The Proposed Novel Audiovisual Media Services Directive: Primal Features
November 23, 2018
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Lorna Woods, Professor of Media Law, University of Essex
After a draft was leaked terminal week, the Commission proposal to revise the Audiovisual Media Services Directive (AVMSD) is at in 1 trial out. Once in 1 trial again nosotros reckon the Commission proposing the roll-out rather than the roll-back of regulation inward the human face upward of sector change. The next provides an overview of about of the issues.
The starting fourth dimension alter is an extension of cloth scope. The Commission explains inward its Memo/16/1895 that a ‘limited extension’ volition occur equally the novel proposal applies to ‘video-sharing platforms’, such equally YouTube. “Video-sharing platform services” are defined inward novel Article 1(aa) AVMSD (Art. 1(1)(b) of the proposal):
‘… a service, equally defined past times Articles 56 together with 57 of the Treaty on the Functioning of the European Union, which meets the next requirements:
(i) the service consists of the storage of a large amount of programmes or user-generated videos, for which the video-sharing platform does non take maintain editorial responsibility;
(ii) the organisation of the stored content is determined past times the provider of the service including past times automatic agency or algorithms, inward item past times hosting, displaying, tagging together with sequencing;
(iii) the principal purpose of the service or a dissociable department thereof is devoted to providing programmes together with user-generated videos to the full general populace inward guild to inform, entertain or educate;
(iv) the service is made available past times electronic communications networks inside the important of indicate (a) of Article 2 of Directive 2002/21/EC.’
The phraseology together with organisation hither is unlike from the leaked draft. It makes clear the cumulative nature of the weather condition but also clarifies that the organisational features of the video-sharing platforms identified are illustrative non an exclusive list. It is also starting to engage amongst the issues surrounding editorial selection inward an surround where ‘suggestions’ are made past times programming – next large information profiling or exactly paid prominence. Moreover, the proposal integrates the indicate that such platforms tin gain notice live on caught if a ‘dissociable segment’ satisfies the definition, whereas the leaked version had a separate subclause (a ter) that applied a principal purpose examination non exactly to video-sharing platforms but services defined inward (1)(a)(i).
No incertitude at that spot volition live on much comment on the workability of this Definition – non to the lowest degree where it draws the boundaries. Will at that spot live on departure inward handling betwixt Instagram, Flickr together with other photo-sharing sites, Twitter together with Facebook (both of which take maintain video capability, or link to videos) together with Youtube, Vine together with Vimeo; together with are these sites similar to Dailymotion together with maker.tv? For now, banker's complaint the centrality of the concepts of ‘programme’, which past times contrast to the leaked draft, gets a novel Definition (in Article 1(1)(b) AVMSD, replaced past times Art. 1(1)(c) proposal), together with ‘user-generated video’ (added to the AVMSD equally (1)(ba)). This latter Definition covers cloth created past times end-users, but also cloth that such users may live on re-using past times uploading. This agency the (unlawful) uploading of professional person falls inside the definition, but also cloth the creators of which are unknown.
The Definition of programme does non apply exactly to video-sharing platform services, but is a fundamental chemical constituent inward determining the reach of the AVMSD. So, Rec. (3) (which was Rec xi inward the leaked draft) specifies that the AVMSD ‘should rest applicable exclusively to those services the principal purpose of which is the provision of programmes to inform, entertain or educate’. The purposes hither are together with so broad that they tin gain notice exclude nothing; the determinative chemical constituent is thus the programme. This number was the dependent area of litigation inward the context of a press site which contained curt video clips inward New Media Online GmbH v. Bundeskommunikationssenat (Case C-347/14), inward which the ECJ ruled that videos nether a subdomain of a paper website could autumn nether the Definition of a ‘programme’ inside the AVMSD (an approach from which OFCOM has arguably differed inward honor of its interpretation of the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland implementing regulations). This seat is reflected inward Rec. 3, which notes that stand upward lonely parts of paper sites tin gain notice autumn inside AVMSD equally tin gain notice channels inside video-sharing platforms. Radio remains exterior the AVMSD.
Under the electrical current AVMSD,
(b) ‘programme’ means a set of moving images with or without sound constituting an individual item within a schedule or a catalogue established by a media service provider and the form and content of which are comparable to the form and content of television broadcasting. Examples of programmes include feature-length films, sports events, situation comedies, documentaries, children’s programmes and original drama;
The proposal removes the phrase ‘and the shape together with content of which are comparable to the shape together with content of idiot box broadcasting’ suggesting a displace away from traditional idiot box equally the benchmark together with towards a to a greater extent than opened upward together with arguably broader innovation of exactly ‘an private item’.
Rec 12 of the leaked draft is at in 1 trial found at Rec 26 together with 27, slightly amended together with so equally non to live on limited to ‘video sharing’ platforms, though these are seen to enhance item issues. Rec. xiii of leaked draft is at in 1 trial at Rec. 28 inward a slightly amended form. This alter reflects the fact that the recitals refer to content restrictions rather than to scope, though Rec 28 contains the implicit acknowledgment that the proposal takes the possibility of regulation beyond those amongst editorial responsibleness (even that at a rattling blunt bird of selection – equally inward OTT services). The Explanatory Memorandum skirts this issue, recognising that at that spot volition live on a indicate of interplay amongst Articles xiv together with xv of the e-Commerce Directive (ECD). Those provisions render immunity from damages for hosts amongst no cognition of problematic content together with prohibit the imposition of monitoring requirements (see also Rec. 30). The proposal also recognises the request to include those services providers that are non established inside the European Union but are component of a grouping together with so equally to ensure effectiveness of protection (Art. 28b). In this context, nosotros mightiness live on reminded of the reasoning of the Court inward determining jurisdiction nether the Data Protection Directive inward Google Spain: legal shape was non determinative of this question, but instead the line of piece of work organisation reality. OFCOM inward its reply to the Commission’s consultation terminal twelvemonth expressed concern almost rules that would live on ‘disproportionate together with impractical’. These provisions request also to live on understood almost the on-going merchandise negotiations amongst tertiary countries, such equally TTIP, which may impact their feasibility.
One of the master copy concerns amongst regard to video-sharing platforms is abhor spoken language the agreement of which – inward relation to all regulated platforms - ‘should, to an appropriate extent’ live on aligned to Framework Decision 2008/913/JHA (concerning criminal expressions of racial hatred), specifically equally regards the grounds on which hatred may live on incited (Rec. 8). What this agency inward practice, given the qualifiers used, equally good equally the human relationship amongst the ECD inward honor of video-sharing platforms, is uncertain (see Art. 28a(5)). New Art. half dozen AVMSD exactly imposes on Member U.S. the obligation to work ‘appropriate means’, the important of which is elaborated inward Art. 28a. That provision points to a balancing of competing interests, which may allow for a sure grade of subjectivity together with variation across Member States. Art. 6a deals specifically amongst the protection of minors from a wider gain of content – that probable to impair physical mental or moral development. This envisages the request to gain information to viewers together with so that they may build appropriate choices of viewing, rather than the imposition of technical measures.
Another contentious number has related to the province of rootage (COO) principle, specifically where AVMS providers engage inward forum shopping together with ‘broadcast back’ to the ‘original’ target country. This has ever been problematic, amongst a trunk of jurisprudence on abuse of rights leading to specific exception provisions inward the AVMSD. The thought of COO, however, has ever been pop amongst manufacture players equally it avoids re-versioning costs together with other costs associated amongst separate markets. Whatever the sentiment on COO, the anti-abuse provisions inward AVMSD were complex together with the number of institution opened upward to interpretation. The regulation of liberty of re-transmission is restated but the possibility of derogating is extended to all audiovisual media services, non exactly broadcasting equally is currently the representative (see proposed Art. 3(2) – banker's complaint differences inward physical care for betwixt linear together with non-linear services apply). The grounds are those laid out inward Art 6, which contains an extended category of grounds of abhor spoken language prohibited, together with novel Art. 12 which contains the ‘pornography provision’: transmission of relevant cloth is permitted, but inward a way together with so that minors cannot access the material. This applies to all AVMS providers. The electrical current broadcasting-only, protection of minors provisions (Art. 27 AVMSD), which currently human activity equally triggers for the Art. iii procedure, volition live on deleted.
While the AVMSD was a minimum harmonisation directive, recognised past times Art. 4(1) AVMSD which allowed Member U.S. to impose higher standards inward honor of all fields coordinated past times the directive, the proposal is at in 1 trial to boundary the issues inward honor of which Member U.S. may impose stricter rules to Art. v (information obligations), half dozen (hate speech), 6a (development of minors), ix (standards for commercial communications), 10 (sponsorship), xi (product placement), 12 (protection of minor- technical measures), xiii (on-demand quotas), sixteen (tv European quotas), 17 (tv independent quotas), 19-26 (advertising together with teleshopping rules), thirty (NRA) together with 30a (ERGA). In honor of the other provisions, it seems the AVMSD provides maximum standards. It is notable that this latter category includes the provisions that are specific to video-sharing platforms equally good equally long-standing provisions such equally the tidings reporting provisions.
There has been about ‘alignment’ of rules for linear together with video on need services (e.g. Art. 12). This at an abstract bird makes sense. Commentators suggest that the manufacture tendency is for entertainment, idiot box together with similar companies to focus on making together with assembling content for distribution across the multiplicity of digital platforms available, inward ways appropriate to those platforms but betwixt which at that spot may live on overlap of shape together with content. Certainly, at that spot is inter-platform competition. So these changes are aimed at ensuring the mythical ‘level playing field’.
The provision that has caught about attending when the proposal was leaked was that which imposes a European quota requirement on on need AMS providers: at to the lowest degree 20% of the catalogue has to live on European, together with these industrial plant should live on given prominence (Art. 13(1)). It replaces the electrical current provision which, inward the words of the Commission ‘leaves room for testing unlike approaches’ but which potentially ‘unlevels’ the playing field. Note that at that spot is no ‘so far equally practicable’ phraseology inward this obligation (by contrast amongst the long-standing obligation on broadcasters), although fellow member U.S. may waive obligations inward relation to little together with micro enterprises (Art. 13(5)). The obligation of ‘prominence’ is also non qualified (contrast the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland rules regarding ‘due prominence’ of PSB). Presumably it is intended at address the point made by the Society of Audiovisual Authors that currently on Netflix ‘where you lot take maintain to await for European industrial plant (or fifty-fifty national works) nether the rubric “Foreign Films”’ – non necessarily the most enticing branding.
The electrical current TV quotas rules take maintain non addressed the job of scheduling undermining the effectiveness of the quotas, a indicate noted inward the reply to the Commission’s consultation. The Definition of “European” has been left unchanged – equally take maintain the tv quotas. This proposal volition no incertitude delight the European Union cinema industry, though it is probable to live on less pop amongst the distribution sectors, which are already warning almost strangling a soundless non mature industry. Against this background it is noteworthy that Netflix has produced a serial inward Europe (Marseille – peradventure to larn a stronger foothold inward the French linguistic communication market) together with is almost to launch a second, equally good equally engaging amongst local broadcasters (e.g. “Kiss Me First” amongst Channel 4; “Suburra” amongst RAI).
The proposal also introduces a requirement for Member U.S. to gear upward legally distinct together with functionally independent regulators, inward many aspects next the Recommendation of the Council of Europe (Rec (2000) 23). While the desirability of independent regulators is recognised inward most Member U.S. equally a way of safeguarding liberty of aspect spell achieving other societal together with political goals, at that spot is no such obligation inward the electrical current AVMSD framework. The request to innovate such a requirement may live on a reply to developments inward about of the Member U.S. where at that spot take maintain been changes to the regulatory architecture inward honor of the media amongst consequent concerns almost media independence. It farther specifies amongst a non-exhaustive listing the remit on such regulators: media pluralism, cultural diversity, consumer protection, internal marketplace seat together with the advertisement of fair competition. These roles must live on established inward police together with deport amongst them enforcement powers. Influenza A virus subtype H5N1 correct of appeal for viewers/end-users must live on provided. Significantly, this requirement applies across all AVMS providers, including video-sharing platforms.
The proposal also formalises the European Regulators Group for Audiovisual Media Services (ERGA) (which was established on the ground of a Commission Decision inward 2014), inward reply to a perceived request for greater senior bird cooperation inward European audiovisual policy developments. The reply to the grouping has been mixed, about questioning whether it adds anything to the existing groups, such equally the Contact Committee together with the European Platform of Regulatory Authorities (EPRA) which exists exterior the European Union framework. Alternatively, given the proposed expansion of the AVMSD together with the uncharted territory awaiting the regulators, a machinery for coordination may live on of import for the functioning of the COO principle. ERGA has already produced reports for the Commission on independence; on the protection of minors inward a converged environment; together with on cloth jurisdiction equally component of the training for the review of the AVMSD.
Historically, the broadcasting together with at in 1 trial the audiovisual sector has revealed deep divides betwixt fellow member states together with also betwixt diverse sectors of industry. The Commission has no incertitude attempted to make a ease of interests later on an extensive review process. What volition rest in 1 trial the Council together with the European Parliament start to await at this, particularly later on what is probable to live on intensive lobbying, is anybody's guess. It may fifty-fifty live on affected past times Brexit; spell the directive should live on agreed earlier whatsoever United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland exit, sure enough the UK’s negotiating seat would live on weakened betwixt whatsoever ‘no’ vote together with actual exit, shifting the ease betwixt the costless marketplace seat together with dirigiste Member States.
Barnard together with Peers: chapter 14
Photo credit: Theon Greyjoy