The EU’s Audiovisual Media Services Directive governs EU-wide coordination of national legislation on all audiovisual media, both traditional TV broadcasts and on-demand services.
The aims of the AVMS directive are to:
- provide rules to shape technological developments
- create a level playing field for emerging audiovisual media
- preserve cultural diversity
- protect children and consumers
- safeguard media pluralism
- combat racial and religious hatred
- guarantee the independence of national media regulators.
The European Commission contends that the AVMS directive has fostered unhindered cross-border transmission of audiovisual media services within Europe. Whilst we in the EPC are happy to agree, the media environment has, however, changed dramatically since the Directive was adopted in 2007. Media convergence is now a reality. The traditional TV set is now only one of the means to watch audiovisual content as Connected TV, set-top boxes, but also PCs, laptops, tablets and smartphones are increasingly used.
Whilst it is true that the AVMS consultation is mainly directed at the audiovisual sector at large, it does also touch upon issues that may directly or indirectly impact online platforms and global players, but also online publishing and in particular the freedom of the press.
The European Commission’s new proposal on the revision of the EU AVMS Directive (published 25 May 2016) indicates that newspaper and magazine sites will continue to be excluded from the directive and only services where the principal purpose is the provision of programmes in order to inform, entertain or educate will come under it. The proposal reads: “However, this exclusion should not apply to standalone parts of online newspapers featuring audiovisual programmes or user-generated videos where those parts can be considered dissociable from their main activity, namely provision of news by non-audiovisual means.” In other words, online press can continue to use video as part of their digital coverage so long as it is integral to the story but, if the publication launches a standalone platform containing just audiovisual content, this would fall under the directive’s regulation.
In the new proposal, video-sharing platforms will be obliged to put in place measures on protection of minors and incitement to hatred.
- HFSS and alcohol: No watershed or ban proposed, but Members States will be encouraged to reduce minors’ exposure to HFSS and alcohol advertising through self and co-regulatory measures;
- Scheduling: the hourly limit will be replaced by a daily limit of 20% between 7h00 and 23h00 although films made for TV could be interrupted more often;
- Product Placement: Product placement will now be allowed in all programmes except news and current affairs, consumer affairs, religious or children’s programmes. The “undue prominence” rule will no longer apply but viewers must be informed if a programme contains product placement.
Regarding promotion of European works:
On-demand services will be obliged to reserve at least 20% share for European works in their catalogues. Member States will also be able to impose financial contributions on on-demand services in their country or in some situations, outside, where the service targets their national audiences.
In terms of how viewers consume audiovisual content, there has been further blurring, since the adoption of the AVMS directive, of the boundaries between linear and non-linear audiovisual services as more and more online services are made available by broadcasters and VOD platforms, increasing competition and choice at the consumer level but causing a distortion of ‘regulatory’ competition.
Today it is largely up to the viewers when, where and on what device they consume the audiovisual content available where they live. Consumers are well served: they continue to have an increasing choice between a growing number of services, some broadcast-based, some internet-native.
The above, in combination with the emergence of a globalised and powerful alternative VOD provision, challenges the current providers and makes everybody wonder if the obligations on TV broadcasters alone are indeed unfair.
Those competing players and newer markets are no longer in their infancy and given that the regulation should be forward-looking, those developments should be taken into account to ensure European broadcasters are not unfairly burdened.
Current television sets, the so-called Smart TVs, allow Europeans to access both linear (compliant with full AVMSD rules) and non-linear (compliant with less strict AVMSD rules) content. As the two types of services are available on the same platform/set, applying different levels of rules are no longer justified. Perhaps definitions should be reviewed to clarify the role of these new players.
From a publisher’s perspective, newspapers, magazines and journals are cross border and all publishers now have web-based and mobile apps that are accessible to readers throughout the EU and beyond. For us, as with any business likely to cross borders, what is essential is legal certainty. Legal certainty that whatever we distribute will be legally acceptable wherever it ends up; legal certainty that we will not be subject to 28 different legal systems in the 28 different Member States of the European Union – and potentially liable for a panoply of legal actions differing from one country to another.
This is especially relevant for the media sector, which bases its business on the dissemination of professional journalistic and quality content, without fear of either prior control or restrictions to free circulation. To prevent any such attempts at restriction, all EU regulation that touches on the media sector, even indirectly, should:
- always in a very clear and straightforward way stress that it cannot in any way be used to limit freedom of expression;
- ensure that any revision to provisions on advertising must not negatively affect the online press business model;- always use the country of origin principle, so that no EU member state government is able to impede the dissemination of the media which is legally compliant at the country of origin; and
- pass the proportionality test favouring self-regulation rather than statutory regulation when possible.