Lorna Woods, Professor of Media
Law, University of Essex
After a draft
was leaked last week, the Commission proposal
to revise the Audiovisual Media Services Directive
(AVMSD) is now out. Once again we see
the Commission proposing the roll-out rather than the roll-back of regulation
in the face of sector change. The
following provides an overview of some of the issues.
The first change is an extension
of material scope. The Commission
explains in its Memo/16/1895
that a ‘limited extension’ will occur as the new proposal applies to ‘video-sharing
platforms’, such as YouTube.
“Video-sharing platform services” are defined in new Article 1(aa) AVMSD
(Art. 1(1)(b) of the proposal):
‘… a service, as defined by
Articles 56 and 57 of the Treaty on the Functioning of the European Union, which
meets the following 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 not have editorial responsibility;
(ii)
the organisation of the stored content is determined
by the provider of the service including by automatic means or algorithms, in
particular by hosting, displaying, tagging and sequencing;
(iii)
the principal purpose of the service or a
dissociable section thereof is devoted to providing programmes and user-generated
videos to the general public in order to inform, entertain or educate;
(iv)
the service is made available by electronic
communications networks within the meaning of point (a) of Article 2 of
Directive 2002/21/EC.’
The phraseology and organisation
here is different from the leaked draft. It makes clear the cumulative nature
of the conditions but also clarifies that the organisational features of the
video-sharing platforms identified are illustrative not an exclusive list. It is also starting to engage with the issues
surrounding editorial choice in an environment where ‘suggestions’ are made by
programming – following big data profiling or just paid prominence. Moreover,
the proposal integrates the point that such platforms can be caught if a
‘dissociable segment’ satisfies the definition, whereas the leaked version had
a separate subclause (a ter) that applied a principal purpose test not just to
video-sharing platforms but services defined in (1)(a)(i).
No doubt there will be much
comment on the workability of this definition – not least where it draws the
boundaries. Will there be difference in treatment between Instagram, Flickr and
other photo-sharing sites, Twitter and Facebook (both of which have video
capability, or link to videos) and Youtube, Vine and Vimeo; and are these sites
similar to Dailymotion and maker.tv? For now, note the centrality of the
concepts of ‘programme’, which by contrast to the leaked draft, gets a new
definition (in Article 1(1)(b) AVMSD, replaced by Art. 1(1)(c) proposal), and
‘user-generated video’ (added to the AVMSD as (1)(ba)). This latter definition
covers material created by end-users, but also material that such users may be
re-using by uploading. This means the (unlawful) uploading of professional
falls within the definition, but also material the creators of which are
unknown.
The definition of programme does
not apply just to video-sharing platform services, but is a central element in
determining the scope of the AVMSD. So,
Rec. (3) (which was Rec 11 in the leaked draft) specifies that the AVMSD
‘should remain applicable only to those services the principal purpose of which
is the provision of programmes to inform, entertain or educate’. The purposes here are so broad that they can
exclude nothing; the determinative element is therefore the programme. This issue was the subject of litigation in
the context of a press site which contained short video clips in New Media Online
GmbH v. Bundeskommunikationssenat
(Case C-347/14), in which the ECJ ruled that videos under a subdomain of a
newspaper website could fall under the definition of a ‘programme’ within the
AVMSD (an approach from which OFCOM has arguably differed in respect of its
interpretation of the UK implementing regulations). This position is reflected in Rec. 3, which
notes that stand alone parts of newspaper sites can fall within AVMSD as can
channels within video-sharing platforms.
Radio remains outside the AVMSD.
Under the 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 form and content of which are comparable to the form and content of
television broadcasting’ suggesting a move away from traditional television as
the benchmark and towards a more open and arguably broader conception of just
‘an individual item’.
Rec 12 of the leaked draft is now
found at Rec 26 and 27, slightly amended so as not to be limited to ‘video
sharing’ platforms, though these are seen to raise particular issues. Rec. 13 of leaked draft is now at Rec. 28 in
a slightly amended form. This change
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 with editorial responsibility
(even that at a very blunt level of choice – as in OTT services). The Explanatory Memorandum skirts this issue,
recognising that there will be a point of interplay with Articles 14 and 15 of
the e-Commerce
Directive (ECD). Those provisions provide immunity from damages for hosts
with no knowledge of problematic content and prohibit the imposition of
monitoring requirements (see also Rec. 30).
The proposal also recognises the need to include those services
providers that are not established within the EU but are part of a group so as
to ensure effectiveness of protection (Art. 28b). In this context, we might be reminded of the
reasoning of the Court in determining jurisdiction under the Data Protection
Directive in Google
Spain: legal form was not determinative of this question, but instead
the business reality. OFCOM in its
response to the Commission’s consultation last year expressed concern about
rules that would be ‘disproportionate and impractical’. These provisions need also to be understood
about the on-going trade negotiations with third countries, such as TTIP, which
may affect their feasibility.
One of the main concerns with
regard to video-sharing platforms is hate speech the understanding of which –
in relation to all regulated platforms - ‘should, to an appropriate extent’ be
aligned to Framework
Decision 2008/913/JHA (concerning criminal expressions of racial hatred),
specifically as regards the grounds on which hatred may be incited (Rec.
8). What this means in practice, given
the qualifiers used, as well as the relationship with the ECD in respect of
video-sharing platforms, is uncertain (see Art. 28a(5)). New Art. 6 AVMSD simply imposes on Member
States the obligation to use ‘appropriate means’, the meaning of which is
elaborated in Art. 28a. That provision points to a balancing of competing
interests, which may allow for a certain degree of subjectivity and variation
across Member States. Art. 6a deals
specifically with the protection of minors from a wider range of content – that
likely to impair physical mental or moral development. This envisages the need to give information
to viewers so that they may make appropriate choices of viewing, rather than
the imposition of technical measures.
Another contentious issue has
related to the country of origin (COO) principle, specifically where AVMS
providers engage in forum shopping and ‘broadcast back’ to the ‘original’
target country. This has always been
problematic, with a body of jurisprudence on abuse of rights leading to
specific exception provisions in the AVMSD.
The idea of COO, however, has always been popular with industry players
as it avoids re-versioning costs and other costs associated with separate markets. Whatever the view on COO, the anti-abuse provisions
in AVMSD were complex and the issue of establishment open to interpretation. The principle of freedom of re-transmission
is restated but the possibility of derogating is extended to all audiovisual
media services, not just broadcasting as is currently the case (see proposed
Art. 3(2) – note differences in procedure between linear and non-linear
services apply). The grounds are those
set out in Art 6, which contains an extended category of grounds of hate speech
prohibited, and new Art. 12 which contains the ‘pornography provision’: transmission
of relevant material is permitted, but in a way so that minors cannot access
the material. This applies to all AVMS
providers. The current broadcasting-only,
protection of minors provisions (Art. 27 AVMSD), which currently act as triggers
for the Art. 3 procedure, will be deleted.
While the AVMSD was a minimum
harmonisation directive, recognised by Art. 4(1) AVMSD which allowed Member
States to impose higher standards in respect of all fields coordinated by the
directive, the proposal is now to limit the issues in respect of which Member
States may impose stricter rules to Art. 5 (information obligations), 6 (hate
speech), 6a (development of minors), 9 (standards for commercial
communications), 10 (sponsorship), 11 (product placement), 12 (protection of
minor- technical measures), 13 (on-demand quotas), 16 (tv European quotas), 17
(tv independent quotas), 19-26 (advertising and teleshopping rules), 30 (NRA)
and 30a (ERGA). In respect 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 as well as
long-standing provisions such as the news reporting provisions.
There has been some ‘alignment’
of rules for linear and video on demand services (e.g. Art. 12). This at an abstract level makes sense. Commentators suggest that the industry trend
is for entertainment, television and similar companies to focus on making and
assembling content for distribution across the multiplicity of digital
platforms available, in ways appropriate to those platforms but between which
there may be overlap of form and content. Certainly, there is inter-platform
competition. So these changes are aimed
at ensuring the mythical ‘level playing field’.
The provision that has caught
some attention when the proposal was leaked was that which imposes a European
quota requirement on on demand AMS providers: at least 20% of the catalogue has
to be European, and these works should be given prominence (Art. 13(1)). It replaces the current provision which, in
the words of the Commission ‘leaves room for testing different approaches’ but
which potentially ‘unlevels’ the playing field.
Note that there is no ‘so far as practicable’ phraseology in this
obligation (by contrast with the long-standing obligation on broadcasters),
although member States may waive obligations in relation to small and micro
enterprises (Art. 13(5)). The obligation
of ‘prominence’ is also not qualified (contrast the UK 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 have to
look for European works (or even national works) under the rubric “Foreign
Films”’ – not necessarily the most enticing branding.
The current TV quotas rules have
not addressed the problem of scheduling undermining the effectiveness of the
quotas, a point noted in the response to the Commission’s consultation. The definition of “European” has been left
unchanged – as have the tv quotas. This proposal
will no doubt please the EU film industry, though it is likely to be less
popular with the distribution sectors, which are already warning
about strangling a still not mature industry.
Against this background it is noteworthy that Netflix has produced a
series in Europe (Marseille – perhaps to get a stronger foothold in the French
language market) and is about to launch a second, as well as engaging with
local broadcasters (e.g. “Kiss Me First” with Channel 4; “Suburra” with RAI).
The proposal also introduces a
requirement for Member States to set up legally distinct and functionally independent
regulators, in many aspects following the Recommendation
of the Council of Europe (Rec (2000) 23). While the desirability of independent
regulators is recognised in most Member States as a way of safeguarding freedom
of expression while achieving other societal and political goals, there is no
such obligation in the current AVMSD framework. The need to introduce such a
requirement may be a response to developments in some of the Member States
where there have been changes to the regulatory architecture in respect of the
media with consequent concerns about media independence. It further specifies
with a non-exhaustive list the remit on such regulators: media pluralism, cultural diversity, consumer
protection, internal market and the promotion of fair competition. These roles must be established in law and
carry with them enforcement powers. A
right of appeal for viewers/end-users must be 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 basis of a Commission Decision
in 2014), in response to a perceived need for greater senior level cooperation in
European audiovisual policy developments. The response to the group has been
mixed, some questioning whether it adds anything to the existing groups, such
as the Contact Committee and the European Platform of Regulatory Authorities
(EPRA) which exists outside the EU framework. Alternatively, given the proposed
expansion of the AVMSD and the uncharted territory awaiting the regulators, a
mechanism for coordination may be important for the functioning of the COO
principle. ERGA has already produced
reports for the Commission on independence; on the protection of minors in a
converged environment; and on material jurisdiction as part of the preparation
for the review of the AVMSD.
Historically, the broadcasting
and now the audiovisual sector has revealed deep divides between member states
and also between various sectors of industry. The Commission has no doubt
attempted to produce a balance of interests after an extensive review
process. What will remain once the Council and the European Parliament
start to look at this, especially after what is likely to be intensive
lobbying, is anybody's guess. It may
even be affected by Brexit; while the directive should be agreed before any UK
exit, surely the UK’s negotiating position would be weakened between any ‘no’
vote and actual exit, shifting the balance between the free market and
dirigiste Member States.
Barnard and Peers: chapter 14
Photo credit: Theon Greyjoy
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