The Commission's recently presented Digital Single Market strategy announces a review of the Audiovisual Media Services Directive (AVMSD) under the title “A media framework for the 21st century” in 2016.
According to the Strategy, the Commission will examine the functioning of the EU AVMSD and “will review the Audiovisual Media Services Directive with a focus on its scope and on the nature of the rules applicable to all market players, in particular measures for the promotion of European works, and the rules on protection of minors and advertising rules.”
Accordingly, the Commission is currently carrying out an assessment of the AVMSD via the new Regulatory Fitness (REFIT) evaluation process, under the recently adopted Commission's Better Regulation Framework and an analysis of policy options for the future of the Directive.
The feedback sought by the Commission to this Public consultation will provide input to both the REFIT and the Impact Assessment.
Why a Public consultation? Why now?
Already in 2013, the Commission carried out a consultation on media convergence via a green paper. The outcomes of that consultation helped identify the issues to be addressed in the public consultation being launched today.
Meanwhile, since 2013, there has also been a wider public policy debate, including reports from the European Parliament and Council conclusions (see dedicated question underneath).
This public consultation now specifically ask stakeholders what are the costs and benefits of the AVMSD and asks them for their opinion on different options for the future in each key area of the AVSMD.
Along with the public consultation, everyone in Europe is invited to an online platform where they can send ideas on how to improve legislation, provide their personal experience on how the AVMSD works, submit videos and audio material, even create polls to ask other people's views on their suggestion.
What is Better Regulation?
Better Regulation is about designing EU policies and laws so that they achieve their objectives at minimum cost. It takes the form of a Commission Communication published on 19 May 2015. It ensures that policy is prepared, implemented and reviewed in an open, transparent manner, informed by the best available evidence and backed up by involving stakeholders.
To ensure that EU action is effective, the Commission assesses the expected and actual impacts of policies, legislation and other important measures at every stage of the policy cycle - from planning to implementation, to review and subsequent revision.
What is REFIT?
The Regulatory Fitness and Performance Programme (REFIT) is part of Better Regulation.
REFIT aims to identify, assess, adopt and monitor the implementation of initiatives which will lead to significant regulatory cost reduction and simplification. This will allow policy objectives set to be achieved and the benefits of EU legislation to be enjoyed at lowest cost and with a minimum of regulatory burden.
The AVMSD will undergo a regulatory fitness check under REFIT
What are the criteria against which AVMSD will be evaluated under REFIT?
The REFIT framework sets out the following criteria for evaluation of EU legislation:
- European Added Value
What is the timeline ahead of us?
This public consultation will run until 30 September 2015. A review of the AVMSD will take place in 2016.
Is this the first time that the Commission consults the public on these issues?
No. In 2013, the Commission invited stakeholders to share their views on the changing media landscape and borderless Internet in particular on market conditions, interoperability and infrastructure, and implications for EU rules.
In the same year, the Commission launched a public consultation on the independence of audiovisual regulatory bodies The Commission sought the views of stakeholders on the need to strengthen cooperation between regulatory authorities and reinforce their independence.
Is the public consultation the only way for the Commission to gather evidence for the evaluation of the Directive?
No. The Commission will rely on a number of sources for data and information on the application of the Directive so far, amongst others:
- The replies to the three Commission public consultations launched in 2013 (see above).
- The First Commission Report on the application of the AVMSD. The report found that the audiovisual sector is undergoing rapid change in technology and business practices. It also found that further guidance is needed on issues related to connected TVs and their rapid take-up.
- The First Commission Report on the promotion of European works on EU television and On-Demand services, for the period 2009-2010.
- The Reports of the European Audiovisual Observatory.
- The reports of the European Group of Regulators (ERGA) and the opinions on policy of the Member States representatives in the Contact Committee set up in the AVMSD.
- Studies procured by the European Commission
- An informal data gathering exercise that the Commission is carrying out with relevant stakeholders in the context of REFIT.
Have EU institutions other than the Commission expressed views on the AVMSD so far?
- The Council conclusions adopted under the Italian Presidency in 2014 specifically invited the Commission to "Urgently complete the exercise of the review of the Audiovisual Media Service (AVMS) Directive in the light of the rapid technological and market changes resulting from the digital shift, and on the basis of the outcome of this review submit an appropriate proposal for the revision of this Directive as soon as possible, in respect of the principle of subsidiarity."
- Two own-initiative reports were adopted by the European Parliament. The "Connected TV" report of July 2013 (Rapporteur MEP Petra Kammerevert (S&D, DE)) and the "Report on Preparing for a Fully Converged Audiovisual World" of March 2014 (Rapporteur MEP Sabine Verheyen (EPP, DE)).
- The European Economic and Social Committee adopted in September 2013 an Opinion on the Green Paper "Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values".
What does this public consultation focus on?
The public consultation focuses on the following areas:
- Ensuring a level playing field for audiovisual media services;
- Providing for an optimal level of consumer protection;
- User protection and prohibition of hate speech and discrimination;
- Promoting European audiovisual content;
- Strengthening the single market;
- Strengthening media freedom and pluralism, access to information and accessibility to content for people with disabilities.
Who are the stakeholders from whom the Commission mostly seeks feedback?
Everyone's feedback is welcome and has an equal weight. This is an opportunity for individual viewers to make their voice heard and consumer organisations, market players from the whole value chain and public administrations at all levels are all encouraged to contribute.
What are the general objectives of the AVMSD?
The AVMSD aims to ensure the free circulation of audiovisual media services within the internal market. It equally aims at preserving and promoting cultural diversity, one of the EU's biggest assets. Last but not least, the AVMSD aims to ensure the protection of viewers consuming audiovisual media services.
The AVMSD applies to all the Member States. Does that mean that the same level of protection is afforded and that obligations are the same in each Member State?
No. The AVMSD is a Directive. This means that Member States are free to choose the most appropriate means to achieve the EU objectives at the national level.
Also, AVMSD is a minimum harmonisation Directive. This means that Member States are free to put in place stricter rules at the national level provided that those rules are consistent with the general principles of European law.
What services does the AVMSD regulate?
The AVMSD regulates broadcast services (e.g. TV channels) and on-demand audiovisual media services (Programmes users select from a catalogue to watch at their own convenience e.g. catch-up TV, video-on-demand).
To fall under the rules, these services should be offered:
- Commercially (so not on private individuals' websites).
- For the general public (so does not include any form of private correspondence).
- As a programme (which has to be "like TV" so does not include websites containing ancillary audiovisual elements such as graphical elements or short adverts).
- Under the editorial responsibility of a media service provider – meaning that the provider controls the selection and organisation of the programmes.
Also, the media service provider should fall under EU jurisdiction. This would mostly mean when their central administration is in a EU Country and management decisions on programming or selection of content are taken in a EU country.
The Public consultation seeks feedback on whether this system works or whether new services should be further regulated, either by the Directive or via self/co-regulation.
Does the AVMSD only apply to content delivered via specific technologies or devices?
No. The Directive is technologically neutral, i.e. it covers all services with audiovisual content irrespective of the technology used to deliver the content. This means the rules apply whether users watch news or other audiovisual content on TV, on the Internet or on their mobile phone.
Are online video sharing platforms covered by this Directive?
The Directive does not cover services when the provider does not hold control (the so-called "editorial responsibility") for the content offered.
So for example Netflix is covered by AVMSD because it decides on the content and the organisation of the programmes.
On the other hand, the user-generated content offered by YouTube is not covered because YouTube does not exercise control over that.
Broadcasting and the Internet are global. What about services based outside Europe?
The AVMSD applies only to providers who are under EU jurisdiction.
In terms of satellite broadcasting, this jurisdiction lies with the Member State in which the satellite up-link is located or the satellite capacity used is 'appertaining to that Member State'.
The AVMSD does not apply to content delivered over the Internet from countries outside the EU, but targeting EU Internet users.
The Public consultation seeks feedback on whether this system works and whether and how operators with no establishment in the EU could be covered by the rules.
Does the AVMSD apply the same rules to broadcast and on-demand audiovisual media services?
A basic tier of AVMSD rules (e.g. prohibition of incitement to hatred and the obligation to make services gradually accessible to people with disabilities) apply to all services.
In some fields covered by the AVMSD, different rules apply to broadcast and on-demand services. This is the case for the rules on protection of minors; commercial communications; the promotion of European works; some rights to access to information like events of major importance for society. The reason for this is that consumers have more choice and greater control of what they view in on-demand services, hence there is a smaller need for regulation in this area.
However, convergence (the progressive merging of the progressive merging of traditional broadcast services and the Internet) is blurring these lines. Consumers may sometimes find it hard to tell the difference.
The public consultation asks whether in the fields where these distinct rules apply, this distinction is still justified and, if not, whether we should go towards a liberalisation or towards stricter rules.
What is the country of origin principle?
The AVMSD allows companies to provide their services in the whole EU by complying only with the rules of the EU country under whose jurisdiction they fall.
This means content only needs to be checked once rather than in multiple countries - making things simpler for service providers, especially those wishing to develop new 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 within this country.
This approach has created legal certainty, saved costs and increased the number of potential viewers across borders.
The public consultation contains a section on "Strengthening the single market". Why is the Commission consulting on that field?
As a general rule 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 Directive in the country of jurisdiction.
Exceptions apply (i.e. governments can restrict the reception of some content) in specific cases (e.g. manifest and serious incitement to hatred) and when specific procedures are followed.
The Public consultation seeks views on the impact of the current approach and its costs and benefits.
It also seeks views on whether the functioning of the current approach should be improved. In this regard, the public consultation presents a set of policy options including strengthening the existing cooperation practices among the Member States or updating the existing rules to enhance their effective functioning.
Why is feedback requested on commercial communications (advertising, sponsorship etc.)?
Traditional and on-demand broadcasters have to follow EU rules related to the advertising of certain products (e.g. tobacco and alcohol) and advertising targeting children. Rules which limit advertising to 12 minutes per hour transmitted only apply to TV broadcasters.
The public consultation asks what is the impact of these rules and whether they should stay as they are or be changed in the future either by rendering them more flexible (e.g. on the number of interruptions due to advertising) or more stringent in certain cases, for example when it comes to advertising of alcohol or fatty food.
How does the public consultation address the importance of protecting children and teenagers in a progressively converged world?
The Directive bans programmes that "might seriously impair" the development of minors (i.e. pornography or gratuitous violence) in television broadcasting. Such programmes are in principle allowed in on-demand services, but only if specific protections are put in place.
With children and teenagers consuming more and more on-demand content and abandoning traditional TV, it is important to assess the soundness of the current rules.
The public consultation seeks feedback on the impact of the existing rules and on policy options for the future. Possible options include to align the rules for broadcast and on-demand services; rely more on self and co-regulation; and further harmonise the technical requirements to protect children.
How does the public consultation address measures to promote European series and cinema in light of market and technology developments?
The AVMSD lays down rules to promote European works and as such cultural diversity. Television broadcasts have to reserve part of their transmission time to EU works and independent productions. Member States have flexibility on the means that on-demand services can use to best promote EU works. One of such means is to lay down an obligation for on-demand services to contribute to the production and rights acquisition of European works.
The public consultation seeks feedback on the impact of the existing rules and on policy options for the future. Possible options include rendering the existing rules more flexible or strengthening them by adding new requirements. Other options include maintaining the status quo or removing the rules in place for broadcasters and/or on-demand audiovisual media services.
Is the public consultation addressing media freedoms and pluralism?
The Public consultation seeks feedback on the current AVMSD rules regarding:
- audiovisual media services regulators
- accessibility for people who are hard-of-hearing, blind or partially-sighted. Feedback is sought on options for the future, such as further harmonise the rules or rely on self and co-regulation.
- events of major importance for society, such as the Olympic games (part of the right of information of the user)
- short news reports (part of the right of information of the user)
- right of reply in case someone is damaged by an assertion of incorrect facts in a television programme
The public consultation also seeks feedback on issues that at the moment are not dealt with in the AVMSD such the ability to find content of interest to the public.
How does this public consultation link with other initiatives under the Digital Single Market Strategy?
The DSM strategy includes a number of initiatives with potential relevance to AVMSD:
- A reform of the EU regulatory framework for electronic communications via Commission proposals to be presented in 2016 addressing the need to ensure, amongst other things, consumer protection and a level playing field for market operators.
- A copyright reform to ensure better access to digital content via Commission legislative proposals to be adopted before the end of 2015. The initiative aims to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU, including through further harmonisation measures. The proposals will address, amongst other things, the need to ensure cross-border access to legally purchased online services while respecting the value of rights in the audiovisual sector.
- A comprehensive assessment by the Commission of the role of online platforms and of online intermediaries to be launched at the end of 2015.
Commission Vice President for the Digital Single Market Andrus Ansip and Günther H. Oettinger, Commissioner for the Digital Economy & Society work closely together in the implementation of the DSM strategy.
Do converging technologies mean that traditional broadcasting is no longer relevant?
No. On average, people still watch 4 hours of traditional TV (also known as "linear" broadcasting) a day across the EU. But our viewing habits are evolving. Connected devices like PCs, smartphones, tablets and games consoles make it easier to create, distribute, share and view all types of content no matter when or where you are. Converging technologies and changing viewing patterns have pushed broadcasters, technology companies and other players to develop and adapt business models.
What does convergence mean for growth and innovation?
Equipment manufacturers and technology developers can serve a growing market with innovative devices including user-friendly interfaces and accessibility solutions.
Network operators will see increased demand for bandwidth with a positive impact on investments in high-speed networks.
Content creators can find new ways to increase their audience, monetise their works and experiment with creative ways to produce and offer content.
Broadcasters can find more platforms to distribute their content and enhance their interactive offerings.
Find out more on the AVMS Directive.