04/12/12

Navigation path: European Commission > Audiovisual and Media Policies

AVMSD - General Principles - Freedom of reception & retransmission

Freedom to receive & retransmit

As a general rule (Article 3 of the AVMS Directive), EU governments may not restrict which broadcasts people can receive or what programmes foreign broadcasters can retransmit in their country – if the broadcasts comply with the EU Audiovisual Media Services Directive in the country where they originate.

Copyright and neighbouring rights

are not covered by the directive. Often granted separately for individual countries or territories – so broadcasters may only be able to transmit in a particular country or have to scramble the signal so only paying subscribers can view their output.

Exceptions

Unsuitable content (Article 3(2)-(6) of the directive)

EU governments can restrict the reception of unsuitable content - e.g. neo-Nazi propaganda – that may not be banned in its country of origin but violates local laws.

Any restrictions must first be approved by the Commission and are only allowed under exceptional circumstances.

• for TV broadcasts (Article 3(2)-(3)) - there must be manifest and serious violations against human dignity (incitement to hatred) or children (e.g. pornography, gratuitous violence).
• for on-demand content (Article 3(4)-(6)) – restrictions are also justified where it constitutes a grave risk to other aspects of public policy, health or security, or consumers.

Restrictions must be proportionate and applied only in the country of reception. The country where the content originates has to be given advance notice.

Overview

	TV (linear) services	On-demand (non-linear) services
Infringement of which laws?	• human dignity • protection of minors	• public policy • public health • public security • consumer protection
Severity of infringement	• manifest, serious, grave, and • at least 3 times during the last 12 months	• undermines the goals above and/or • presents a serious and grave risk to them
Advance notice for:	Commission, national government and broadcaster	Commission and national government
Commission approval required?	Yes	Yes
Restrictions must be	Compatible with EU law	Proportionate
Emergency restrictions	Preliminary restrictions possible pending Commission decision if amicable settlement not achieved	Where possible, national government must be notified and consent obtained from Commission – in the shortest possible time, indicating why emergency restrictions are needed

Resolving disputes between countries - Article 4(2)–(5)

The directive contains a 2-step procedure for this:

1. Non-binding request

If a country objects to the content of a foreign television broadcast wholly or mostly targeted at it, it can ask the authorities in the broadcast’s country of origin to issue a non-binding request for the broadcaster to comply with the rules of the targeted country.

Factors determining whether a country is “targeted” include: origin of advertising or subscription revenues, main language, targeted advertising, etc.

2. Binding restrictions

If the broadcaster circumvents the objecting country’s rules, the authorities there can impose binding restrictions – with the Commission’s prior approval, and provided the measures are solely a response to the circumvention. Binding measures could include banning:

• retransmission (cable, terrestrial, IPTV)

• advertising for the broadcasts or programmes

• advertising of local companies (under own jurisdiction)

• publication in printed or electronic programme guides

• sale of subscriptions/smart cards for pay-TV

 

On this issue, see also the related page on the satellite broadcasting and cable retransmission
 

Article 3
1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by this Directive.

2. In respect of television broadcasting, Member States may provisionally derogate from paragraph 1 if the following conditions are fulfilled:
(a) a television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 27(1) or (2) and/or Article 6;
(b) during the previous 12 months, the broadcaster has infringed the provision(s) referred to in point (a) on at least two prior occasions;
(c) the Member State concerned has notified the broadcaster and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again;
(d) consultations with the transmitting Member State and the Commission have not produced an amicable settlement within 15 days of the notification provided for in point (c), and the alleged infringement persists.
The Commission shall, within two months following notification of the measures taken by the Member State, take a decision on whether the measures are compatible with Union law.
If it decides that they are not, the Member State will be required to put an end to the measures in question as a matter of urgency.

3. Paragraph 2 shall be without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the broadcaster concerned.

4. In respect of on-demand audiovisual media services, Member States may take measures to derogate from paragraph 1 in respect of a given service if the following conditions are fulfilled:
(a) the measures are:
(i) necessary for one of the following reasons:
– public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons;
– the protection of public health;
– public security, including the safeguarding of national security and defence;
– the protection of consumers, including investors;
(ii) taken against an on-demand audiovisual media service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives;
(iii) proportionate to those objectives;
(b) before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has:
(i) asked the Member State under whose jurisdiction the media service provider falls to take measures and the latter did not take such measures, or they were inadequate;
(ii) notified the Commission and the Member State under whose jurisdiction the media service provider falls of its intention to take such measures.

5. Member States may, in urgent cases, derogate from the conditions laid down in point (b) of paragraph 4. Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State under whose jurisdiction the media service provider falls, indicating the reasons for which the Member State considers that there is urgency.

6. Without prejudice to the Member State's possibility of proceeding with the measures referred to in paragraphs 4 and 5, the Commission shall examine the compatibility of the notified measures with Union law in the shortest possible time. Where it comes to the conclusion that the measures are incompatible with Union law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question.

Article 4
1. Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive provided that such rules are in compliance with Union law.

2. In cases where a Member State:
(a) has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules of general public interest; and
(b) assesses that a broadcaster under the jurisdiction of another Member State provides a television broadcast which is wholly or mostly directed towards its territory, it may contact the Member State having jurisdiction with a view to achieving a mutually satisfactory solution to any problems posed. On receipt of a substantiated request by the first Member State, the Member State having jurisdiction shall request the broadcaster to comply with the rules of general public interest in question. The Member State having jurisdiction shall inform the first Member State of the results obtained following this request within two months. Either Member State may invite the contact committee established under Article 29 to examine the case.

3. The first Member State may adopt appropriate measures against the broadcaster concerned where it assesses that:
(a) the results achieved through the application of paragraph 2 are not satisfactory; and
(b) the broadcaster in question has established itself in the Member State having jurisdiction in order to circumvent the stricter rules, in the fields coordinated by this Directive, which would be applicable to it if it were established in the first Member State.
Such measures shall be objectively necessary, applied in a non-discriminatory manner and proportionate to the objectives which they pursue.

4. A Member State may take measures pursuant to paragraph 3 only if the following conditions are met:
(a) it has notified the Commission and the Member State in which the broadcaster is established of its intention to take such measures while substantiating the grounds on which it bases its assessment; and
(b) the Commission has decided that the measures are compatible with Union law, and in particular that assessments made by the Member State taking those measures under paragraphs 2 and 3 are correctly founded.

5. The Commission shall decide within three months following the notification provided for in point (a) of paragraph 4. If the Commission decides that the measures are incompatible with Union law, the Member State in question shall refrain from taking the proposed measures.

6. Member States shall, by appropriate means, ensure, within the framework of their legislation, that media service providers under their jurisdiction effectively comply with the provisions of this Directive.

7. Member States shall encourage co-regulation and/or self-regulatory regimes at national level in the fields coordinated by this Directive to the extent permitted by their legal systems. These regimes shall be such that they are broadly accepted by the main stakeholders in the Member States concerned and provide for effective enforcement.

8. Directive 2000/31/EC shall apply unless otherwise provided for in this Directive. In the event of a conflict between a provision of Directive 2000/31/EC and a provision of this Directive, the provisions of this Directive shall prevail, unless otherwise provided for in this Directive.

Home | News | A-Z | Contact | Site map