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.