The new AVMS Directive IES Spring Lecture Series Rethinking European Media and Communications Polices VUB 19/03/08 Peggy Valcke ICRI K.U.Leuven - IBBT
Agenda A closer look at key concepts and interpretation problems relating to: Scope of application audiovisual media service editorial responsibility? programme? Graduated regulation Advertising - Product placement Country of origin 2
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 AVMS And/or audiovisual commercial communication = narrowing down of original Commission proposal 3
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 the purposes of sharing and exchange within communities of interest Also: videoblogs without advertising / banners 4
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 and therefore for the definition of audiovisual media services. Member States may further specify aspects of the definition of editorial responsibility, notably the notion of effective control, when adopting measures to implement this Directive. NOT: YouTube NOT: carriers (recital 19: exclude natural or legal persons who merely transmit programmes for which the editorial responsibility lies with third parties) 5
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 is merely incidental to the service and not its principal purpose; for example: websites that contain audiovisual elements only in an ancillary manner, such as animated graphical elements, short advertising spots or information related to a product or nonaudiovisual 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 gambling services, as well as on-line games and search engines. electronic versions of newspapers and magazines (recital 21) 6
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. that they compete for the same audience as television broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive. Hence: NOT radio, NOT blogs with (mainly) text and/or pictures Recital 22: NOT stand-alone text-based services (contrary to textbased content which accompanies programmes, such as subtitling services and electronic programme guides) 7
Definition of AVMS: analysis of criteria...in order to inform, entertain or educate: Recital 18: cover mass media in their function to inform, entertain and educate the general public, and include audiovisual commercial communication but exclude any form of private correspondence, such as e-mails sent to a limited number of recipients. Hence: NO webcams of ski resort, traffic... 8
Definition of AVMS: analysis of criteria...to the general public: Recital 16 (and 18): intended for reception by, and which could have a clear impact on, a significant proportion of the general public. Hence: NO promotion spots on internal video circuit of supermarket 9
Let s put the definition to the test! 10
Let s put the definition to the test! 11
Let s put the definition to the test! 12
Let s put the definition to the test! 13
Let s put the definition to the test! 14
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Graduated regulation Audiovisual Media Service: (e) Television broadcasting (linear AVMS): simultaneous viewing of programmes on basis of programme schedule (i.e. provider decides time & schedule) (g) On-demand AVMS (non-linear): viewing of programmes at moment chosen by user at individual request o.b.o. selection by provider (i.e. user decides time & programme) 16
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? 17
Graduated regulation Minimum 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) 18
Graduated regulation Stricter regime for television broadcasting (2 nd 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) 19
Graduated regulation Relaxation 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: readily recognizable, kept quite distinct from other parts of the programme by optical and/or acoustic means ) 20
Product placement WHAT: 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 a programme, 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, light entertainment programmes (NOT: children s programmes) or: no payment (only provision of goods or services free of charge, e.g. production props 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) 21
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 has to comply with rules of that MS, even if its broadcasts are received 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) 22
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 12 months of rules on protection of minors and hate speech (procedure of notification 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 all or most of activity to territory of MS (A) 1 st step: consultation / cooperation procedure non-binding request to broadcaster to comply If: no satisfactory solution 2 nd step: circumvention procedure - MS (B) assesses circumvention unilateral action (but: control & veto power of Commission) 23
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-bycase basis whether a broadcast by a media service provider established in another Member State is wholly or mostly directed towards its territory, may refer to indicators such as the origin of the television advertising and/or subscription revenues, the main language of the service or the existence of programmes or commercial communications targeted specifically at the public in the Member State where they are received. Burden of proof: what is assessing? What is evidence of circumvention? 24
peggy.valcke@law.kuleuven.be ICRI K.U.Leuven - IBBT Sint Michielsstraat 6 3000 Leuven http://www.icri.be http://www.ibbt.be 25