user-generated content (UGC) is something with which many countries are trying to grapple. The main strategy adopted so far has been to impose greater obligations on those who host harmful UGC to ensure the safety of their users. In the UK this comes in the form of the draft Online Safety Bill, while the EU has proposed a new Digital Services Act.
The Online Safety Bill is expected to come into force in the UK in 2022 or 2023. The Bill has a broad remit and will catch a range of online operators, not just the large platforms (find out more here and here). Operators will need to consider whether they are caught by the legislation and regarding what content. Those that are will need to start preparing – including reviewing their policies, processes, terms and conditions and complaints procedures – and determining how to carry out risk assessments. They will not only need to get up to speed on their obligations under the new law, but also relevant underlying offences and law on freedom of expression, to be able to fulfil their obligations.
Alongside the Online Safety Bill, the UK is also considering amending/supplementing some of the communications and hate crime offences.
The use of AI by businesses will continue to accelerate. AI will become increasingly regulated and scrutinised, as various 2021 proposals and initiatives progress. In the UK, the government finally set out its AI strategy in September this year. That will be followed in 2022 by a White Paper on governing and regulating AI, as well as a pilot AI standards hub (to engage in global standardisation) and the development of an AI technical standards engagement toolkit for stakeholders. Meanwhile, the EU is ahead of the game, having already published its proposed Regulations on AI rules (find out more here and here).
The intellectual property (IP) issues raised by AI will also need to be addressed. AI is already creating content – whether new artworks or music – in ways that make it impossible to identify the human intellectual input in the final product. That raises issues about who owns the IP in such content. The UK IP Office is currently consulting on these issues. Stakeholders will need to engage to ensure their interests are protected. Meanwhile, we are likely to see an increasing number of disputes around ownership and infringement of IP in AI-created works.
Marketing and PR content will be under increased scrutiny in 2022. This is reflected by the number of reports, consultations and reviews by UK regulators. Key areas for regulation include 'greenwashing', HFSS restrictions, racial and ethnic stereotyping, body image concerns, influencer disclosures, advertising on video-sharing platforms, and harm and protected characteristics.
A particular area of focus – reflecting wider concerns and government targets about the environment and climate change – is 'greenwashing'. This is marketing spin used to deceptively persuade the public that a business's products or policies are greener than they are. The CMA recently issued guidance to help businesses avoid breaching the legislation and the ASA is doing the same and more.
Large businesses like Shell have already fallen foul of the rules. Businesses which make green claims will need to make sure that they are clear, supported by a high level of evidence (including technical evidence where applicable) and reflect the impact of the product across its whole lifecycle unless suitably qualified. They will need to bear in mind that the public at large and environmental groups, in particular, are watching – and will make complaints.
On a related note, we can also expect there to be even more scrutiny of companies' ESG policies and behaviour in 2022, including their environmental impact, tax structures, use of government money, treatment of employees and data security (find out more about managing reputational risk here). This will lead to more journalistic investigations and litigation and a greater need for businesses to focus on these issues.
In the coming year we can expect to see new ways for individuals and creators to monetise their online presence, including paid subscriptions to creator content, merchandise stores, the selling of data, and closer links between advertisers and creators. These opportunities will only grow as major technological advances – like the metaverse and AR/VR – pave the way for content to be delivered and monetised in new ways.
All of this will raise new legal and regulatory issues. Take the recent trend for non-fungible tokens (NFTs) – a new form of collectable made possible by blockchain technology. Sellers of NFTs need to be clear what they are selling and that they have the rights to sell those things. Selling an NFT is not the same as selling the underlying asset and most NFTs do not involve the transfer of IP rights in the underlying asset. Indeed, transferring these rights by NFT might not even be possible given the signature and other requirements for IP transfers.
The metaverse and AR/VR raise equally challenging questions (eg can there be design infringement if there is no actual "product"?). Stakeholders will need to tread carefully, and disputes seem likely.
A bigger, more complex online world will be harder to navigate and police. Content providers will need to make sure they have their IP rights in place and will need to prioritise their budgets to tackle online abuses.
The UK government has said that it plans to bring forward a Broadcasting White Paper towards the end of 2021 which will consider the future of the UK's broadcasting landscape. With this in mind, the UK government recently consulted on whether the rules around audience protection measures for TV-like VoD programme content should be aligned with those for traditional TV content and whether non-UK-based VoD services that target UK audiences should be regulated by Ofcom. The outcome of that consultation is expected shortly.
The government has also reiterated its commitment to measures to level the playing field so that UK public service broadcasters can compete with international rivals. The latter will have particular impact for smart device manufacturers which currently determine which providers have prominence.
The DCMS Committee's inquiry into the economics of music streaming was one of the most important events of 2021 for music and adjacent media industries and it could drive some of the most significant legal and market changes to affect creative industries in recent years (as we discuss in more detail here).
To discuss these predictions in more detail, please reach out to a member of our Technology, Media & Communications team.
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