Principles for regulating Audiovisual Media Services at European level.

Technological neutrality

The AudioVisual Media Services Directive (AVMSD) covers all services with audiovisual content irrespective of the technology used to deliver the content. The rules apply whether you watch news or other audiovisual content on TV, on the Internet, on cable or on your mobile device. Taking into account the degree of choice and user control over services, the AVMSD makes a distinction between linear (television broadcasts) and non-linear (on-demand) services.

Graduated regulation

The distinction between linear and on-demand services is the basis for a graduated regulatory approach.

In a two-tier system of rules the Directive acknowledges a set of core societal values applicable to all audiovisual media services, but provides lighter regulation to on-demand services where the users have a more active, "lean-forward" approach and decide on the content and the time of viewing.

All audiovisual media services have to respect the basic tier of obligations in the following areas:

  • identification of media service providers
  • prohibition of incitement to hatred
  • accessibility for people with disabilities
  • qualitative requirements for commercial communications
  • sponsoring
  • product placement

Stricter rules in the areas of advertising and protection of minors are foreseen for television broadcasts due to their impact on society.

Scope

Audiovisual media services

Audiovisual media services are:

  • television broadcasts;
  • content selected by viewers ("on-demand") over an electronic communications network (typically Connected TV sets, mobile devices or the internet) for watching at a time of their choice;
  • audiovisual advertising

More specifically, such content is provided:

  • commercially (not on private individuals' websites).
  • for the general public (not including any form of private correspondence).
  • as a programme (not including websites containing ancillary audiovisual elements such as graphical elements or short adverts).
  • under the editorial responsibility of a media service provider – meaning they control the selection and organisation of the programmes.
Click to read the legal text
Article 1 (1) a
“Audiovisual media service” means:
(i) a service as defined by Articles 56 and 57 of the Treaty which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of Article 2(a) of Directive 2002/21/EC. Such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph;
(ii) audiovisual commercial communication;"

Television broadcasts (linear services)

Programmes provided by a media service provider at a scheduled time and watched simultaneously by viewers.

Rules in the Directive that apply to TV broadcasts only:
  • Events of major importance and short news reporting (Chapter V)
  • Quotas for promotion and distribution of European television programmes (Chapter VI)
  • Time limits for TV advertising and teleshopping (Chapter VII)
  • Stricter rules on the protection of minors (Chapter VIII)
  • Right of reply (Chapter IX)
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Article 1 (1) e
(e) “television broadcasting” or “television broadcast” (i.e. a linear audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule;

On-demand services (non-linear services)

Programmes users select from a catalogue offered by the media service provider, to watch at their own convenience.

Rules in the Directive that apply to on-demand services only (Chapter IV):
  • Protection of minors (Article 12)
  • General promotion and distribution of European works (Article 13)
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Article 1 (1) g
(g) “on-demand audiovisual media service” (i.e. a non-linear audiovisual media service) means an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider;"
Article 12
Member States shall take appropriate measures to ensure that on-demand audiovisual media services provided by media service providers under their jurisdiction which might seriously impair the physical, mental or moral development of minors are only made available in such a way as to ensure that minors will not normally hear or see such on-demand audiovisual media services.
Article 27
  1. Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence.
  2. The measures provided for in paragraph 1 shall also extend to other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts.
  3. In addition, when such programmes are broadcast in unencoded form Member States shall ensure that they are preceded by an acoustic warning or are identified by the presence of a visual symbol throughout their duration.

Common Rules

The directive contains the following rules that apply to both TV broadcasts and on-demand content:

  • Encouraging co-regulation and self-regulatory regimes (Article 4 paragraph 7)
  • Identifying the media service provider (Article 5)
  • Incitement to hatred (Article 6)
  • Accessibility for people with disabilities (Article 7)
  • Transmission of cinematographic works (Article 8)
  • Requirements for audiovisual commercial communications (Article 9)
  • Sponsoring (Article 10)
  • Product Placement (Article 11)
Click to read the legal text
Article 4 (7)
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.
Article 5
Member States shall ensure that audiovisual media service providers under their jurisdiction shall make easily, directly and permanently accessible to the recipients of a service at least the following information:
  • the name of the media service provider;
  • the geographical address at which the media service provider is established;
  • the details of the media service provider, including its electronic mail address or website, which allow it to be contacted rapidly in a direct and effective manner;
  • where applicable, the competent regulatory or supervisory bodies.

Article 6
Member States shall ensure by appropriate means 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.

Article 7
Member States shall encourage media service providers under their jurisdiction to ensure that their services are gradually made accessible to people with a visual or hearing disability.

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.

Article 9

  1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
    • (a) audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited;
    • (b) audiovisual commercial communications shall not use subliminal techniques;
    • (c) audiovisual commercial communications shall not:
      • (i) prejudice respect for human dignity;
      • (ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
      • (iii) encourage behaviour prejudicial to health or safety;
      • (iv) encourage behaviour grossly prejudicial to the protection of the environment;
    • (d) all forms of audiovisual commercial communications for cigarettes and other tobacco products shall be prohibited;
    • (e) audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages;
    • (f) audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited;
    • (g) audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.
  2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended.

Article 10

  1. Audiovisual media services or programmes that are sponsored shall meet the following requirements:
    • (a) their content and, in the case of television broadcasting, their scheduling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
    • (b) they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;
    • (c) viewers shall be clearly informed of the existence of a sponsorship agreement. Sponsored programmes shall be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in an appropriate way for programmes at the beginning, during and/or at the end of the programmes.
  2. Audiovisual media services or programmes shall not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.
  3. The sponsorship of audiovisual media services or programmes by undertakings whose activities include the manufacture or sale of medicinal products and medical treatment may promote the name or the image of the undertaking, but shall not promote specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.
  4. News and current affairs programmes shall not be sponsored. Member States may choose to prohibit the showing of a sponsorship logo during children’s programmes, documentaries and religious programmes.

Article 11

  1. Paragraphs 2, 3 and 4 shall apply only to programmes produced after 19 December 2009.
  2. Product placement shall be prohibited.
  3. By way of derogation from paragraph 2, product placement shall be admissible in the following cases unless a Member State decides otherwise:
    • (a) in cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes;
    • (b) where there is no payment but only the provision of certain goods or services free of charge, such as production props and prizes, with a view to their inclusion in a programme.
      The derogation provided for in point (a) shall not apply to children’s programmes.

Programmes that contain product placement shall meet at least all of the following requirements:

  • (a) their content and, in the case of television broadcasting, their scheduling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
  • (b) they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;
  • (c) they shall not give undue prominence to the product in question;
  • (d) viewers shall be clearly informed of the existence of product placement. Programmes containing product placement shall be appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer.

By way of exception, Member States may choose to waive the requirements set out in point (d) provided that the programme in question has neither been produced nor commissioned by the media service provider itself or a company affiliated to the media service provider.

  1. In any event programmes shall not contain product placement of:
    • (a) tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products;
    • (b) specific medicinal products or medical treatments available only on prescription in the Member State under whose jurisdiction the media service provider falls.

 

Freedom of Reception & retransmission

As a general rule (art 3), 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. In case of disputes (art 4) between countries in case of circumvention of rules, the Directive contains a two step procedure.

EU governments can restrict the reception of certain content - e.g. incitement to hatred – that may not be banned in its country of origin but violates local laws.

Any restrictions must first be approved by the Commission following an established procedure 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.

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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 television broadcast coming from another Member State manifestly, seriously and gravely infringes Article 27(1) or (2) and/or Article 6;
    • during the previous 12 months, the broadcaster has infringed the provision(s) referred to in point (a) on at least two prior occasions;
    • 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;
    • 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.
  3. 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.
    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:
    • the measures are:
      • 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;
      • 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;
      • proportionate to those objectives;
    • 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:
      • 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;
      • 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.

 

 

TV (linear) services

On-demand (non-linear) services

Infringement of which laws?

  • incitement to hatred
  • protection of minors
  • public policy
  • public health
  • public security
  • consumer protection

Severity of infringement

  • manifest, serious, grave,
  • 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

The Directive contains a 2-step resolution procedure for disputes between countries in case of circumvention of stricter rules:

  • 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.
  • 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 10 July 2015, the Commission adopted a decision on the compatibility with EU law of the Lithuanian measures. On 17 february 2017, The Commission adopted another decision on the compatibility with EU law of measures taken by Lithuania.

Click to read the legal text

Article 4 (2-8)

  1. In cases where a Member State:
    • has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules of general public interest; and
    • 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.
  2. The first Member State may adopt appropriate measures against the broadcaster concerned where it assesses that:
    • the results achieved through the application of paragraph 2 are not satisfactory; and
    • 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.
  3. A Member State may take measures pursuant to paragraph 3 only if the following conditions are met:
    • 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
    • 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

 

Stricter rules

Member States are free to apply more detailed or stricter rules in the fields coordinated by the AVMSD to media service providers under their jurisdiction, provided those rules are consistent with the general principles of European Union law.

As an example, Member States are able to lay down more detailed or stricter ruleson television advertising, as long as these rules are in conformity with European Union law and in particular are not applicable to the retransmission of broadcasts originating in other Member States.

With a view to ensure that the interests of television viewers are fully and properly protected, Member States are also free to maintain or set more detailed or stricter rules with respect to television advertising and in certain circumstances to lay down different conditions for television broadcasters under their jurisdiction.

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Article 4 (1)
  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.

 

Transparency requirements

The AVMSD obliges Member States to ensure that users have easy and direct access at any time to information about the media service provider.

In particular, service users must have access to the provider's name and address, including its electronic address or website and the competent regulatory or supervisory authority.

Click to read the legal text
Article 5

Member States shall ensure that audiovisual media service providers under their jurisdiction shall make easily, directly and permanently accessible to the recipients of a service at least the following information:

  • the name of the media service provider;
  • the geographical address at which the media service provider is established;
  • the details of the media service provider, including its electronic mail address or website,which allow it to be contacted rapidly in a direct and effective manner;
  • where applicable, the competent regulatory or supervisory bodies.

 

Jurisdiction

The authorities in each EU country must ensure all audiovisual media services originating there comply with their own national rules giving effect to the Audiovisual Media Services Directive. The system also ensures that broadcasters who have an impact on EU audiences are covered by the directive even when they are not established in the EU. EU authorities can exercise power via up-links located on their territory or the use of satellite capacity.

  • Country of Origin principle
    Providers only need to abide by the rules of a Member State rather than in multiple countries - making things simpler for service providers, especially those wishing to develop cross-border business.
    If any EU country adopts national rules that are stricter than the directive (as they are free to do), these can only be applied to providers in that jurisdiction.
  • How is jurisdiction decided?
    To avoid cases of double jurisdiction or absence of jurisdiction, each provider of media services comes under the jurisdiction of one and only one EU country for the purposes of the directive.
    This will depend chiefly on where their central administration is located and where management decisions are taken on programming or selection of content.
    Further (subsidiary) criteria include the location of the workforce and any satellite uplink, and the use of a country’s satellite capacity.
Click to read the legal text of Article 2
  1. Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.
  2. For the purposes of this Directive, the media service providers under the jurisdiction of a Member State are any of the following:
    • those established in that Member State in accordance with paragraph 3;
    • those to whom paragraph 4 applies.
  3. For the purposes of this Directive, a media service provider shall be deemed to be established in a Member State in the following cases:
    • the media service provider has its head office in that Member State and the editorial decisions about the audiovisual media service are taken in that Member State;
    • if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates.
      If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in each of those Member States, the media service provider shall be deemed to be established in the Member State where it has its head office.
      If a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in neither of those Member States, the media service provider shall be deemed to be established in the Member State where it first began its activity in accordance with the law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;
    • if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State.
    • Media service providers to whom the provisions of paragraph 3 are not applicable shall be deemed to be under the jurisdiction of a Member State in the following cases:
      • they use a satellite up-link situated in that Member State;
      • although they do not use a satellite up-link situated in that Member State, they use satellite capacity appertaining to that Member State.
    • If the question as to which Member State has jurisdiction cannot be determined in accordance with paragraphs 3 and 4, the competent Member State shall be that in which the media service provider is established within the meaning of Articles 49 to 55 of the Treaty on the Functioning of the European Union.
    • This Directive does not apply to audiovisual media services intended exclusively for reception in third countries and which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States.

 

Team responsible
Published: 
Monday, 6 July, 2015
Last update: 
Tuesday, 9 May, 2017