GUIDELINES FOR CREATIVE REGULATION IN THE DIGITAL AGE

The wave of digital technology has brought with it myriad new inventions and disrupted many businesses. Consequently, regulations must be adjusted to reflect the many uses of new digital tools and to suit the changing environment.

One example is the new breed of OTT (Over-The-Top) providers, which refers to applications or services available over the internet and not based on systems such as telephone networks or terrestrial, cable or satellite broadcasting.

OTT also includes communication and broadcasting services that can be operated on both wired and wireless internet networks. These are essential to the emerging “application economy”, which will also be a major factor in the Thailand 4.0 economic transformation.

But there is no denying that many communication services and digital content offerings based on OTT platforms are causing significant digital disruption to incumbent providers.

For example, messaging tools such as Line, Facebook/Messenger, WhatsApp and Skype have had a big impact on telephone operators by providing equal or higher quality services at lower prices. Similarly, operators of Line TV/ Line, Facebook Live/Facebook or YouTube are causing headaches for television operators on digital and analogue networks.

Apart from being part of the OTT universe, Facebook or YouTube are also considered leaders in social and new media, with formidable data distribution infrastructure.

This broadens the opportunity for consumers to access new media as viewers, distributors and content developers. In the meantime, it generates a larger number of “message senders” than “mass communicators”.

However, message senders sometimes distribute data without analysing the social consequences of their content. As well, not all senders — or recipients — apply sufficient critical consideration to the validity or veracity of the data circulating online. This has given rise to the phenomenon of “fake news”. There is often a lack of professional standards to help people consider whether something should be sent out or not.

In many countries, media organisations such as Facebook or YouTube have been taken to task for failing to control the distribution of data that could contribute to hate speech, fake news, or worse. Live-streaming of horrific crimes is just one example of such shortcomings.

While data of dubious quality can be distributed directly through these platforms, it can also end up on the Facebook pages, social media accounts or websites of famous people and reputable organisations. It is important, therefore, for the government to play a role in regulation in order to reduce conflicts and social confusion.

This can be seen in Germany where Facebook faced punishment after it failed to provide a mechanism to remove content containing false information including hate speech.

While OTT communications and digital content are now so popular that all operators of these services are considered OTT providers, regulating OTT needs to be based on different reasons than those applied to social or new media regulation. Before taking action to regulate any of them, it is important to classify OTT services and propose appropriate regulatory measures as well as evaluate the effects on all stakeholders.

In some respects, OTT services can provide people with more opportunities and access to information and services. It can be a way for marginalised people to communicate and have their concerns heard, or a way for small businesses to maximise their competitive potential in the way that the old infrastructure could not accommodate. The government and regulators should be responsible for promoting the widespread and appropriate use of such services.

But some types of OTT can have negative effects. This is because the operators provide services in the same way as incumbents that use more established platforms, but below regulatory standards. They also do not bear any of the regulatory burden of incumbents, resulting in an unfair cost advantage.

As a consequence, regulation is needed to bring about fairness and equality, which can be achieved by reducing regulatory costs for incumbent operators or by treating OTT operators equally to the same standard. Ultimately, however, the regulation has to focus on the advantages and disadvantages to the public.

Regulation must not obstruct the opportunity to apply new technology developed to enhance our living standards. In addition, such regulation may need to rely on cooperation between government entities and other regulators.

This calls for innovations in control mechanisms that are in line with changing contexts. For example, income tax-related issues have to be executed in cooperation with the Revenue Department, and cooperation among various units of the Commerce Ministry is needed to facilitate business operations in order to attract investment.

Apart from seeking cooperation within the country, strengthening cooperation with foreign regulators is important since the internet knows no borders. The way we formulate common-core regulatory guidelines with other countries will give us the bargaining power to confront major world-class OTT players.

In summary, it is important for OTT regulation to focus on consideration of the changing context, the benefits of emerging technology for the majority of people, with greater importance given to service operation than technological control.

As well, consideration must be given to regulating high-risk services that may have negative effects on society, while evaluating the potential effects in every dimension before imposing such measures. This will involve seeking cooperation from various sectors in the country and being aware of congruence with regulatory regimes abroad.

On top of that, it will be necessary for regulators to modernise their approach in the interest of developing practical guidelines and creating regulatory innovations in line with changes in our dynamic world.