A new legislative proposal amending the AVMSD has been adopted by the European Commission on 25 May 2016. The reform brings the Directive in line with the new realities. Share A media framework for the 21st century
Viewers, and particularly minors, are moving from traditional TV to the online world, while the regulatory burden is much higher on TV. The Directive therefore introduces flexibility when restrictions only applicable to TV are no longer
justified. At the same time, it ensures that consumers will be sufficiently protected in the on-demand and Internet world. This is done while making sure that innovation will not be stifled.
The idea is to achieve a balance between competitiveness and consumer protection.
The main new elements of the proposal are summarised below:
The Country of origin principle (COO)
COO is a cornerstone of the Directive . It will be maintained and facilitated by:
simplifying the rules which determine the country having jurisdiction over a provider,
establishing an obligation on Member States to inform about what providers are under their jurisdiction and maintaining an up-to-date database to ensure transparency,
clarifying cooperation procedures between Member States regarding permissible limitations to COO.
The proposed modifications aim at reducing the burden of TV broadcasters while maintaining, and even reinforcing those rules seeking to protect the most vulnerable. For example, the revised AVMSD:
maintains the strict 20% limit on advertising time, but gives broadcasters more flexibility as to when ads can be shown,
it allows more flexibility in putting product placement and sponsorship,
it encourages the adoption of self- and co-regulation for the existing rules seeking to protect the most vulnerable (alcohol advertising, fatty food, minors, etc.).
Promotion of European works
The proposed modifications aim at enhancing the promotion of European works by:
allowing MS to impose financial contributions to providers of on-demand services established in other MS (but only on the turnover generated in the imposing country),
putting on-demand players under the obligation to promote European content to a limited level by imposing a minimum quota obligations (20% share of the audiovisual offer of their catalogues) and an obligation to give prominence to European
works in their catalogues,
low turnover companies, thematic services and small and micro enterprises are exempted from these requirements.
Prohibition of hate speech
The grounds for prohibiting hate speech will be aligned to those of the Framework Decision on combating certain forms and expressions of racism and xenophobia ( Decision 2008/913/JHA ). This prohibits incitement to violence and hatred directed
against a group of persons or a member of such a group defined by reference to sex, race, colour, religion, descent or national or ethnic origin.
Protection of Minors
The proposed modifications aim at simplifying the obligation to protect minors against harmful content. It now says that everything that 'may be harmful' should be restricted on all services. The most harmful content shall be subject to the
strictest measures, such as PIN codes and encryption. This will apply also to on-demand services.
Member States shall ensure that audiovisual media service providers provide sufficient information to viewers about harmful content to minors. For this purpose, Member States may use a system of descriptors indicating the nature of the content
of an audiovisual media service.
Video-sharing platforms will be included in the scope of the AVMSD only when it comes to combat hate speech and dissemination of harmful content to minors.
Platforms which organise and tag a large quantity of videos will have to protect minors from harmful content and to protect all citizens from incitement to hatred, based on new EU-specific terms in the revised AVMSD. Fully in line with the
ecommerce Directive , this builds on existing efforts by the industry and will be implemented by co-regulation.
The Audiovisual Regulators
The independence of audiovisual regulators will be enshrined into EU law by ensuring that they are legally distinct and functionally independent from the industry and government (eg they do not seek nor take instructions), operate in a
transparent and accountable manner which is set out in a law and have sufficient powers.
ERGA (The European Regulators Group for Audiovisual Media Services)
ERGA will have a bigger role in shaping and preserving the internal market, for example in assessing EU co-regulatory codes and will take part in the procedures derogating from the country of origin.
The role of the European Regulators Group for Audiovisual Media Services (ERGA) will be set out in EU legislation.
Once adopted by the European Commission, the legislative proposal is sent to the European Parliament and to the Council.
There are positive messages in the document, but also some problematic ones. CDT has consistently pushed back on proposals that would endanger the internet as an enabler of free expression, public debate, and access to information.
New rules on audiovisual media services will apply to broadcasters, and also to video-on-demand and video-sharing platforms
MEPs voted on updated rules on audiovisual media services covering children protection, stricter rules on advertising, and a requirement 30% European content in video-on-demand.
Following the final vote on this agreement, the revised legislation will apply to broadcasters, but also to video-on-demand and video-sharing platforms, such as Netflix, YouTube or Facebook, as well as to live streaming on video-sharing
The updated rules will ensure:
Enhanced protection of minors from violence, hatred, terrorism and harmful advertising
Audiovisual media services providers should have appropriate measures to combat content inciting violence, hatred and terrorism, while gratuitous violence and pornography will be subject to the strictest rules. Video-sharing platforms will now be
responsible for reacting quickly when content is reported or flagged by users as harmful.
The legislation does not include any automatic filtering of uploaded content, but, at the request of the Parliament, platforms need to create a transparent, easy-to-use and effective mechanism to allow users to report or flag content.
The new law includes strict rules on advertising, product placement in children's TV programmes and content available on video-on-demand platforms. EP negotiators also secured a personal data protection mechanism for children, imposing measures
to ensure that data collected by audiovisual media providers are not processed for commercial use, including for profiling and behaviourally targeted advertising.
Redefined limits of advertising
Under the new rules, advertising can take up a maximum of 20% of the daily broadcasting period between 6.00 and 18.00, giving the broadcaster the flexibility to adjust their advertising periods. A prime-time window between 18:00 and 0:00 was also
set out, during which advertising will only be allowed to take up a maximum of 20% of broadcasting time.
30% of European content on the video-on-demand platforms' catalogues
In order to support the cultural diversity of the European audiovisual sector, MEPs ensured that 30% of content in the video-on-demand platforms' catalogues should be European.
Video-on-demand platforms are also asked to contribute to the development of European audiovisual productions, either by investing directly in content or by contributing to national funds. The level of contribution in each country should be
proportional to their on-demand revenues in that country (member states where they are established or member states where they target the audience wholly or mostly).
The legislation also includes provisions regarding accessibility, integrity of a broadcaster's signal, strengthening regulatory authorities and promoting media competences.
The deal still needs to be formally approved by the Council of EU ministers before the revised law can enter into force. Member States have 21 months after its entry into force to transpose the new rules into national legislation.
The text was adopted by 452 votes against 132, with 65 abstentions.
A new section has been added to the AVMS rules re censorship
Member States shall take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made available
in such a way as to ensure that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They shall be proportionate to the potential harm of
the programme. The most harmful content, such as gratuitous violence and pornography, shall be subject to the strictest measures.
Personal data of minors collected or otherwise generated by media service providers pursuant to paragraph 1 shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising.
Member States shall ensure that media service providers provide sufficient information to viewers about content which may impair the physical, mental or moral development of minors. For this purpose, media service providers shall use a system
describing the potentially harmful nature of the content of an audiovisual media service. For the implementation of this paragraph, Member States shall encourage the use of co - regulation as provided for in Article 4a(1).
The Commission shall encourage media service providers to exchange best practices on co - regulatory codes of conduct . Member States and the Commission may foster self - regulation, for the purposes of this Article, through Union codes of
conduct as referred to in Article 4a(2).
Article 4a suggests possible organisation of the censors assigned to the task, eg state censors, state controlled organisations eg Ofcom, or nominally state controlled co-regulators like the defunct ATVOD.
Article 4a(3). notes that censorial countries like the UK are free to add further censorship rules of their own:
Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in compliance with this Directive and Union law, including where their national independent regulatory
authorities or bodies conclude that any code of conduct or parts thereof h ave proven not to be sufficiently effective. Member States shall report such rules to the Commission without undue delay. ;