European Commission consultation on the Audiovisual Media Services Directive

The European Commission has run a consultation entitled “A media framework for the 21^st century”, which specifically focused on options for the future in each key area of the Audiovisual Media Services Directive. The aim was to check which parts of the Directive are currently fit for purpose as part of the Commission’s Regulatory Fitness and Performance Programme and to collect evidence and views on future media services policy in the form of an impact assessment.

Background

The Directive was adopted in 2007. In 2010 it was codified as Directive 2010/13/EU to ensure the free circulation of audiovisual media services within the internal market and to ensure the protection of viewers consuming audiovisual media services.   In 2013 the Commission published a green paper and consultation on “Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values”, inviting views on the changing media landscape and its implications for the Directive.  The main aim of the green paper was to open up the debate on the audiovisual media landscape in light of the convergence of media services through the development of internet TV and an increased consumption of mobile digital services.

The issues

Following the outcome of the 2013 consultation, the recent public consultation on the Directive focused on the following areas:

1. ensuring a level playing field for audiovisual media services;
2. providing for an optimal level of consumer protection;
3. user protection and prohibition of hate speech and discrimination;
4. promoting European audiovisual content;
5. strengthening the single market; and
6. strengthening media freedom and pluralism, access to information and accessibility to content for people with disabilities.

The Commission inspected each area and asked whether the provisions of the Directive to which each issue relates are “relevant, effective and fair”.

Ensuring a level playing field

Services to which the Directive applies

The consultation raised the question of whether the regulations should reach beyond the television and “TV-like” services that the Directive already regulates. Currently, it regulates broadcast services and on-demand audiovisual media services (e.g. catch-up TV and video on demand) that are offered commercially to the general public and are under the editorial responsibility of the media service provider.  The Directive does not, however, apply to services offering platforms for user-generated content, such as YouTube, or video-sharing platforms and intermediaries: such services are mainly regulated by the E-commerce Directive,^[1] which under certain conditions exempts them from liability for the content that they transmit, store or host.

Given the changing ways in which viewers access audiovisual content, the Commission invited the public to provide their opinions on whether the existing system works and whether new services should be further regulated, either through the Directive or via self/co-regulation. Aside from maintaining the status quo, the Commission provided specific policy options, including: (a) issuing guidance clarifying the scope of the Directive; (b) amending legislation other than the Directive, notably the E-commerce Directive; or (c) amending the Directive by extending all or some of its provisions to providers offering audiovisual media services that do not qualify as “TV-like”, including user-generated content.

Geographical scope

The Directive only applies to providers established in European jurisdiction, but does not regulate content delivered over the internet from countries outside the EU but which is targeted at EU internet users. The Commission asked whether the current system works and how service providers who are not established in the EU could be covered by the regulations.  The policy options put forward by the Commission include:

1. maintaining the status quo;
2. extending the geographic scope of the Directive by making its rules apply to providers of audiovisual media services from abroad that are targeting EU audiences; and
3. extending the geographic scope of the Directive by making its rules apply to non-EU providers that are not only targeting EU audiences, but whose presence in the EU is significant in terms of market share/turnover as well.

The consultation set out that both options could be achieved by requiring providers to register or to designate a representative in one Member State so that the rules of that Member State would apply.

Providing for an optimal level of consumer protection

The Directive is based on a so-called “graduated regulatory approach” and acknowledges that a core set of societal values should apply to all audiovisual media services. Lighter regulatory requirements are set out for non-linear or on-demand services as, compared with linear services, consumers have greater choice of and control over what they view in the context of on-demand services, and so there is a lesser need for regulation.

The Directive currently sets out certain rules that apply to both traditional and on-demand broadcasters in relation to the advertising of certain products, such as tobacco and alcohol, and regulates the use of sponsorship and product placement. It also includes rules that regulate advertising; for example, it sets a maximum of 12 minutes of advertising per hour on television, which only applies to television broadcasters.

Aside from maintaining the status quo, the policy options provided by the Commission include:

1. rendering the rules on commercial communications more flexible, notably those setting quantitative limits on advertising and on the number of interruptions; and
2. tightening certain rules on advertising that aim to protect vulnerable viewers, notably the rules on alcohol advertising or advertising of products high in fat, salt and sugars.

User protection, prohibition of hate speech and discrimination

The current Directive includes various rules aimed at protecting viewers/users, minors and people with disabilities and prohibiting hate speech and discrimination.

As to the protection of minors, the consultation clarified that the system of graduated regulation also applies here: the less control a viewer has, and the more harmful specific content is, the more restrictions need to apply. The Directive prohibits television programmes that “might seriously impair” the development of minors (e.g. pornography or extreme violence).  In principle, such programmes are allowed in on-demand services as long as specific protections are in place.   Programmes that might simply be “harmful” to minors can only be transmitted when it is ensured that minors will not normally hear or see them.  The Directive does not, however, set out any restrictions for programmes that might simply be “harmful”.

The consultation questioned whether the distinction between broadcasting and on-demand content provision is still relevant, effective and fair and whether the rules have been effective in protecting minors from seeing or hearing content that may harm them.

The policy options put forward by the Commission include:

1. introducing further harmonisation, such as harmonising the technical requirements to protect children, co-ordination and certification of technical protection measures, and co-ordinating labelling and classification systems or common definitions of key concepts such as minors, pornography and gratuitous violence;
2. removing the existing distinction between television broadcasting services and on-demand audiovisual media services, either by imposing the same level of protection on on-demand services as on television broadcasting services, or vice versa; and
3. extending the scope of the Directive to other online content (such as user-generated content or social media content), subjecting these services to the same rules for protection of minors that apply to on-demand audiovisual media services.

Promoting European audiovisual content

The current regulations set out rules to promote European works and cultural diversity. Television broadcasters are required to reserve part of their transmission times to European works, and 10% of transmission time needs to be dedicated to independent productions.

For on-demand services, Member States have flexibility on the means that they use to promote cultural diversity. This might include imposing obligatory financial contributions by on-demand services to production and acquisition of European works.  In order for the Commission to keep track of this, Member States are required to provide a detailed report every two years on actions taken to promote European works.

The policy options set out in the consultation include:

1. maintaining the status quo;
2. rendering the existing rules more flexible for TV broadcasters and on-demand providers;
3. removing the EU-level harmonisation on the promotion of European works, which would then be subject to national rules only; and
4. reinforcing the existing rules by, for example, introducing additional quotas for non-national European works and/or for European quality programming or for co-productions.

Strengthening the single market

As a general rule, Member State governments are not able restrict broadcasts that viewers can receive or programmes that foreign broadcasters can re-transmit in their country. The Directive provides that audiovisual media providers that provide services in the EU are regulated by the Member State in which they originate and sets out certain criteria to identify which Member State has jurisdiction over a provider.  In cases of incitement to hatred or protection of minors or where broadcasters try to circumvent stricter rules in specific Member States, the Directive allows for derogation from this approach, and in such cases Member States would have to follow specific co-operation procedures.

The consultation sought the views on the impact of the current approach and whether this should be improved. The Commission presented a set of policy options that include strengthening the existing co-operation practices among Member States or updating the existing rules to enhance their effective functioning.

Strengthening media freedom and pluralism

Independence of regulators

The Commission stressed that “free and pluralistic media are among the EU’s most essential democratic values” and emphasised the importance of considering “the role that independent audiovisual regulatory bodies can play in safeguarding those values”.

The current regulations provide that independent audiovisual regulatory authorities must co-operate with each other and the Commission. There is no obligation, however, for Member States to ensure the independence of regulatory bodies, nor to create an independent regulatory body (if such a body does not already exist).

The policy options put forward by the Commission in this area include a mandate for the independence of regulatory authorities by: (a) introducing a requirement that Member States guarantee the independence of national regulatory bodies; or (b) setting out minimum mandatory requirements for regulatory authorities, such as detailed criteria that a national regulatory body would need to meet in order to ensure its independence.

Must carry / findability

The consultation also sought feedback on issues that are currently not dealt with in the Directive, such as the ability to find content of interest to the public. Under the Universal Service Directive,^[2] Member States can in certain circumstances oblige providers of electronic communications networks to transmit specific TV and radio channels.  These are the “must-carry” rules.  Market and technological developments (including the substantial increase of audiovisual content) have highlighted the need to reflect on the validity of the must-carry rules and on whether updated rules would be required to facilitate or ensure access to public-interest content (for instance, by giving such content a certain prominence).

The consultation queried whether the existing framework is effective in providing access to certain public-interest content. The policy options put forward include removing “must carry”/EPG-related obligations at either national or EU level, extending existing “must-carry” rules to on-demand services and/or further services currently not covered by the Directive, or amending the Directive to include rules related to the “discoverability” of public-interest content.

Accessibility for people with disabilities

Under the current regulations Member States must show that they “encourage” audiovisual media service providers to provide for accessibility services for people who are heard of hearing, blind or partially sighted. The consultation sought feedback on options for the future, including strengthening EU-level harmonisation (where Member States would be obliged to ensure gradual accessibility of audiovisual works for people with visual and hearing impairments) or introducing self- and co-regulatory measures.

Events of major importance for society and short news reports

The Directive permits Member States to restrict the exclusive broadcasting of events deemed to be of major importance for society, such as the Olympic Games and the football World Cup, where such broadcasts would deprive a substantial proportion of the public of the possibility to follow these events on free-to-air television. When a Member State notifies a list of events of major importance, the Commission has to assess the list’s compatibility with EU law and if it is considered compatible, a list will benefit from “mutual recognition”.

As for short news reports, the Directive requires Member States to ensure that broadcasters established in the EU have access, on a fair, reasonable and non-discriminatory basis, to events of high interest to the public for the purpose of making short news reports.

The Commission did not provide any policy options, other than maintaining the status quo, although respondents have been asked to provide their ideas.

Comment

The traditional TV set is now only one of the many ways to access and watch audiovisual content, and the audiovisual landscape has changed significantly since the adoption of the Directive in 2007. A recent Cisco report^[3] suggests that by 2019 online video will be responsible for four-fifths of global internet traffic, and that online advertising is progressively outpacing TV advertising.  The audiovisual media landscape has undergone significant changes over the past few years due to media convergence, as the internet changes the way in which audiovisual media are consumed, and as viewers can access content from across the EU and on their mobile devices.

These developments and the need for an up-to-date regulatory framework are highlighted by the Advocate General Szpunar’s Opinion and subsequent ruling of the Court of Justice of the European Union in the New Media Online GmbH case.^[4]  In his Opinion, the Advocate General stated that internet information portals of a multimedia nature are not covered by the Directive, essentially because the content concerned is not “TV-like”.  The CJEU, however, found that an audiovisual service must not systematically be excluded from the scope of the Directive solely on the ground that the operator of the website of which that service is part is a publishing company of an online newspaper.  The review of the Directive is a significant move by the Commission, as solid policy options for revisions to the European media regulations are suggested for the first time since the adoption of the Directive in 2007.  In the Commission’s view, there is no doubt that an overhaul of the regulations is required, and there is concern that current regulations may not be appropriate, and that certain types of content may slip through the regulatory net.  This opinion is shared by the Advocate General, who stated that such content should be regulated, but that this should be achieved by adapting the regulatory framework to take account of the “specific characteristics of the internet, in particular … its multimedia nature”, rather than shoe-horning it into the remit of the current Directive.

The public consultation ran until the 30 September 2015, and the Commission plans to publish revisions to the Directive in 2016.

Juliane Althoff, Associate, Michael Simkins LLP

Article written for Entertainment Law Review.