Earlier this month, a national tabloid newspaper won an online industry award for best use of video. One can hardly imagine a better example of convergence: an ink and paper publisher now transformed, thanks to the internet and broadband, into a purveyor of moving images.

This state of affairs confuses both regulators and policymakers. Does internet video mean that Ofcom, the broadcast and communications regulator, should be empowered to devise a set of content rules for online newspapers as if they were television stations? Or does internet video herald the death of broadcast content regulation as an increasingly irrelevant anachronism?

And what of the myriad of new actors: online-only news providers. Bloggers. News aggregators. Once they use moving images does that mean they should fall under Ofcom-style discretionary content regulation? Or should their output remain, in common with the vast majority of individual speech, only subject to the general laws of the land: obscenity, defamation, privacy, racial hatred and the rest?

These are not new questions. The constitutional challenge to the US Communications Decency Act in 1996, the EU Bangemann Charter of 1998 and the UK government Communications White Paper of 2000 all raised the question whether the internet was TV. (At a more fundamental level, antipathy to the notion that officials should have discretionary power over content goes back at least as far as John Milton.) The conclusion on each occasion was no; the internet was more akin to individual speech, which required no regulation beyond application of the general law.

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In the last year, the "internet as TV" debate has reignited over the proposals for a revised European TV Without Frontiers (TVWF) directive. This is now to be re-named the Audiovisual Media Services (AVMS) directive.

The original proposals for a revised directive by EU Commissioner Vivian Reding threatened a significant incursion of broadcast regulation into the internet. After much debate, the end result was an extension of the TVWF regime to include a new category of "TV-like" video-on-demand services, to which a slimmed down broadcast content regime will apply. Other types of video on the internet will continue to be subject only to the general law. Electronic versions of newspapers and magazines are specifically excluded.

The UK government, to its credit, strongly opposed any extension of the TVWF regime, albeit conceding as a fallback that any extension should be limited to video-on-demand. The Government believes that the final form of the AVMS directive has achieved this. There is still work to be done, however, in ensuring that national implementations of the Directive in each EU Member State properly reflect that outcome.

This is especially true of the definitions of "editorial responsibility" and "effective control", which are left to member states and are crucial in establishing the dividing line between regulated and unregulated services. An overly broad national implementation could catch, for instance, user generated content video platforms.

The internet as TV debate is reminiscent of a surreal distinction from theatre in the 1940s. A whole new generation now knows, from Mrs Henderson Presents, that if the nude girls stayed immobile on the stage, the Lord Chamberlain was happy. But let the girls move a muscle and the full force and majesty of the law would descend upon the head of the vile pornographer.

Today the trigger is not nude girls but moving images, provoking the instinctive reaction: "The picture’s moving, it’s TV, we must regulate it". Indeed, one of the criteria to qualify as an audio-visual media service in the AVMS directive is that there should be "a set of moving images".

Broadcast content regulation is an anomalous relic of the old days of spectrum scarcity. If convergence is thought to demand platform neutrality in content regulation, it does not automatically follow that it should be achieved by extending the remit of Ofcom. On the contrary, it can be achieved by rolling back broadcast regulation and subjecting the freed-up content only to the general law. If that is not palatable, the answer is not to extend broadcast regulation into areas in which it has no business. It is to refrain from seeking full platform neutrality in content regulation.

It is true that, thanks to convergence, the dividing line between broadcast and non-broadcast video is increasingly arbitrary. But rather than make that the excuse for extending broadcast regulation, it is better to live with it until the day when broadcast content regulation finally withers away, the victim of its own irrelevance.

Unfortunately, the issue is unlikely to go away. Even before the ink was dry on the AVMS directive, Tony Blair, in a speech shortly before he resigned, questioned how long the separation of press and broadcast could be maintained. “As the technology blurs the distinction between papers and television," he said, "it becomes increasingly irrational to have different systems of accountability based on technology that can no longer be differentiated in the old way.”

James Purnell, the Culture Secretary, displayed the right instincts when, in his September speech to the Royal Television Society, he said about the internet: “People understand that not everything they see will meet the same high standards as they expect from TV and radio. It is in the very nature of that medium that people can say anything legal they want, and then be judged in the court of public opinion.”

These are fine sentiments. However, the debate over the AVMS directive shows that they are not universally shared. The temptation to use convergence as an excuse to extend broadcast-style content regulation remains as strong as ever.

Graham Smith is a partner at Bird & Bird specialising in IT and intellectual property

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