During a question-and-answer session at the Legislative Yuan in Taipei on March 10, Democratic Progressive Party Legislator Fan Yun (范雲) asked Premier Su Tseng-chang (蘇貞昌) about the issue of iQiyi, China’s largest over-the-top (OTT) media service provider, which according to Fan circumvented regulations and has been operating in Taiwan without approval for years.
If there is a legal loophole, Su said he would negotiate with government agencies about amending the law.
According to Fan, the National Communications Commission (NCC) has said that it cannot regulate iQiyi’s content because it is responsible for regulating the platform, not its content.
In light of this, NCC Acting Chairman Chen Yaw-shyang (陳耀祥) said that the commission is drafting an Internet audiovisual media service act to regulate OTT providers.
Whether China-based OTT providers should be allowed to operate in Taiwan and how the government should regulate them, regardless of their origin, are different issues.
The government already has regulations for the first issue, as the Act Governing Relations Between the People of the Taiwan Area and the Mainland Area (臺灣地區與大陸地區人民關係條例) imposes restrictions on the activities of businesses in Taiwan that Chinese have invested in.
At a news conference on March 3 last year, Mainland Affairs Council Deputy Minister Chiu Chui-cheng (邱垂正) made a clear statement that OTT providers are not included among the business items that Chinese enterprises are allowed to operate.
In other words, Taiwan already has a legal basis for addressing the question of whether Chinese OTT businesses should be allowed to operate in Taiwan. The real issue is how to properly implement the law to contain China-based OTT providers that are not registered in Taiwan, but operate through a Taiwanese subsidiary or other third party.
How to regulate OTT providers in general is a different issue. Many countries have researched policies over whether and how the government should regulate OTT and similar emerging-media platforms. The EU, for instance, has issued a series of policy white papers on the issue, the majority of which adopt low-intensity control. In Taiwan, the NCC’s Communications Policy white paper takes a similar direction.
Taking into consideration legislation and policies around the world, as well as Taiwan’s special circumstances, OTT regulations here need to focus on a few key aspects:
First, local content and languages must be protected.
Due to concern that foreign content streamed by foreign-based OTT providers, such as YouTube and Netflix, might compress the space for native content in the eurozone, the EU demands that a proportion of OTT catalogs be reserved for European productions in accordance with the latest version of the Audiovisual Media Services Directive, which was revised in 2018.
In addition to ensuring local content is provided by OTT services, the government should also think about how to protect local productions that use the national languages designated in the Development of National Languages Act (國家語言發展法) rather than focusing on one specific language, which would further marginalize minority languages due to the lack of streaming content on new-media platforms.
Second, content diversity and freedom of expression must be protected.
There have been instances of video-streaming platforms axing programs for containing “politically incorrect” elements. In August, 2017, iQiyi unexpectedly stopped broadcasting the miniseries Days We Stared at the Sun II (他們在畢業的前一天爆炸2) after airing the first episode. The Chinese service reportedly axed it because it used the Sunflower movement as the backdrop to the story.
In May 2018, Tzu Chi Culture and Communication Foundation subsidiary Da Ai TV, which also operates its own OTT platform, pulled its historical drama Jiachang’s Heart (智子之心) after broadcasting only the first two episodes. The drama was reportedly canceled because Chinese netizens criticized it for romanticizing the Second Sino-Japanese War from 1937 to 1945.
Terminating programs due to political concerns is a business consideration, but it also severely stifles artistic freedom and freedom of expression. When drafting a special law, the government should consider how to ensure content diversity, protect freedom of speech and artistic freedom to prevent similar incidents.
Third, China’s cultural “united front” strategy and belittling of Taiwan must be prevented.
Compared with other countries, a unique threat facing Taiwan is China’s “united front” strategy and denigration using cultural means.
For instance, when Taiwanese actors and place names are in credits or scripts, they are often marked “Taiwan, China.” It is also not difficult to imagine that footage containing political symbols of the Republic of China, such as the national emblem and anthem, are deleted or silenced due to political considerations.
Similar instances can be found in Chinese cellphones. To prevent mobile devices from showing degrading references to Taiwan, such as “Taiwan, China,” in the caller’s location and warranty areas, the NCC has asked Chinese manufacturers to sign an affidavit in which they pledge to label Taiwan as a nation in the operating systems settings and built-in applications when they apply for product certification. This has had some effect.
The commission should also consider concrete preventive and enforcement measures to deal with regulations for overseas OTT providers to curb China’s cultural “united front” strategy.
The premise for such regulations is that OTT providers have been authorized to operate in Taiwan and are subject to the government’s management. However, OTT providers with illegal operations in Taiwan via an agent is also an important issue.
Feasible approaches include blocking their Internet connections and prohibiting them from renting server space, but these approaches might require legal authorization.
If the policy banning Chinese enterprises from operating or investing in OTT services remains unchanged, the government must urgently discuss the implementation of supplementary legislative measures.
Liao Shiang is a lawyer.
Translated by Chang Ho-ming
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