In response to the fast changing audiovisual media landscape, particularly the convergence of traditional, linear TV and content distributed via over-the-top (OTT) services (that is, services distributed via the Internet to smart TVs, mobile devices etc.), the European Commission has proposed revisions to the Audiovisual Media Services Directive (“AVMSD”).
The document detailing the proposed revisions recognises that traditional TV broadcasters and online video on-demand (VoD) providers and video-sharing platforms are subject to differing rules and levels of consumer protection. It calls, as part of Europe’s wider Digital Single Market Strategy, for ‘a modernisation of the [AVMSD] to reflect…market, consumption and technological changes’ since the AVMSD was first introduced. A key objective of the proposal is to achieve a ‘more level playing field between different players in the audiovisual media market.’
Some key takeaways from the proposal document include the following:
The proposals reflect an alignment of consumer protection between TV broadcasters and on-demand services. Whilst recognising that video-sharing platforms, such as YouTube, do not have editorial responsibility in respect of a large proportion of the content on their platforms, the proposed revised AVMSD is intended to complement the e-Commerce Directive by requiring Member States to make sure video-sharing platforms establish suitable measures to protect minors from viewing harmful content (for example, via restricted access to such content), as is already an obligation on TV broadcasters. Video-sharing platforms will also be required to implement measures to protect all their users from content containing incitement to hatred.
Members States must ensure that the providers adopt the above measures through appropriate self- and co-regulatory codes of conduct, reflecting the concepts of protection from harmful content and incitement to hatred in their user terms, introducing the ability to report content and having age verification or parental control systems and other effective mechanisms in place in order to prevent access to harmful content by minors.
Promotion of European works
The proposal document aims to create a ‘more level playing field’ (that buzzphrase again) in the promotion of European works. Currently, TV broadcasters must ensure that, where practicable, a majority of their transmission time is devoted to European programming and at least 10% of their transmission time (or programming budget) is devoted to European independent productions. Under the proposed revisions to the AVMSD, on-demand services will now have to reserve at least 20% of their catalogues for European works and ensure adequate prominence of such works on their services. This is clearly good news for production houses based in the EU, but will be significant for on-demand only platforms, such as Netflix and Amazon Video. Netflix has already commented that the rules would compel the creation of content which viewers are not interested in, and the proposals are likely to be particularly controversial for providers based outside of the EU and/or those whose content (and the prominence of such content on the platform) is driven by data around consumer choice and viewing habits.
Furthermore, Member States may impose obligations on on-demand service providers in their jurisdiction (and, in specific conditions, those established in other Member States but targeting their audiences) to contribute financially to the production of European works, for example via contributions to national film funds.
Commercial communications: advertising and product placement
The proposed revised AVMSD envisages more flexibility for all audiovisual media service providers in terms of product placement and sponsorship and, in respect of TV broadcasters specifically, increased flexibility in terms of advertising.
The European Commission proposes to replace the current regime of hourly limits on broadcast advertising with a daily limit of 20% between 07:00 and 23:00. This change will allows broadcasters to be more flexible and will likely lead to more concentrated or longer advertising breaks during primetime and during other programming aimed at the key audiences of services (and less adverts at other times). Films made for TV will also be able to be interrupted by advertising breaks more frequently (once every 20 minutes as opposed to once every 30 minutes as currently is the case). The proposal also reinforces protections for minors in respect of exposure to advertisements for foods high in fat, sugar and salt and for alcohol.
The proposed revised AVMSD also states that product placement should be allowed in all audiovisual media services, subject to exceptions (as currently) such as news and current affairs programmes, religious programmes, consumer affairs programmes and programmes aimed at children. The requirements for programmes containing product placement will shift away from ensuring the product is not given undue prominence (which is anyway difficult to apply in practice) and focus more on the obligations to clearly inform the audience that product placement exists in a programme (i.e. at the beginning and end of the programme and when the programme resumes after each advertising break) and ensuring the service provider’s editorial independence is unaffected by the inclusion of products on a paid-for basis. Broadcasters and on-demand service providers will therefore have greater flexibility to use product placement (whilst keeping viewers informed of the presence of such placement in programmes).
Each Member State must designate one or more independent national regulatory authorities and ensure those bodies have adequate enforcement powers and exercise their powers impartially and transparently. The proposal also establishes the European Regulators Group for Audiovisual Media Services (ERGA) which will comprise all of the national audiovisual regulators. The role of ERGA will be to advise the Commission on consistent implementation of the regulatory framework for audiovisual media services and to further advise and assist the Commission on audiovisual media issues.
Country of origin principle
The proposal also looks to reinforce and improve the country of origin principle by simplifying rules around determining jurisdiction, particularly in respect of video-sharing platform providers.