The newAVMS

DirectiveIES Spring Lecture Series

Rethinking European Media and CommunicationsPolices

VUB 19/03/08

Peggy ValckeICRI K.U.Leuven - IBBT

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Agenda

A closer look at key concepts and interpretationproblems relating to:

Scope of application audiovisual media service

editorial responsibility? programme?

Graduated regulationAdvertising - Product placementCountry of origin

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Scope of application

Definition of AVMS - see Art. 1 (a) “Audiovisual media service”

Service as defined by the treaty (Art. 49-50) Under editorial responsibility of a media service provider 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 Either television broadcast or on-demand AVMSAnd/or audiovisual commercial communication

= narrowing down of original Commission proposal

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Scope of application

Definition of AVMS: analysis of criteria Service as defined by the treaty (Art. 49-50): service

normally provided for remuneration Recital 16: any form of economic activity, including that of public

service enterprises... ...not activities which are primarily non-economic and which are

not in competition with television broadcasting, such as private websites services consisting of the provision or distribution of

audiovisual content generated by private users for thepurposes of sharing and exchange within communities ofinterest

Also: videoblogs without advertising / banners

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Scope of application

Definition of AVMS: analysis of criteria “Editorial responsibility”: exercise of effective control

both over selection and organisation (≠ legal liability) Art. 1, (c) + Recital 23: The notion of editorial responsibility is

essential for defining the role of the media service provider andtherefore for the definition of audiovisual media services. MemberStates may further specify aspects of the definition of editorialresponsibility, notably the notion of ‘effective control’, whenadopting measures to implement this Directive. NOT: YouTube NOT: ‘carriers’ (recital 19: exclude natural or legal persons

who merely transmit programmes for which the editorialresponsibility lies with third parties)

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Scope of application

Definition of AVMS: analysis of criteria The principal purpose of which [is the provision of programmes]: Recital 18: exclude all services whose principal purpose is not the

provision of programmes, i.e. where any audiovisual content ismerely incidental to the service and not its principal purpose; forexample: websites that contain audiovisual elements only in an ancillary

manner, such as animated graphical elements, shortadvertising spots or information related to a product or non-audiovisual service.

E.g. website of travel agent, car manufacturer... games of chance involving a stake representing a sum of

money, including lotteries, betting and other forms of gamblingservices, as well as on-line games and search engines.

electronic versions of newspapers and magazines (recital 21)

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Scope of application

Definition of AVMS: analysis of criteria ...is the provision of “programmes”: moving images with or

without sound constituting individual item in schedule or catalogue,whose form and content is comparable to TV broadcasting (‘TV like’) Art. 1 (b) + Recital 17: It is characteristic of on-demand

audiovisual media services that they are ‘television-like’, i.e. thatthey compete for the same audience as television broadcasts, andthe nature and the means of access to the service would lead theuser reasonably to expect regulatory protection within the scopeof this Directive.

Hence: NOT radio, NOT blogs with (mainly) text and/or pictures Recital 22: NOT stand-alone text-based services (contrary to text-

based content which accompanies programmes, such assubtitling services and electronic programme guides)

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Scope of application

Definition of AVMS: analysis of criteria ...in order to inform, entertain or educate:

Recital 18: cover mass media in their function toinform, entertain and educate the general public, andinclude audiovisual commercial communication butexclude any form of private correspondence, such ase-mails sent to a limited number of recipients.

Hence: NO webcams of ski resort, traffic...

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Scope of application

Definition of AVMS: analysis of criteria ...to the general public:

Recital 16 (and 18): intended for reception by, andwhich could have a clear impact on, a significantproportion of the general public.

Hence: NO promotion spots on internal video circuit ofsupermarket

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Scope of application

Let’s put the definition to the test!

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Scope of application

Let’s put the definition to the test!

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Scope of application

Let’s put the definition to the test!

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Scope of application

Let’s put the definition to the test!

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Scope of application

Let’s put the definition to the test!

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Scope of application

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Graduated regulation

Audiovisual Media Service: (e) “Television broadcasting” (linear AVMS):

simultaneous viewing of programmes on basis ofprogramme schedule (i.e. provider decides time &schedule)

(g) “On-demand AVMS” (non-linear): viewing ofprogrammes at moment chosen by user at individualrequest o.b.o. selection by provider (i.e. user decidestime & programme)

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Graduated regulation

Audiovisual Media Service: (e) “Television broadcasting” (linear AVMS)

heavier set of rules (extended layer) (g) “On-demand AVMS” (non-linear)

lighter set of rules (basic layer) “Two-tiered Approach” or “graduated regulation”WHY: Reasons for differentiation

Degree of choice and control of users Impact on society ?

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Graduated regulationMinimum rules for ALL audiovisual media services (Basic

Tier) Information obligation/identification of responsible editor (Art. 3a) Prohibition of incitement to hatred based on sex, racial or ethnic

origin, religion or belief, disability, age or sexual orientation (Art.3b)

does not require prior control; cf. rec. 33!

Ensure access for disabled people (‘encourage’) (Art. 3c) Respect copyright (Art. 3d) Basic qualitative requirements for audiovisual commercial

communications (Art. 3e-3g: product placement!)Additional (basic) rules for ON DEMAND services Protection of minors (Art. 3h) Cultural diversity: Promotion of European works (Art. 3i)

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Graduated regulation

Stricter regime for television broadcasting (2nd tier)• Listed events of major importance for society (Art. 3j)

• Short news reports (new Art. 3k)

• Quota for the promotion of European and independent works (Art. 4-5)(N.B. Definition of European works now in Art. 1; Art. 6 deleted)

• Quantitative rules for television advertising (Art. 10-19 revised)

Relaxation (infra)

• Stricter rules for protection of minors (Art. 22)

• Right of reply (Art. 23)

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Graduated regulationRelaxation of (quantitative) advertising rules Rules on duration:

remove some quantitative restrictions (e.g. the daily limit)− relax others (e.g. hourly limit: 15 -> 20%)

• Rules on insertion: relax 20 minute rule news, children’s programmes and feature films: 45 -> 30 minute

rule− sports programmes: even isolated spots (before: only during

intervals)− teleshopping: remove maximum limit of 3 hours

• Interactive advertising, split screen, banners: allowed (Art. 10: “readilyrecognizable”, “kept quite distinct from other parts of the programme by optical and/oracoustic means”)

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Product placementWHAT: “any form of audiovisual commercial communication consisting of the inclusion of or

reference to a product, a service or the trade mark thereof so that it is featured within aprogramme, in return for payment or for similar consideration” (Art. 1 (m))

WHEN: General rule: prohibition Exception: can be allowed…

in certain programmes: cinematographic works, films, series, sports, lightentertainment programmes (NOT: children’s programmes)

or: no payment (only provision of goods or services free of charge, e.g. productionprops or prizes – if of significant value; recital 61)

…under certain conditions: responsibility and editorial independence of MSP is not affected -> ? (recital 63:

‘thematic placement’) not directly encourage purchase or rental of goods or services no ‘undue prominence’ -> ? clearly inform viewer not for tobacco / medicines on prescription

Thin borderline with “surreptitious (misleading) audiovisual commercial communication” (prohibited!) with sponsorship (cf. recital 61)

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Country of origin

The principle country of origin MUST control (Art. 2)

receiving countries can NOT exercise (second)control (Art. 2a)

=> A broadcaster established in a Member State only hasto comply with rules of that MS, even if its broadcasts arereceived in another MS

N.B. Jurisdiction criteria, see Art. 2, al. 3 (establishment:head office and editorial decisions) & 4 (subsidiary criteria:satellite uplink - satellite capacity)

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Country of origin The exceptions:

Derogation for on-demand AVMS: Necessary for reasons of public policy, public health, public security,

protection of consumers – example: Nazi propaganda Serious and grave risk Proportionate measures Coordination with COO without result (except in case of urgency)

Provisional derogation for television broadcast: 2 infringements in 12months of rules on protection of minors and hate speech (procedure ofnotification of broadcaster, COO, Commission)

Cooperation and circumvention procedure: in cases where MS (A)has adopted more detailed or stricter rules in coordinated fields

Television broadcaster under jurisdiction of another MS (B) directs allor most of activity to territory of MS (A)

1st step: consultation / cooperation procedure non-binding request to broadcaster to comply

If: no satisfactory solution 2nd step: circumvention procedure - MS (B) ‘assesses’ circumvention unilateral action (but: control & veto power of Commission)

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Country of origin Questions:

What is ‘directed wholly or mostly towards public in another MS’? Recital 33: A Member State, when assessing on a case-by-

case basis whether a broadcast by a media service providerestablished in another Member State is wholly or mostlydirected towards its territory, may refer to indicators such asthe origin of the television advertising and/or subscriptionrevenues, the main language of the service or the existence ofprogrammes or commercial communications targetedspecifically at the public in the Member State where they arereceived.

Burden of proof: what is ‘assessing’? What is evidence of‘circumvention’?

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peggy.valcke@law.kuleuven.be ICRI K.U.Leuven - IBBT

Sint Michielsstraat 63000 Leuven

http://www.icri.be http://www.ibbt.be