TECHNOLOGY, TELECOMMUNICATIONS & MEDIA LAW OUTLOOK & PROSPECTIVES 2011: INTRODUCTION Cyprus became part of the European Union on 1 May 2004. Recently, the European Union has gradually legislated comprehensively to cover the area of electronic communications. The ‘telecommunications package’ that the European Union has implemented has been designed to facilitate fair competition in the electronic communications sector and consists of various legal instruments that have a direct effect in EU Member States. The EU legal framework is not limited to telecommunications networks and services but also extends to cover electronic communications networks and services. However, it is worth noting that the European Union is currently considering reforms that will inevitably affect the electronic communications sector and Member States that implement such regulations and laws. In 2002 and 2003, Cyprus carried out all of the necessary changes and followed the initiatives conceived during various public consultations and hearings that took place around this time in order to bring the national laws of the Republic of Cyprus and policies into line with the European laws, directives and regulations. Since its entry into the Eurozone in May 2004, governmental agencies and legislative bodies in Cyprus have been working towards harmonising the national laws with the European directives and regulations. The procedures were primarily carried out through the establishment of the Office of the Commissioner of Telecommunications and Postal Regulation (‘the OCTPR’) in 2002 under Act 19(I)/2002. Following this, legislative rules and regulations were issued in order to have full compliance and harmonisation with the applicable EU regulations regarding telecommunications. The main priority of the legislative work was the carrying out of the obligations of Cyprus in connection with the accession into the European Union whilst at the same time creating conditions for the development and maintenance of healthy competition. The regulations that were enacted in 2003 were largely based on the European legislative framework in the telecommunications sector that was in force during that period. The EU regulatory framework was fully implemented in Cyprus by the enactment of the Act on the Regulation of Electronic Communications and Postal Services Act 112(I)/2004, and after its enactment by Parliament on 30 April 2004, Act 19(I)/2002 was abolished and the OCTPR was abolished and was renamed the Office of the Commissioner of Electronic Communications and Postal Regulation (‘the OCECPR’). It is useful to note that the regulation of telecommunications and information technology in Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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Cyprus is kept relatively separate from media and broadcasting regulations. In relation to media and broadcasting, the relevant authority is the Cyprus Radio/Television Authority (‘the CRTA’), which was established and operates as an independent regulatory body under the Radio and Television Advisory Committee – this is a consulting body, the aim of which is to reflect public opinion. The relevant national laws in relation to radio and television are the Radio and Television Stations Law 1998 and the Radio and Televisions Stations Regulations of 2000. Further, it is also interesting to note that with the exception of the incumbent operator, the Cyprus Telecommunications Authority (‘the CYTA’), which is state owned, all of the other available operators in Cyprus are privately owned. The past decade or two has seen a revolution in television and radio broadcasting and the services that can now be provided to customers. In the relatively recent past, consumer choices were restricted to a small number of channels received on a dedicated box. However, viewers and listeners today are more likely to face difficulty in making a selection from the vast number of channels and options that are now available to them. The methods of delivery have multiplied greatly and the variety of technology that is now available is vast in comparison to what it used to be. In particular this is marked by the introduction in July 2011 with full digital viewing, the switch from analogue to digital television has had already a vast impact on the variation and selection of choice to viewers across the island. REGULATION The OCECPR is the NRA in Cyprus and is entrusted by the laws of the Republic to apply the provisions of the Act on the regulation of the Electronic Communications and Postal Services, Act 112(I)/2004. The Commissioner is appointed by the Council of Ministers to head the office for no longer than six years. Furthermore, a Deputy Commissioner and an Advisory Committee are also appointed, whose duties include, inter alia, providing advice to and assisting the Commissioner in his daily duties. The OCECPR is an independent body and the competent authority for market regulation in the fields of electronic communications including networks and services and postal services, whereas the Department of Electronic Communications at the Ministry of Communications and Works is the competent authority for spectrum management. The principal aspects that fall under the supervision of the Commissioner are stipulated in Article 20 of the Act on Regulation of the Electronic Communications and Postal Services, Act 112(I)/2004 and include the following general competences: a
the application of the general policy that is to be followed from time to time and that may
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be communicated to the Commissioner by the government in relation to electronic communications; b
to ensure that terminal equipment fulfils the national and international standards and supervise the use and running of such equipment;
c
to prescribe and publish by order or decision quality standards for any public provider of electronic communications, postal services or electronic communication networks, as the case may be, and to ensure compliance with the prescribed standards and in the event that it becomes necessary, to order the taking of any corrective measures that may be required to ensure compliance;
d
the granting of authorisation for the creation, establishment or provision of electronic communications and the taking of any action necessary to ensure the efficient administration of such;
e
to establish the Cyprus Numbering Plan and to determine the procedure for the assignment and use of numbers according to the Cyprus Numbering Plan, on the basis of objective, transparent and non-discriminatory criteria, as well as any other issues concerning the assignment of numbers and the publicity of relevant procedures;
f
to regulate by order or decision issues relating to Internet domain names ending in ‘.cy’;
g
to designate undertakings with significant market power in an electronic communications market and to impose remedies for the enhancement of competition;
h
to regulate by order or decision access and interconnection, consistent with the principle of proportionality;
i
to regulate by order or decision all consumer protection issues that refer to the electronic communications sector;
j
to provide services for the resolution of any disputes that may arise;
k
to require technical, financial and legal information to be provided if and when necessary; and
l
to impose administrative fines or other penalties in relation to non-compliance in relation to the provisions of the law, orders or decisions and to prescribe by order the level of such fines and penalties and the procedures by which they are determined.
The Act on the Regulation of the Electronic Communications and Postal Services is the main instrument that regulates and governs the operation of electronic communications networks and Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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the provision of electronic communication services. All of the national laws and provisions are now in line with the EU directives and regulations. Any person who intends to provide an electronic communications network or an electronic communications service is under an obligation to notify the commissioner of their intentions. This notification must be given in advance of them proceeding to provide such services. The provision of these services is not restricted to nationals of Cyprus and so does not exclude foreign ownership, as long as the provisions in the relevant laws are fulfilled and are adhered to in the provision of and maintenance of such services. As long as a general authorisation has been granted, any undertaking may provide electronic communications networks or services in Cyprus. The provision of electronic communication networks and services is not exclusively granted to any one operator. Exclusive rights are granted only for the use of radio spectrum and numbers, if necessary. It is important to note that the regulation of telecommunications and information technology under the laws of Cyprus is maintained quite separately from the media and broadcasting regulations. With regard to media and broadcasting regulation, the CRTA was established and operates as an independent regulatory body under the Radio and Television Stations Law. The CRTA is responsible for appointing the Radio/Television Authority Committee, which is a consulting body. The responsibilities of the CRTA include, inter alia, issuing and renewing broadcasting licences for radio and television, monitoring media ownership and media content, safeguarding editorial independence and ensuring the equal treatment of individuals. The authority is also responsible for the implementation of the European Convention on Transfrontier Television with regard to the content of the private broadcasters’ programmes. The main pieces of legislation that govern the regulation of broadcasting in Cyprus are Law No. 7 (I)/1998 and the Radio and Television Stations Regulations 2000. Moreover, the CRTA, as mentioned above, is the regulator for the application of these laws. However, the aforementioned legislation does not apply to IPTV and cable TV and, therefore, the CRTA has no power over broadcasters who use these technologies. This legal gap has been recognised by the Cypriot government and the CRTA, which are now in the process of preparing a bill that will fill the existing legal gap and will reform the Cypriot Media Law according to the developments of technology and EU law and, more specifically, the Audio-visual and Media Services Directive 2007/65/EC. A bill is being prepared for public consultation and to be put into legislation. This bill was due in February 2010 and the changes should therefore be expected imminently. The major provider and telecoms operator in Cyprus is CYTA, which is a semi-governmental organisation and is considered by many to be the leading provider of integrated telecommunications services in Cyprus. In relation to mergers, acquisitions and joint ventures in the telecoms and broadcasting sectors, Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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the Commission for the Protection of Competition (‘the CPC’) is the administrative body that is responsible for the regulation of such activities and for ensuring that the relevant rules and regulations are complied with. The CPC was established in 1990 and its main responsibility is the restoration, conservation and strengthening of competition within the Republic of Cyprus. This covers the control of mergers and acquisitions between different enterprises and follows the European laws and regulations on matters of competition and transparency. The relevant law on the Control of Concentrations between Enterprises, Law 22(I)/1999, as amended in Law 22(I)/1999, aims to control any important restructurings of enterprises in the form of concentrations in relation to their effect upon the structure of the competitive market. Concentrations are considered to be of major importance and therefore require notification if the following test is satisfied: a
the annual worldwide turnover realised by each of at least two participating enterprises exceeds €3,417,202.88; and
b
at least one of the participating enterprises is concerned with commercial activities within Cyprus; and
c
at least €3,417,202.88 of the joint aggregate annual turnover of the participating enterprises concerns the sale of goods or the supplying of services within Cyprus.
The notification must be filed within the time limits set out in Law 22(I)/1999 and the enterprises must secure the relevant approval of the Commission for the notified concentration prior to effecting any such concentration. Furthermore, it is important to recognise that Cyprus has made a commitment to the World Trade Organization Basic Telecommunications Agreement following its accession to the European Union. Media enterprises in Cyprus are regulated in principle by two separate legislative instruments. The Media Law of 1989 applies to press media whereas the Radio and Television Stations Law of 1998 applies to radio and television broadcasters. The establishment, installation and operation of a broadcasting station is regulated by a licensing regime that aims to facilitate public interest considerations. A licence is only provided to a company or partnership or public body established under the laws of Cyprus or any other EU Member State. A natural person can only apply for a licence provided that this does not involve television broadcasting and only contemplates the operation of a local station with limited coverage. The ownership of a broadcasting entity is also subject to considerable restrictions. Basically, a natural person may not control, either alone or through members of his or her immediate family, more than 25 per cent of the share capital of the broadcasting company. In addition, non-EU natural persons may not exceed 25 per cent. Additional impediments are provided for persons with criminal convictions. Concessions are provided for with regard to the operation of local radio stations Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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with limited coverage. A further matter worthy of note is the NRA, which regulates the prices of operators that have significant market power. The price controls usually take place at a wholesale level but, sometimes, they can also be found at a retail level, which is designed to ensure effective competition. There are several services that are price regulated, including, inter alia, broadband and interconnection. Any decisions made by the regulatory bodies in Cyprus can be appealed before the Supreme Court. It is also interesting to note that spectrum licences can be traded or sub licensed. The Radio Communications (Competition and Negotiation) of 2002 regulations as amended govern the relevant procedures and conditions on such. INTERNET AND IP-BASED SERVICES Internet and Internet protocol regulation With regard to services regarding the Internet, these are regulated in a similar way to other electronic communication services. The relevant authority for such Internet services and regulation is the OCECPR. However, it is important to understand that other authorities are also involved in the process of regulation and compliance to ensure that the processes are correctly followed and the regulations complied with. A useful website for reference purposes is the OCECPR website.1 Here, in the licensing section, there are guidelines as to the types of networks and services requiring registration as well as different laws and regulations, for example, the Regulation of Electronic Communications and Postal Services Law of 2004 as well as the different tariffs and statistical data on electronic communications. As previously discussed, Cyprus national law has been amended in order to reflect the provisions of the EU directives and regulations. However, although compliant with some provisions of the law, they may in the future be amended and extended to cover further aspects of the Internet and IP-based services as demand for different services grows within the country. One example of such growing demand is services that provide voice, data and video and the regulation of VoIP, which are currently unregulated.
1
www.ocecpr.org.cy.
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Universal broadband service The Cypriot government and other regulatory bodies in Cyprus are working towards ensuring that the provision, accessibility and promotion of broadband is strengthened and broadened. The infrastructure for the provision of broadband is currently developing and, recently, broadband connection has been made possible in a large number of non-rural areas across the island. In November 2002, CYTA chose a company called Thirdspace to supply and deploy an advanced interactive broadband services platform in Cyprus. This cooperation has allowed the use of the platform to expand its services to include the provision of television channels, video on demand and web access via the television. Furthermore, the Cypriot government is also devoting time and effort to creating financial schemes that are designed to ensure the good accessibility and promotion of broadband and the broadening of its use throughout Cyprus. Therefore, the Cypriot government and the relevant authorities are assisting in the construction and deployment of the infrastructure for broadband in an attempt to make it more readily available across the island. Content regulation and protection According to the Act on the Regulation of the Electronic Communications and Postal Services, Act 112(I)/2004, Service Communications and Postal Services Act 112(I)/2004, service providers are not liable for personal harm or damage to property as a result of the suspension of any service of electronic communications that may be related to an unavoidable accident, natural disaster or the reasonable needs of the system or defective installations that were not installed by the provider. Apart from this immunity, the law does not recognise any other immunity for the benefit of service providers. Cyprus national law and the European regulations cover matters such as the privacy of electronic communications and other privacy related offences, for example, the illegal collection, storage, modification, disclosure or dissemination of personal data. An area of particular interest in relation to the Internet and intellectual property matters is that of domain names. In Cyprus, domain names can be applied for by individuals or by businesses or companies. The application can be made directly to the relevant body or via an ISP. In relation to companies, any company can make an application for a domain name for the whole of its name, as it is registered with the Registrar of Companies and the Official Receiver, or using a combination of letters, provided that the line of chosen letters remains the same as it appears in the name of the registered company or trading name. Furthermore, there are a number of other requirements and restrictions that need careful consideration in order for the application Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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to be successful, for instance, the name must not have a generic meaning and cannot violate any regulations or match any other registered company or company trading name. A foreign company may obtain a licence to use it only if they also have a registered trademark. In relation to natural persons, anyone can apply for the registration of a trading name, provided that they are 18 years of age and can provide the correct means of identification. The applicant does not need to be able to show that they are resident or domiciled in Cyprus. However, the contact person shown on the application form must prove that they are a Cypriot national or a permanent resident of Cyprus. Domain names raise particularly interesting issues in relation to intellectual property rights. Trademarks, company and business names and unfair competition claims, including passing off, can be used to attack a domain name licensee. It is important to understand that the registration of a domain name does not automatically imply the reservation of a name or trademark or, in fact, ownership of the domain name. It merely gives them a licence to use the domain name for the period of the licence. For this reason, it is important to protect any intellectual property rights that you may have through alternative means. Furthermore, it is the applicant’s responsibility to ensure that the name applied for does not conflict with third parties’ trade names, copyright or any other intellectual property rights. If a situation arises whereby a domain name ends up being the subject of a legal action, it will be subject to the jurisdiction of the Cypriot courts since the applicant for the licence of the domain name must have an administrative contact who is a permanent resident of Cyprus. National security The national laws and European regulations by which and under which the regulatory bodies of Cyprus operate are discussed throughout this chapter under separate headings. The regulatory bodies and security services, service providers and emergency services are obliged to operate under these laws. In relation to freedom of information legislation, even though there is no one specific legislation regulating freedom of information, Section 19 of the Cypriot Constitution protects, at the highest level, the ‘right to freedom of speech and expression’. More specifically, Paragraph 2 of Section 19 explicitly provides that this right includes ‘the freedom to hold opinions and receive and impart information’. SPECTRUM POLICY Development The main concerns of the regulatory bodies when considering changes and developments within Cyprus remain the harmonisation of laws and regulations with the EU regulations and directives and also the further development of a balanced, yet competitive environment and market that does not distort the services provided to and the protection of Cypriot and foreign consumers as Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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well as ensuring a good standard of service that is provided to the end-user. Furthermore, all radio spectrum harmonisation decisions have been transposed into national law, including Decision 2007/344/EC on the harmonised availability of information regarding spectrum use. The Department of Electronic Communications of the Ministry of Communications and Works, formerly the Directorate of Telecommunications, established in 2003, is the spectrum management authority in the Republic of Cyprus. The department works towards promoting the best use of the radio frequency spectrum and offering the best and widest service to the consumers. The relevant legislation under which the Department of Electronic Communications operates is the Radio Communications Laws of 2002 of 2004 up to No. 2, including regulations and orders issued by virtue of these said laws. The Department’s main activities cover the enforcement of the radio communications laws and the accompanying regulations as well as the planning and management of the national frequency plan and the setting of the provisions of the rights of use of spectrum. The Department also evaluates and introduces new technologies in Cyprus and monitors the use of radio spectrum by the authorised users and seeks to detect any illegal transmissions. Furthermore, the Department also conducts surveillance regarding radio equipment and the exposure of the public to electromagnetic fields. Apart from these duties, the Department also represents the government in international and regional telecommunications organisations in the field of electronic communications, for example, the ITU (International Telecommunications Union) and the Radio Spectrum Policy Group and the Radio Spectrum Committee. Flexible spectrum use The matter of developments and changes to enable more flexibility for both spectrum use and spectrum policy in general, as stated previously in relation to other areas covered by this chapter, is firstly dependent upon the national laws and regulations being harmonised with the European regulations and secondly, to ensure that the availability of services for the consumers is as wide and competitive as possible. The demand for certain types of services, for instance, mobile Internet and broadcasting, is accelerating at a rapid pace. Therefore innovation and the development of the available services require access to a wide spectrum to help fulfil the needs of consumers. As a result of development within the services available, greater efficiency in the use of spectrum for wireless electronic communications services is required and as a result, the relevant authorities are working towards providing a greater abundance of spectrum for services to end-users and opportunities for innovation. Broadband and next-generation mobile spectrum use In relation to next-generation networks, there is currently no regulation of such networks. Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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Cyprus is connected to the rest of the world via a submarine fibre-optic cable network. This network connects Cyprus directly with Greece, Italy, Israel, Syria, Lebanon and Egypt and, thereafter, with the rest of the world. The Cypriot part of the fibre-optic network is owned by CYTA Global, which is a division of the Cyprus Telecommunications Authority. CYTA provides DSL services across Cyprus. In addition, since 2001, consumers in Cyprus have had access in most urban and suburban areas as well as in a growing number of rural areas to high-speed ADSL Internet services. ADSL enables faster data transmission over copper telephone lines than a conventional modem can provide, providing speeds ranging from 256kb/s to 8Mb/s. The two major telecoms carriers, CYTA and Primetel, offer ADSL platforms through a number of ISPs that provide broadband Internet connectivity to home and business users. Recently, OTEnet-Telecom began creating its own broadband network offering ADSL services that do not use any of the above platforms. OTEnet Telecom was formed in Cyprus in 2003 as the local branch of OTE, the telecoms colossus of Greece. OTEnet provides telephony and Internet connectivity services for homes and corporations. In Cyprus, the cost of ADSL broadband is still significantly higher than in many other European countries. The consumer must pay for the rental of the telephone line, a connection fee to the platform and the fee to the ISP. Spectrum auctions and fees Spectrum auctions are already used in Cyprus, in particular in relation to the use of radio frequencies that are subject to the granting of an individual right of use or general authorisation. The calculation of the fees relating to such authorisation and other related issues are governed by detailed provisions, which are covered by the Regulations on Radio Communications (Fees) of 2004. MEDIA Digital switchover Cyprus has a good choice of television and radio stations, which are available 24 hours a day. All television and radio stations are regulated under the Cyprus Radio-Television Authority. The number and volume of television station transmissions that are available are currently dependent upon where the viewer is located in Cyprus. Some stations are broadcast nationally throughout Cyprus. However, there are some that are maintained locally in certain areas. Many television stations are also live-streamed on the Internet. However, changes have recently occurred as Cyprus has followed in the footsteps of many other European countries and on 1 July 2011, the analogue terrestrial television broadcasting stopped Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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and the official switchover to digital television took place. The move was part of a pan-European campaign to digitise television by 2012, which aims to bring extra services to consumers such as HDTV, personal video recorders and full-service VOD, as well as a broader range of channels of a higher and more interactive quality. The switchover took place throughout the various districts of Cyprus in three phases. In order to receive digital transmissions after 1 July 2011, all analogue television owners needed to purchase an MPEG4 set top box as this is the technical standard that is now required for transmission. If viewers have an old analogue television, they will no longer be able to view any channels. However, most modern televisions already have a built-in digital tuner as well as analogue and they will therefore simply need retuning. Customers will not need to buy a new antenna and if their existing set contains an MPEG4 compression box, it is ready for digital viewing. If customers have an MPEG2 box, they will need to buy a new MPEG4 decoder, or a set-top box, the average cost being €50 to €70 for a standard box, ranging up to approximately €120 for a standard box with additional features. Set-top boxes do not enable analogue viewers to display high-definition programmes. Since the switch over and the upgrading of all the platforms having been implement there are many more television channels available to viewers throughout Cyprus, offering a great range and flexibility to viewers as well as better picture quality and sound quality Further through the use of digital viewers can benefit from the use of electronic program guides (EPG) which provide them with program information such as titles, start and finish times, programme duration and descriptions.. In May 2010, the OCECPR launched a public and stakeholder awareness campaign to bring the change to digital television to the public’s attention and to provide them with information about the switch-off. It is believed that digital broadcasting uses fewer radio frequencies and so the remaining frequencies can then be used for other purposes such as radio stations, communication channels for emergency services or wireless broadband, thereby further broadening the services ultimately available to the consumer. Further digital broadcasting requires fewer radio masts and a reduced number of transmitters and substations and therefore requires less maintenance. In July 2008, the Council of Ministers decided to proceed with the licensing of two platforms for digital television. One licence was given to CyBC, PIK, for public service broadcasting and the second licence was to be sold by auction to a private operator. On 4 December 2009, the Ministry of Works and Communications and the competent electronic telecommunications authority published an invitation to tender for the auction for the licence for the establishment of a DTTV platform in Cyprus. This was done in an effort to comply with the EU policy relating to the digital switchover and the switching off of analogue signals. The applicants had to submit their applications by 22 February 2010. The auction was to be Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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conducted by the Regulator. Initially, the auction was to begin on 30 April 2010 but it was postponed until 28 June 2010. Three applicant companies were approved to participate in the auction, one of which, LRG Enterprises Ltd, was a company that formed a group for the purpose of the tender including three enterprises from other European countries (two from Greece and one from the UK). The second participant was CYTA, which also has one IPTV platform. The third was a company named Velister Ltd, which is a consortium of Cypriot television broadcasters, consisting of the channels Antenna, Logos, Sigma TV, Plus TV, LTV and Alpha and the Internet providers Primetel and Cablenet. Velister Ltd was the successful bidder in the auction for a price of ₏10 million and was awarded the licence for the second digital platform on the condition that it paid 20 per cent of the auction price by 24 September 2010 and provides a guarantee for the payment of the remaining amount of the tender price. The tender has been the subject of much media coverage and debate. Further, LRG has filed a complaint with both the Information Society and Media Directorate General of the European Commission and the Competition Directorate in relation to matters of competition law and the basic principles of public procurement concerning fairness and transparency during an auction procedure based on the European Directives 2002/21/EC, 2002/20/EC, 2002/19/EC and 2007/77/EC. Internet-delivered video content Over the past few years, there has been a rapid expansion of the services available to consumers. It is now possible for viewers to have access to live streaming, which gives viewers the ability to have real-time access to live broadcasts over the Internet and also the ability to watch replays of films or football matches in their own time. Furthermore, viewers in Cyprus can now use services such as VOD, which allows them, for example, to choose and rent movies and to watch them directly from their personal televisions. Such services are available from the major providers and telecoms operators in Cyprus at a relatively low cost. Furthermore, it is worth noting that there are several ways for consumers to access the Internet. This can be done via a DSL connection, ADSL or a dial-up subscription, so as a result of the wide availability of the Internet, it is conceivable that the majority of consumers are benefiting from the services available. Globalisation and foreign investment As previously discussed, there are no restrictions upon foreign investment in the area of electronic communications within Cyprus. However, companies that are authorised by the OCECPR have to be registered with the Department of the Registrar of Companies and the Official Receiver. Any person who intends to provide an electronic communications network or service will need to Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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notify the commissioner of their intentions; such notification must be given in advance of the services being provided. The provision of services is not restricted to only nationals of Cyprus and does not exclude foreign ownership. With regard to globalisation, this is a phenomenon that is generated simultaneously by the application of new technologies and the principles of free trade. The actual idea of globalisation does not mean a blending of technologies that may threaten cultural diversity both within Cyprus and internationally. It is, however, possible that globalisation could have a negative effect on the media industry by promoting the concentration of companies as a means of reaching the necessary competitiveness on the international market and the broadening of content to satisfy general interest to the detriment of niche interests, therefore putting commercial success before the overall quality of a product. However, there are several European regulations and, in fact, national laws that assist in the prevention, for example, of concentrations of companies that could lead to unfair competition. There are also relevant authorities within Cyprus, for example, the Department of Electronic Communications, which consistently monitor the introduction of new technologies and ensure that the authorised users conform to the laws and regulations. Mobile services Due to the growing demand for mobile media services, it is also possible to use a 3G mobile phone, a 3G modem or a specialised 3G data card within Cyprus. Such services mean that it is possible to access the Internet with broadband speeds of up to 384kb/s or up to 1.8Mb/s in the case of 3.5G (HSDPA) via a mobile phone. The coverage for 3G is still limited, mainly to urban and suburban areas, and is currently offered by Cytamobile-Vodafone and MTN. The whole of the network of Cytamobile-Vodafone and MTN has been fully upgraded to support 3.5G. Furthermore, it is interesting to note that CYTA has taken action to ensure compliance with the European Framework for safer mobile use by young people. The Cypriot mobile telecoms operators have adopted a code of conduct that provides for ensuring minimum protective measures for safer use of content provided on mobile phones. The main provisions relate to persons under 18 years of age to protect them from illegal or adult content that can be accessible via a mobile device. The code complies with the applicable European and national legislation. SECURITY Privacy and consumer protection The Commissioner has an obligation to ensure transparent processes that regulate the ability of telecommunications operations and service providers to negate the possibility of undisclosed numbers, for example, upon a request being made by a subscriber that involves the tracing of malicious calls. Such information that discloses the caller’s identity is stored and available to such persons as are nominated by the Commissioner. The same applies for calls relating to Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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emergency services. The Director of the Department of Electronic Communications at the Ministry of Communications and Works may authorise any person to monitor, use or disclose records only for a limited purpose to verify any contravention of the relevant radio communications laws or in order to ensure security and integrity in communications and communications systems. In respect of the content of such communication, the matter is regulated by a separate legislative framework, comprising of the Act on the Protection of Privilege of Private Communications (Act 92(I)/1996) and the recent Act on the Preservation of Telecommunications Data for the Purpose of Investigating Serious Criminal Offences (Act 183(I)/2007). The use of automated calling systems without human intervention, electronic mail or SMS messages for the purpose of direct marketing may only be allowed in respect of subscribers who have given their prior consent. As a result, companies conducting marketing campaigns may not send any form of marketing information in electronic (or non-automated) form such as e-mail, SMS or MMS, if the person receiving the communication has not given their express consent. With regard to unsolicited commercial communications, otherwise known as ‘spam’, under Section 15 of the Data Protection Law, personal data cannot be processed by anyone for the purposes of direct marketing or for provision of services from a distance unless the data subject notifies his or her written consent to the person responsible for processing (the data controller). If a controller wishes to carry out the processing of personal data for such purposes, he or she may, for the purpose of obtaining the data subjects consent, use his or her name and address, provided that the data has been obtained from sources accessible to the public. The Commissioner may, after consulting the Personal Data Protection Commissioner, issue an order that will safeguard the legitimate interests of persons with regard to unsolicited communications so that they are adequately protected. In a situation whereby a natural or a legal person obtains contact details of e-mail addresses, within the context of a sale of a product or service, the same natural or legal person may use these electronic details for the direct marketing of its own similar products or services, provided that customers are clearly and distinctly given the opportunity to object, free of charge and in an easy manner, to such use of their electronic contact details when they are collected and on the occasion of each message, in case the customer has not initially refused such use. Issues concerning Internet safety and protection of personal data are addressed in Part 14 of Law 112(I)/2004. Part 14 of this Law (Security, Secrecy and Data Protection) is essentially the incorporation of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector into the Republic’s municipal law. The Processing of Personal Data (Protection of Individuals) Law (No. 138(I)/2001) entered into Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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force in November 2001 and was amended by Law (No. 37(I)/2003). The national law is compliant with the acquis communautaire and especially with European Directive 96/46/EC on Data Protection. Furthermore, according to Articles 4 and 5 of the Decree on Data Retention, all authorised providers of either mobile or fixed telephony are obliged to retain the subscribers’ and the endusers’ billing data as described by Article 100(1)(a) of the Law. 112(I)2004 for six months only for the purposes of dispute resolution regarding billing. Protection for children Cyprus has signed, ratified, acceded or succeeded and essentially incorporated into the Republic’s municipal law all international treaties and conventions concerning child protection and the efficient application of Human Rights and Fundamental Freedoms in general. In particular, the Fighting of Marketing of Persons and Sexual Exploitation of Minors Law 2000 2(I)/2000 and the Convention of the Rights of the Child (Ratifying) Law 1990 (No. 243 199) (UN) Convention on the Rights of the Child Convention on Cybercrime, Budapest 23 November 2001 are laws aimed at the protection of children, particularly online. Furthermore, the European regulations, coupled with national legislation, provide protection from content-related offences, such as the dissemination of pornography, in particular child pornography and information indicating violence. Particularly, in relation to radio and television, the national Radio and Televisions Law 1998 adopts the wording of Articles 22 and 22a of the Television without Frontiers Directive 89/552/EC as amended in relation to the protection of minors. Moreover, according to the Radio and Television Stations Regulations 2000, programmes that are unsuitable for minors under the ages of 15 and 18 years respectively can only be broadcast outside the ‘family zone’. According to the Regulations, family zone means the period during which programmes in unencoded form, suitable for persons under 15 years are broadcast. The zone starts at 5.30 p.m. and ends at 9 p.m. for nights followed by working days and at 10 p.m. for nights followed by the non-working days of Saturday, Sunday, bank holidays and school holidays as well as those defined by the Public School Regulations. Furthermore, broadcasting of programmes with intense erotic content by stations that broadcast in unencoded form is prohibited. However, stations that broadcast in encoded form may broadcast such programmes after midnight until 5.30 a.m. In line with the Audio-visual and Media Services Directive 2007/65/EC Article 12, children are to be protected from adult content. CYTANET have in operation a programme called ‘Safe Internet’ which is a service that filters internet content and blocks certain internet applications. This enables parents and/or guardians to select certain categories of sites or individual sites and block them to prevent children being able to view such. CYTA are also looking to install a new service which will assist in the combating of the viewing of child pornography online, this will take place through the blocking of such sites and it is currently under consideration to progress such a scheme to other categories of sites. Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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Furthermore, the European Framework for Safer Mobile Use by Younger Teenagers and Children, makes recommendations to ensure that younger children and teenagers can be safer when accessing internet content on their mobile phone devices. The framework is a self regulatory initiative of the European Mobile Industry. Cybersecurity The incorporation of the Convention on Cybercrime of Budapest into the Republic’s municipal law is stated in Law 22(III)/2004. The law deals with, inter alia, illegal access,2 illegal interception,3 data interference,4 system interference,5 the misuse of devices,6 computer-related forgery,7 computer-related fraud,8 offences related to child pornography,9 offences related to infringement of copyright and related rights10 and sanctions and measures.11 Law 112(I) 2004 on the Regulation of Electronic Communications and Postal Services Law, 2004, provides protection against matters such as messages being sent by means of a public communications network that are grossly offensive, of an indecent, obscene or menacing character or a message for the purpose of causing annoyance, inconvenience or needless anxiety to another that is known to be false. Furthermore, Law 138(I) 2001, the Processing of Personal Data (Protection of Individuals) 2001, protects against spam, unauthorised interference with a record of personal data, receiving knowledge of data, extracting, altering, harming, destroying, processing, transmitting, notifying, making data accessible to unauthorised persons or allowing such persons to receive knowledge of the data or exploiting the data in any way. 2
Article 2.
3
Article 4.
4
Article 6.
5
Article 7.
6
Article 8.
7
Article 9.
8
Article 10.
9
Article 11.
10
Article 12.
11
Article 14.
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The Cyprus Law for the Protection of Confidentiality of Private Communications (Interception of Communications) of 1996 prohibits the unauthorised interception of any private communication, subject to certain exceptions. Further, there are current discussions about the necessity of amending the Penal Code in both legal and political forums within Cyprus so as to adopt national legislation to comply with the provisions of the Council of Europe Convention on Cybercrime. Emergency response networks The Commissioner has the power to disclose certain types of information, for example, undisclosed telephone numbers. The information on the caller’s identity is stored and is available to such persons who are nominated by the Commissioner, and this applies to calls related to emergency services, such as the police, fire fighters and first aid services. Furthermore, in relation to VoIP, which is authorised by the OCECPR according to the provisions of the decision of the terms and conditions of general authorisations PA436/2005 and the Order of the Cyprus Numbering Plan PA850/2004 and has the same regulatory rules that apply to the PSTN services, there are special provisions that apply to the access of VoIP calls to emergency services. YEAR IN REVIEW The evolution of the Cyprus economy, its accession into the EU, combined with the effects that the harmonisation process has had on national law and the strategic positioning of the island have created an ideal hub within Cyprus for the telecommunications market. The national strategy within the information technology market has been focusing heavily on the creation and development of a modern infrastructure with a large range of services and facilities being readily available to consumers and end-users. The Cyprus government has commissioned the preparation of a study for a national strategic plan, the objectives of the study being to formulate the legal framework and a national policy for an e‑commerce strategy that would place Cyprus in an advantageous position with regard to the telecommunications and information technology market. The result of the study was to create new legislation and to implement measures that work towards creating fair and open competition and transparency. We are of the opinion that the main areas of growth and development of 2011 and into 2012 will be, in particular, the further promotion of 3G network services and the increase of digital channels and greater protection online, in particular in reference to children using the internet and internet browsing facilities offered through wireless devices and mobile telephony devices.
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Furthermore, the OCECPR is a member of the Body of European Regulators for Electronic Communications (‘BEREC’). BEREC has replaced the European Regulators Group (ERG), the group through which NRAs exchange expertise and give opinions in relation to the functioning of the telecoms market in the European Union. Regulation (EC) No. 1211/2009 of the European Parliament and the Council of 25 November 2009 established the BEREC. The BEREC comprises a board of the heads of the 27 NRAs, including Cyprus, and is assisted by an office. The office is an EU body managed by a management committee in which all NRAs and the Commission are represented. BEREC has a work programme for 2010, which is set out in three separate but related strands: a
harmonisation;
b
emerging challenges; and
c
changes to the legal regulatory framework.
Changes to the existing regulatory framework are likely to result from the work of the BEREC and the NRAs of the different EU Member States. The transposition of the telecoms reform package into national legislation in the 27 EU Member States was set for completion by June 2011. The most prominent areas for reform under the new package of rules for Europe's telecoms networks and services, as proposed by the European Commission in November 2007, and agreed between the negotiators of the European Parliament, the Council of Telecoms Ministers and the Commission on 5 November 2009 focus on, inter alia; a. A right of European consumers to change, in 1 working day, fixed or mobile operator while keeping their old phone number; b. Greater information for consumers and for it to be more easily available c. The protecting of citizens' rights relating to internet access by a new internet freedom provision d. A more open and neutral ‘net’ e. Consumer protection against personal data breaches and spam mail f. Better access to emergency services g. The acceleration of broadband accessibility h. The encouragement of investment into next generation services Technology, Telecommunications & Media Law – Outlook & Perspectives 2011 Georgiades & Mylonas – Advocates & Legal Consultants
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CONCLUSIONS AND OUTLOOK OVER 2011 & 2012 During the initial years of its operation, the OCECPR set about following some main objectives. These were mainly to open up the market to alternative providers, to secure the swift and efficient operation of the market and the development of healthy and efficient competition that would ultimately upgrade and expand the quality of the services provided, to introduce new technology and generally promote consumer interests. The OCECPR initially started by carrying out detailed research and market surveys and after this, it began focusing on creating market conditions that would enable a competitive market. It would seem now that these objectives have to a great extent been achieved. There are now over 50 organisations that are licensed to offer related services across a broad range of electronic communication services. In turn, this has called for and achieved the development of the technologies and systems available here in Cyprus and the turnover of the relevant market has increased greatly. In addition, the relevant market has resulted in the creation of a large number of new employment positions. Although the laws and regulations in Cyprus are now harmonised, with regard to telecommunications and media, with the EU directives and regulations, there are still some aspects of the national laws that do not provide detailed guidance and formalities. We are of the opinion that over the coming years, there will be a call for the development of more legislation, in particular in relation to services that incorporate voice, data and video services. Building on the foundations laid by the revised telecommunications rules, the European Commission is proceeding with its work in a number of key policy issues falling within its scope. The revised telecoms framework recognises the importance for EU citizens of preserving the openness of the Internet and provides a number of regulatory tools to help ensure this outcome. In April 2011, the Commission published a Communication on the open Internet and net neutrality in Europe, outlining the way in which future developments should be implemented. The Commission is currently considering the rules on transparency, switching and quality of service that form part of the revised regulatory framework are being implemented in the Member States, we can therefore expect over the coming year changes to occur in the implementation of regulations with regards to such matters. Furthermore, user privacy is a cornerstone of the revised EU telecoms rules. Telecoms operators and Internet Service In general, providers are required by EU law to keep this data confidential and secure and to report any breaches of security that may occur. The Commission is currently preparing additional rules which will relate to in particular data breaches and the reporting of such in a harmonised manner throughout the EU, developments with regards to this are expected in September 2011.
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