Regulatory Framework - Audiovisual Media Services Directive - what's new ?
The Audiovisual Media Services Directive amends and renames the Television without Frontiers Directive, providing less detailed but more flexible regulation. And it modernises TV advertising rules to better finance audiovisual content.
The new Directive covers all audiovisual media services - that means traditional television (linear service) and video-on-demand (non-linear services). These services must be directed at the general public and intended to inform, entertain and educate under the editorial responsibility of a media service provider.
Because users have different degrees of choice and control over on-demand audiovisual media services, only a basic tier of rules applies to them. But the rules on advertising and protecting children are stricter for television broadcasts.
When a broadcaster based outside the EU uses a satellite up-link in an EU country, that country will have jurisdiction. Only when there is no up-link in the EU, does the EU country whose satellite capacity is used gain jurisdiction. This reverses the criteria defining jurisdiction under the old rules.
As under the old rules, service providers are subject only to the rules applicable in their own country (country of origin principle). This is essential to give them legal certainty and help them develop new cross border business models.
Under the new rules, EU countries can restrict the retransmission of unsuitable on-demand audiovisual content - e.g. neo-Nazi propaganda – that may not be banned in its country of origin.
if a country objects to the content in a foreign television broadcast which is wholly or mostly directed to it, 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).
All audiovisual media service providers must indicate all the relevant data needed to ensure that whoever makes the editorial decisions can be held liable.
Definition of audiovisual commercial communication (Article 1(1)(h))
The new 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, whatever mode of delivery is used for the programmes to which they are associated.
In order to promote the free flow of information, 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.
Member States must ensure that not only television broadcasters but also on-demand audiovisual media services promote European works.
The new rules define the conditions under which product placement is permitted (e.g. which programmes; identification requirement; no undue prominence, etc). Member countries are free to adopt stricter rules for media companies under their jurisdiction, provided that those rules comply with EU law.
quality standards – existing rules on protecting consumers, children and human dignity are maintained, and new challenges are addressed, e.g. potentially unhealthy foodstuffs (e.g. through calls for industry self-regulation / codes of conduct).
limits on quantity - these are now more flexible, but the hourly limit of 12 minutes for spot advertising and teleshopping spots remains (Article 23 (1)).
Governments and the Commission must encourage media service providers to develop codes of conduct curtailing such advertising.
Content which might seriously impair children’s development may be made available only in ways that ensure children will not normally have access – e.g. with access codes or other means.
The new rules aim 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.
The new rules require governments to encourage self-regulation in certain fields, 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.
The new rules recognise both the existence and the role of national independent regulators. To ensure the correct application of the Directive, these regulators must cooperate closely both among themselves and with the Commission, notably on issues of jurisdiction.