Teutas - Diritto & Tecnologia

The European Commission has written to 16 Member States seeking information about their implementation of the Audiovisual Media Services (AVMS) Directive (see IP/11/373). The fact-finding letters are part of the Commission's efforts to ensure that the national media laws of all the Member States correctly implement all aspects of the AVMS Directive. Currently the Commission is in the process of analysing the measures notified by the rest of the Member States, following which a second round of letters may be sent during the second quarter of 2011. This MEMO explains the specific rules of the AVMS Directive where the Commission is seeking clarification as regards Member States' implementation.

What are the main features of the AVMS Directive?

The Directive (2010/13/EU) is based on the "country of origin" principle, whereby audiovisual media service providers are subject to the regulations in their country of origin only and cannot be subject to regulation in the destination country except in very limited circumstances

it covers both traditional television (linear services) and video-on-demand (non-linear services)

different levels of strictness (also known as “graduated regulation”) - users have different degrees of choice and control over on-demand audiovisual media services so only a minimum set of rules applies to all of them. Rules on advertising and protecting children are, on the other hand, stricter for television broadcasts

modernised rules on television advertising that improve the financing of audiovisual content

Which issues are covered by the questions submitted to the Member States?

The questions submitted to the Member States touch upon a wide variety of issues related to the implementation of the Directive.

Jurisdiction/country of origin principle

The country of origin principle is essential to give service providers legal certainty and to help them develop new cross border business models.

Jurisdiction for satellite broadcasts (Article 2)

When a broadcaster based outside the EU uses a satellite up-link in an EU country, that EU country will have jurisdiction. When there is no up-link in the EU, the EU country whose satellite capacity is used has jurisdiction.

Countries can restrict broadcast of unsuitable content (Article 2)

EU countries can restrict the retransmission of unsuitable on-demand audiovisual content that may not be banned in its country of origin when this is required by overriding general interest considerations such as the protection of minors.

Two-step safeguard for receiving countries (Article 4)

If an EU Member State objects to the content in a television broadcast from another Member State, it can use a consultation procedure (cooperation procedure) to address the country of origin. The latter shall then issue a non-binding request for the broadcaster to comply with the stricter rules of the targeted country.

If the broadcaster circumvents these national rules, the objecting country can also - with the Commission's prior approval – take binding measures (circumvention procedure).

Member States cannot block broadcasts or on-demand services from other Member States without following these procedures.

Commercial communication

Definition of audiovisual commercial communication (Article 1(1)(h))

The AVMS rules have a broad definition of what constitutes advertising, including sponsorship, product placement, teleshopping, etc. This is to ensure that all forms of commercial audiovisual content are covered by the same common set of rules, regardless of how they are used for the programmes. The AVMS rules define the conditions under which product placement is allowed. Member States are free to adopt stricter rules for media companies under their jurisdiction, provided that those rules comply with EU law.

For television advertising, limits on quantity are more flexible but the hourly limit of 12 minutes for spot advertising and teleshopping spots remains. A wide range of qualitative advertising standards to address new challenges such as potentially unhealthy foodstuffs is possible.

Basic obligations

Identification requirements (Article 5)

All audiovisual media service providers must indicate all the relevant data needed to ensure that whoever makes the editorial decisions can be held liable, but such data cannot be required before on-demand services or broadcasts are supplied, only within a reasonable period afterwards.

Prohibition of incitement to hatred (Article 6)

Member States must ensure that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality. However, such provisions must be well-defined and may not extend to vaguely-defined notions such as "causing offence".

Access for the sight- and/or hearing impaired (Article 7)

The Directive aims to make audiovisual content increasingly accessible for these groups. Governments must encourage media companies under their jurisdiction to do this, e.g. by subtitling and audio description.

Transmission periods agreed with rights holders (Article 8)

Member States shall ensure that media service providers under their jurisdiction do not transmit cinematographic works outside periods agreed with the rights holders.

Self-regulation, combined with government regulation (Article 4 (7))

The new rules require governments to encourage self-regulation in certain fields (e.g. advertising), sometimes combined with government intervention (“co-regulation”) - where their legal systems allow. Such regimes must be broadly accepted by the main stakeholders and provide for effective enforcement.

Right of reply

Right of reply in television broadcasting (Article 28)

Any private citizen or company, regardless of nationality, whose legitimate interests, in particular reputation and good name, have been damaged by incorrect information in a television programme have a right of reply or equivalent remedies.

Protection of minors

Protection of minors in on-demand services (Article 12)

Programmes which "might seriously impair" the development of minors are allowed in on-demand services, but they may only be made available in such a way that minors will not normally hear or see them. Such access controls may involve the use of PIN codes or other more sophisticated age verification systems. There are no restrictions for programmes which might simply be "harmful". In line with the subsidiarity principle, it is up to each Member State to define which programmes "might seriously impair" the development of minors.

European works

Promoting European works

The AVMS Directive contains three provisions aiming at promoting European works in on-demand services (Article 13) and European and independent works in television services (Articles 16 and 17). Articles 16 and 17 set out the minimum proportions of European works to be broadcast in television services (majority of the transmission time) and of European independent works (10% of the broadcasters' transmission time or 10% of their programming budget). Article 13 does not define any concrete proportion, leaving some freedom to the Member States to adopt the most appropriate measures to promote the production of and access to European works in on-demand services.

Major events & short news extracts

List of major events for television broadcasting (Article 14)

Under the AVMS Directive Member States can draw up a list of events of major importance (such as the Olympic Games) for their general public and take measures to ensure that these events are accessible on free-to-view television. These lists can be submitted to the European Commission for approval in order to get recognition in other Member States. At present, the lists in eight Member States approved by the Commission (Austria, Belgium, Finland, France, Germany, Ireland, Italy and United Kingdom) are in force.

Short news reports in television broadcasting (Article 15)

In order to promote the free flow of information, the Directive requires that any broadcaster established in the EU has guaranteed access to exclusively transmitted events of high public interest for the purpose of transmitting short news reports.

Regulatory cooperation

Regulatory cooperation between independent regulators (Article 30)

The Directive refers to both the existence and the role of national independent regulators (but does not include rules defining standards of independence). To ensure the correct application of the AVMS rules, these regulators must cooperate closely both among themselves and with the Commission, notably on issues of jurisdiction.

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