EU Media Policy - MS Directive: Quo Vadis?

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EU Media Policy
AVMS Directive: Quo Vadis?
Prof. Dr. Peggy Valcke
Professor in Law - KU Leuven (iMinds-ICRI)
European University Institute, CMPF & FSR
Centre for Media Pluralism and Media Freedom
Summer School for Journalists and Media Practitioners
2 June 2014
INTRODUCTION
EU MEDIA POLICY

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EU MEDIA POLICY
EU MEDIA POLICY
• Internal market (!)
• Economic policy
• Cultural policy

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EU MEDIA POLICY
Internal market
– Since 70-ies, European Court of Justice applies
rules on economic freedoms in EC/EU Treaty to
TV and other media services (incl. advertising)
– Harmonisation directive:
ensuring minimum standards
for all TV services which can
be offered throughout EU
(‘between culture & commerce’)
EU MEDIA POLICY
Economic policy
– Fair and free competition:
application of competition rules in media
sector (sports media rights / media mergers /
state aid and public service broadcasters)
– ‘
– Ensuring ‘level playing field’ (e.g. between
traditional and new, on-demand video services)

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EU MEDIA POLICY
Cultural policy
– Media subsidies
– Media literacy
– Cultural heritage
CHALLENGES FOR
EU MEDIA POLICY

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CHALLENGES FOR EU MEDIA POLICY
Audiovisual content
on new platforms
Convergence TV
& print media
Convergence TV & Internet‘TV’ on the Internet Internet on your TV

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Convergence TV & social media…
Source: F. Sciacchitano - AGCOM (Vilnius, 2013)

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Source: F. Sciacchitano - AGCOM (Vilnius, 2013)
KEY QUESTION
Which rules apply to such
new media services?

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OVERVIEW OF RELEVANT LEGAL
FRAMEWORKS
ICT
IPR Privacy
Transmission:
(Tel)e-coms
TV content:
AVMS
Internet
services: E-
Commerce
OVERVIEW OF RELEVANT LEGAL
FRAMEWORKS
A. Audiovisual Media Services Directive
• Linear and non-linear media services directed to the general public
• Origin: MEDIA law (radio broadcast, television, ...) - °1989
• http://ec.europa.eu/avpolicy/reg/index_en.htm
B. Electronic Communications Directives
• Electronic communications networks and services
• Origin: TELECOMMUNICATIONS law (telephony, data transport...) -°1988
• http://ec.europa.eu/information_society/policy/ecomm/eu-
rules/index_en.htm
C. Information Society Services Directive (E-Commerce)
• Interactive electronic services
• Origin: INTERNET (commercial websites, ...) - °2000
• http://ec.europa.eu/internal_market/e-commerce/directive_en.htm
D. Data Protection Legislation (Directive 95/46/EC – under revision)
E. Intellectual Property Legislation (Directives on copyright (enforcement),
software protection, database protection…)

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KEY QUESTION
Do traditional rules for TV
services / providers apply to
such new media services?
(= Do they fall within scope of
AVMS Directive?)
Directive 2010/13/EU of 10 March 2010 on the coordina-
tion of certain provisions laid down by law, regulation or
administrative action in Member States concerning the
provision of audiovisual media services (codifies Directive
89/552/EC of 3 October 1989, amended by Directive 97/36/EC of 30 June
1997 and Directive 2007/65/EC of 11 December 2007)
= The directive formerly known as “Television without Frontiers”
(TVWF) ** !! http://ec.europa.eu/avpolicy/reg/tvwf/index_en.htm !! **
 Objectives
• Free movement of broadcasting / audiovisual media services within the
internal market: HOME COUNTRY CONTROL;
• Preservation of certain public interest objectives (incitement to hatred,
accessibility for people with disabilities, access to major events, protection
of minors, consumer protection);
• Promotion of the distribution and production of European audiovisual
programmes
 Minimum harmonisation!
“Traditional rules”: WHERE?

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“Traditional rules”: WHAT?
• Identification of media service provider
• Prohibition of incitement to hatred in programmes
• Protection of minors: content harmful to minors
cannot be included or only under specific conditions
• Promotion and distribution of European works
• Access to major events on TV; short news reporting
• Commercial communications: rules for
sponsoring, advertising, product placement…
• Accessibility for people with disabilities
→ monitored and sanctioned by media authorities
AVMS Directive: History

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From TVWF to AVMS: Key Issues
Cf. Infra
Rationale:
From TVWF to AVMS: Key Issues (ctd.)
• Graduated regulation: example protection of minors

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AVMS Directive: Basics
“Home country control”
e.g. advertising, sponsorship, product placement…
AVMS Directive: Scope
• DOES AMVSD COVER NEW MEDIA SERVICES?
AVMSD covers audiovisual services that comply with the definition
in Art. 1(a), irrespective of the platform used to deliver the service
(terrestrial, CATV, satellite, IPTV, Internet, tablets, mobile
phones…)
(and that are transmitted by a media service provider under the
jurisdiction of a Member State, read: who is established in a
Member State – except for derogations).

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“Audiovisal media service”: 7 cumulative criteria
1. Service as defined by Art. 56-57 TFEU
2. Under editorial responsibility of a media service provider
3. The principle purpose of which is
4. The provision of programmes
5. In order to inform, entertain or educate
6. To the general public
7. Via electronic communications networks
 Either television broadcast :
provision of programmes at a scheduled
time and watched simultaneously by
viewers (push service)
 or on-demand AVMS (“ODS” or “ODPS”):
programmes users select from a
catalogue offered by the media service
provider, to watch at their own
convenience (pull service)
 (+ Audiovisual commercial communication)

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Scope - Analysis: 1) ‘economic service’
“Audiovisual media service”: 7 cumulative criteria
• Service as defined by Art. 56-57 TFEU
Economic services (= normally provided for remuneration)
Cf. Recital 21:
Scope – Analysis EU: 1) ‘economic service’
NOT COVERED
User-generated content; Non-commercial purpose

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Scope - Analysis: 2) ‘editorial responsibility’
• Under editorial responsibility of a media service provider
exercise of effective control over selection of programmes
& organisation in chronological schedule (linear) or
catalogue (on-demand)
= in principle prior control
BUT: exclusively prior, or also some form of ‘reactive’
editorial control (i.e. taking down from website programmes
not in conformity with provider’s terms of use)?
Scope - Analysis: 2) ‘editorial responsibility’
NOT COVERED
A posteriori control

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Scope - Analysis: 3) ‘principal purpose’
• A service […] and
the principal purpose
of which is (the
provision of
programmes…)
Scope – Analysis EU: 3) ‘principal purpose’
NOT COVERED
Video content is
only ancillary

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Scope - Analysis: 4) ‘programmes’
• The provision of programmes
Moving images with or without sound constituting
individual item in a schedule or catalogue
Scope – Analysis EU: 4) ‘programmes’
NOT COVERED
Radio
Text
Cf. recital 28: “The scope of this Directive
should not cover electronic versions of
newspapers and magazines.”

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Scope - Analysis: 4) ‘programmes’
• The provision of programmes
Moving images with or without sound constituting
individual item in a schedule or catalogue
Recital 24: to be interpreted in a dynamic way
 On-demand AVMS: ‘television-like’
• they compete for the same audience as television
broadcasts,
• the same means of access as television broadcasts
• the user can reasonably expect regulatory
protection within the scope of the AVMS Directive
Scope - Analysis: 5) ‘inform, entertain or
educate’
• In order to inform, entertain or educate
Impact on the way people form their opinions
NOT COVERED
Webcams (merely registering)

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Scope – Analysis EU: 6) ‘general public’
• To the general public
 Mass media character
NOT COVERED
Narrowcasting
Private correspondance .
Scope - Analysis: 5) & 6)

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Scope - Analysis: 7) ‘electronic
communications networks’
• By electronic communications networks
Technology-neutral approach
• Terrestrial
• Satellite
• Cable
• ADSL
• Mobile
• Etc
Scope – Analysis EU: 7) ‘electronic
communications networks’
NOT COVERED
Video shop Cinema
From flat rate …to online video
DVD-by-mail… distribution

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Now some practice!
COVERED?
Now some practice!
COVERED?

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Now some practice!
COVERED?

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Now some practice!
COVERED?
Now some practice!
COVERED?

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AVMS Directive: Scope - Analysis
National Case studies:
How do Member States
interpret the criteria?
National guidance documents
(Emerging) decision practice
AVMS Directive: Scope - Analysis
N.B. Relevance of qualification
as AVMS?
→Notification (mostly) or authorisation (exceptionally)
→Fee (only limited n° of MS; e.g. Italy: €500)
→Compliance with rules on:
 information requirement; release windows; accessibility for
people with visual or hearing disability
 protection of minors: rating systems, access control mechanisms (age
verification, PIN…), watersheds, separate catalogues for adult/children programmes
 incitement to hatred (based on race, sex, religion, nationality)
 promotion of European works: general obligation to promote (e.g.
prominence) – investment obligations - quotas
 commercial communications: recognisable, not damaging to human dignity
or health, no discrimination, not for cigarettes or medicines on prescription, limitations
on ads for alcohol, special rules to protect minors… - rules on sponsorship and PP
→Monitoring/enforcement by media authority

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Notion of ‘principal purpose’
• What if video is part of broader consumer
offering…?
Such as:
football club’s fansite, lifestyle magazine, online
newspaper / news service…
• Sun TV case (UK) (Convergence print-audiovisual)
 Publishers argue they are not ODPS because:
─ AVMS recital 28: “should not cover electronic versions of newspapers and magazines”
─ Video library is integral and ancillary parts of the newspaper/magazine
web offerings; i.e. ‘principal purpose’ is not provision of video
─ Video library does not offer TV-like material; AV items are more like
YouTube (not ‘programmes’ in sense of AVMS)
 ATVOD ruled:
─ Single website or domain may contain more than one service; video
library is service in its own right
─ Comparable to form and content of programmes normally included in TV
─ Principal purpose of video library is to provide these TV-like programmes
 Ofcom overruled ATVOD Determination
─ ATVOD failed to consider the Sun’s website as a whole

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• “Principal Purpose”: Sun TV case (UK)
CRITERIA put forward by Ofcom in Sun Video appeal (cf. Everton
Football Club TV decision, 26.06.2013):
a) “homepage” through which audiovisual material is accessed;
b) cataloguing and accessing of the material;
c) presentation and/or styling of the material;
d) duration, completeness and independence of the material;
e) access links between the relevant audiovisual material and
other content;
f) content links between the relevant audiovisual material and
other content;
g) balance and nature of the audiovisual and other material; and
h) whether, on overall assessment, audiovisual material could be
said to be integrated into, and ancillary to, another service.

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• N.B. Swedish Broadcasting Commission (SBC) decided on
29.10.2012 that video sections on newspaper websites were
to be considered as audiovisual media services under the
Swedish Radio and Television Act (Helsingborgs Dagblad,
Aftonbladet, Dagens Nyheter and Norran):
– part of the video programmes on the concerned newspapers’ websites
was not insignificant compared to other content;
– video sections were separate services in relation to the other content
on the websites;
– programmes were available to the general public where users could
choose the time when to watch the programme;
– programmes were organized in catalogues such as “Sports” and
“News”.
=> Hence, SBC ruled that the video sections on the newspapers’
websites qualified as on-demand TV and were covered by the Swedish
Radio and Television Act.
Notion of ‘programmes’ (‘TV-like’)
 Demand Adult and Climax 3 (UK)
 Playboy argued:
─ VOD services consisted of explicit works of sexual
material prohibited on linear TV services
─ Hence: no ODPS because content not
‘normally included in TV programme services’
 ATVOD disagreed because (24.09.2010):
─ Law requires content of ODPS to be ‘comparable’,
not ‘identical’, to TV programmes
─ Content comparable to ‘soft’ pornography which can
be broadcast on UK linear channels with restrictions
 Ofcom upheld ATVOD Determination (13.05.2011)
 Ofcom imposed fine of 100,000£ for failing to provide
effective systems to protect children (16.1.2013)

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• “TV-like character”: Top Gear YouTube (UK)
 BBC argues it is not ODPS because not ‘TV-like’:
─ Only short clips, not comparable to programmes normally included in television
programme services (duration = key characteristic)
─ Clips often viewed on the move or during quick breaks in the working day (<-> TV
programmes viewed at home, in comfort on the sofa - longer duration).
─ YouTube channel is not in competition with television for viewers (unlike services
such as 4OD and Demand Five which include full length programming).
 ATVOD ruled (03.05.2011):
─ Short programming may form only small part of TV schedule (as does longer
programming eg. over two hours) but is nonetheless ‘normally included’ (nearly 1
in every 30 programmes on 5 main channels).
─ Looking at particular form & content of programmes on Top Gear YouTube, these
resemble linear TV programmes.
 Ofcom overruled (18.01.2013)
• “form and content of audiovisual material on the Service, provision of which is its
principal purpose, is not comparable to the form and content of linear TV”
• “TV like”: BBC Top Gear You Tube (UK)(cf. BBC Food You Tube case)

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• Cf. Everton Football Club TV appeal decision, 26.06.2013:
Scope: Major Borderline Cases
• Services on UGC platforms
– Distinction between content created by users
& professional content offered on UGC platforms.
• AV services offered by electronic/online versions of
newspapers or magazines (blurring boundaries AVMS – newspapers)
– Sports newspapers online
versus sports channels websites
− Newspapers online
versus all news portals/news channels websites
− Fashion magazines online
versus fashion videos online
− Cooking magazines online
versus cooking videos online
− Aggregator sites

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 E-Commerce Directive 2000/31/EC :
“any service normally provided for remuneration, at a distance, by
electronic means and at the individual request of a recipient of services”
• Harmonises rules on:
– jurisdiction (establishment of service providers)
– commercial communications
– electronic contracts
– liability of intermediaries (mere conduit, caching, hosting)
– codes of conduct
– out-of-court dispute settlements, court actions and cooperation
between Member States
– BUT: no “media content regulation” (N.B. general laws at Member
State level - e.g. rules on obscenity, defamation, anti-discrimination
and hate speech rules… - may still apply)
What if services do not fall under
AVMS Directive?
• Certain on-demand AVMS also qualify as “information society
services” in the sense of the “E-Commerce Directive”.
• See Art. 4(8), Rec. 17 & 25 AVMSD (“lex specialis”).
What if services fall under both
directives?

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Concluding remarks
• “The identification criteria that were easy to apply in the
traditional media world are now facing a moment of
crisis” (R. Viola & M. Cappello, AGCOM, IRIS Special, p.51)
• “Media Regulation 2020”: which services?
☼ Technology-neutrality
– …or user perception? (‘regulation in context’; cf. M. Ariño)
☼ Mediatypes (TV, internet, newspapers, magazines, radio…)
– …or functions? (information, entertainment, education…)
☼ Editorial responsibility:
– …from selection to search & navigation? ‘Automated journalism’
– …from ex ante to ex post?
• EC launched public consultation: Green Paper ‘Preparing
for a Fully Converged Audiovisual World’ (24 April 2013);
http://ec.europa.eu/digital-agenda/en/connectedTV
References & Reading
• Website of the European Commission on the AVMS Directive :
http://ec.europa.eu/avpolicy/reg/tvwf/index_en.htm (European Commission First
Report on the application of Directive 2010/13/EU “AVMS Directive”, May 2012,
COM(2012) 203 final)
• National Transpositions of AVMS Directive - Project of Prof. Mark Cole, Université
de Luxembourg:
http://wwwen.uni.lu/research/fdef/media_law/audiovisual_media_services_directive/
project_description
• Website of the European Platform of Regulatory Authorities:
http://www.epra.org/content/english/index2.html
• IRIS special, The Regulation of On-demand Audiovisual Services: Chaos or
Coherence?, Council of Europe/European Audiovisual Observatory, 2011, 100 p.
• Emmanuelle Machet, “Content Regulation and new Media: Exploring Regulatory
Boundaries between Traditional and new Media”, Background document Plenary
session 33rd EPRA meeting, Ohrid, 26-27 May 2011,
http://www.epra.org/content/english/press/papers/Ohrid/paper_session1_final_revis
ed.pdf.

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References & Reading (ctd.)
• R. Craufurd Smith, “Determining Regulatory Competence for Audiovisual Media Services in
the European Union”, Journal of Media Law (2011) 3(2) 263-285
• M. Ariño, “Content Regulation and New Media: A Case Study of Online Video Portals”,
Communications & Strategies (2007), n° 66, 115-135
• Ofcom, Protecting audiences in the era of convergence and Connected TV: Ofcom Research,
Deliberative Research Report (+ Appendices), 25 Jan. 2012,
http://stakeholders.ofcom.org.uk/market-data-research/tv-research/protecting-
audiences/?utm_source=updates&utm_medium=email&utm_campaign=protecting-audiences
• Commissariaat voor de Media, Policy guidelines for commercial on-demand media services
2011 - Beleidsregels classificatie commerciële mediadiensten op aanvraag 2011,
http://www.cvdm.nl/content.jsp?objectid=CVDM:12335 (English version in preparation)
• AGCOM, Web-radio and Web-TV: F.A.Q.,
http://www.agcom.it/default.aspx?message=contenuto&DCId=495
• P. VALCKE & J. AUSLOOS (2013). “Audiovisual Media Services 3.0: (Re)Defining the Scope of
European Broadcasting Law in a Converging and Connected Media Environment.” In: K.
DONDERS, C. PAUWELS & J. LOISEN, the Palgrave Handbook on European Media Policy,
Palgrave
• P. VALCKE & J. AUSLOOS (2013). “What If Television Becomes Just an App?' Re-
Conceptualising the Legal Notion of Audiovisual Media Service in the Light of Media
Convergence” ICRI Research Paper 17,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2375666
Thank you for your attention
Peggy Valcke
[peggy.valcke@law.kuleuven.be]
http://www.law.kuleuven.be/icri – http://www.iminds.be
http://www.law.kuleuven.be/icri/masterict/
LL.M. / Advanced Master

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