The construction of the national broadband network and the proliferation of content online will fundamentally change the media landscape and the practice for lawyers working in the area, reports Sarah Sharples

While the global financial crisis has hit the media industry hard, with advertising revenue plummeting, rapid developments in technology and content delivery means organisations are also grappling with changing legalities. Traditional rules and ways of thinking are being increasingly challenged by the rate at which online content can be produced and the social networking phenomenon.

National broadband network

In April, Prime Minister Kevin Rudd announced the "largest infrastructure decision in Australia's history" with a national fibre-to-the-home broadband network. At a cost of $43 billion, the project will take up to eight years to be rolled out to 90 per cent of Australians. Rudd said that the network, which would provide speeds of up to 100 megabits per second, would be up to "100 times faster than what people use now".

While the national broadband network (NBN) is in its early stages, Kate Jordan, a corporate partner with a media specialty at Clayton Utz, says the project is the "biggest game in town" and has already driven a lot of interest from clients.

"The national broadband network is going to fundamentally reshape the media landscape and that is going to drive a requirement for an overhaul of media regulation and a number of the current rules that apply, like ... for free-to-air television [there is] a restriction on their audience reach at the moment," she says.

"Rules like that are going to have to fundamentally change with an NBN, because of its national nature and the ability for people to be distributing content on a national basis. The extent of the changes is a bit of unknown at this stage, but certainly things like ... a restriction that a commercial television broadcaster can't have an audience reach of more than 75 per cent of the Australian population - that sort of rule is going to have to change - it becomes irrelevant."

Partner Patrick Fair, who is a part of Baker & McKenzie's NBN working group, says it has been a busy time responding to a call from the government for legal services to advise on implementation of the project and helping clients with proposals for the "black spots tender". The $250 million tender is for optic fibre links to be built in places around

Australia where there is limited connectivity, such as Broken Hill, Geraldton and Darwin. Fair also predicts a major overhaul of the regulation of the media.

"I think there are some concerns being expressed that in an NBN environment the issues around copyright infringement will be, in the order of magnitude, more serious. The copyright community considers it pretty serious at the moment, but with all forms of video media going through a computer, essentially the ability for users to make and hold copies [and] to possibly unlawfully redistribute them will be significantly greater than it is today," he says.

Mary Still, a partner at Clayton Utz, agrees that legislation such as the Broadcasting Services Act 1992 - which does not currently recognise that what appears on the internet is a broadcast - and the Copyright Act 1968 need to play catch up with technology.

"I think it will probably be likely that there will be a complete revamp of the Copyright Act at some stage within the next few years and, obviously, it will have to be a government initiative," she says.

"I think really the act needs to be in front of the technology and its compass has to be in sufficiently broad language to be relevant to technologies which are yet to be developed, but will probably come off the back of the national broadband network and the facilities that it can deliver."

The lawyers that spoke to Lawyers Weekly all agreed that the way that television-style services can be delivered through the speed of the broadband connection - in what is described as IPTV - will also drive change because that area is currently unregulated.

Online content

Khai Dang, a partner at Blake Dawson who works on the content and regulatory side of telecommunications and broadcasting, says media organisations are still struggling to find business models on the internet that make money out of content.

"So while there are some wildly successful companies out there - such as Google who actually reported a profit in the last quarter - there are many organisations who are still posting content for free, basically, or generally at some sort of a loss and the struggle for them is how to recoup the cost of that and create a new business model for online content," he says.

"They have to compete with content that people post through social networking sites - such as the 'Kevin and Jill's wedding video' that is now rating through the internet at this moment and that's a home­made video of someone's wedding - and ... it's attracting eyeballs away from the news from the Sydney Morning Herald or another Fairfax site. So [the question is] how do they cope with that sort of content that is posted by individuals who aren't in it for money?"

Meanwhile, the privacy of online content and whether a cause of action for privacy exists in Australia - and in what circumstances - is uncertain, says Sophie Dawson, a partner who specialises in contempt and defamation litigation at Blake Dawson.

"That [issue] affects two categories of people: firstly, the traditional media, and secondly, all of us with our Facebook sites. We're putting up photos of friends and doing other things which potentially contain their private information. There is mixed case law about whether there is a cause of action for breach of privacy in Australia - it could be a common law or an equitable cause of action and the [Australian Law Reform Commission] has recommended that there be a statutory cause of action," she says.

Cross-media ownership laws

The relevance of cross-media ownership laws becomes less important when multiple news sources are accessible via the internet, says Baker & McKenzie's Fair, adding that this

argument will be accelerated by the NBN.

"People will be able to choose, as you can do on the internet now, radio stations from all around the world and even TV stations from other countries [but] with a high-speed connection the quality of those services will increase and you might expect their use to increase - so it's certainly going to put a lot of pressure on the existing framework," he says.

"Because it might be that it doesn't really matter so much who owns the local radio station or the local newspaper or the local TV station, because people will be choosing what they watch in the evenings by going onto their high-speed broadband and making a selection from a much broader range."

As reported in The Australian, Professor Michael Fraser, director of the Communications Law Centre, says that government faces a tough balancing act retaining local media diversity while ensuring that media companies stay large enough to survive as broadband globalises the industry.

But Blake Dawson's Dawson argues that our media laws are actually hindering diversity because they are tougher than those of a lot of other countries, particularly the US.

"This is very important when you have big online companies that have discretion as to where they put their asset. Obviously we, Australia, want them to put their assets here and give us all wonderful jobs - but if you look at it, if someone was in two minds about whether to go to the US or here, the law might tip the balance in favour of the US in some cases, which is really unfortunate for us as a country," she says.

"Because not only does the US have more media-friendly privacy and defamation laws ... but also its courts, because of the First Amendment, won't generally enforce foreign defamation judgments. Whereas here we have the double whammy: we've got tougher laws plus our courts will enforce foreign judgements in most cases, so it is something that comes into play when you're looking at making sure we are able to compete as best we can in that area."