Overview
On 19 December 2007 the new Audiovisual Media Service (AVMS) Directive came into force. Member States will now have two years for implementation of the new Directive, which substantially revises the Television Without Frontiers (TVWF) Directive of 1989. The AVMS Directive has undergone a consultation process that started in 2003 and its basic aim is to extend the existing legislation to apply to a greater number of audiovisual media services, in order to reflect the developments in new media and broadcasting technology.
The new definition of audiovisual media services, and specifically 'programmes,' means that the AVMS Directive now applies to all images whose 'form and content is comparable to that of a broadcast,' where there is simultaneous viewing based on a programme schedule. This therefore extends the scope of the AVMS Directive beyond traditional broadcasts to encompass new media transmissions including potentially Mobile TV, and also to include 'on-demand' television services. These 'non-linear services' allow users to choose to view programmes from a catalogue offered by the media service providers at their own convenience.
The main aims of the AVMS Directive in modernising the TVWF Directive are to respond to technological developments and to cover the full range of media services now available. In addition the AVMS Directive modernises and liberalises the rules of television advertising, and introduces important provisions on access to content for short news reports. The AVMS Directive therefore seeks to ensure that common minimum standards are upheld across the Community for the provision of media services and advertising. Furthermore, the AVMS Directive has maintained the original key principles of the TVWF Directive, of country of origin and of allowing freedom of reception throughout Europe (subject to certain new exceptions mentioned below regarding cross-jurisdiction issues). Freedom of reception requires that Member States shall not restrict retransmission on their territory of audiovisual media services from other Member States, for reasons within the scope of the Directive (unless the broadcaster of the programme has infringed provisions of the Directive at least twice within the last twelve months or the broadcast incites hatred based on race, sex, religion or nationality, or might cause serious impairment to minors.)
The discussions on the updated Directive began in 2003 with the first consultation. In 2004 the Commission entered into communication, before having a second consultation and creating a Commission Proposal in 2005. The Council gave its agreement to the Proposal in November 2006 and the Council and the Parliament achieved political agreement in May 2007. On 29 November 2007 the Parliament formally adopted the AVMS Directive, which was published in the Official Journal of the European Union on 18 December 2007, with an entry intro force date of 19 December 2007.
What does the Directive cover?
Audiovisual media services
The AVMS Directive applies to all 'audiovisual media services' which it defines as services which are under the editorial responsibility of a media service provider and are transmitted by electronic communications networks. A media service provider is an entity which has control over the content of the service and the manner in which it is organised. In addition, the service's principal purpose must be the provision of 'programmes' which, as outlined above, the Directive defines as 'a set of moving images, with or without sound [...] whose form and content is comparable to the form and content of television broadcasting.' Therefore both broadcast (linear) and non-broadcast (non-linear) programmes are now within the scope of the Directive.
Mobile TV
Mobile TV is also likely to fall within the new definition of 'programmes' and to come within the scope of the AVMS Directive. This type of service offers the facility to have traditional broadcasting or on-demand programmes streamed via mobile telephones. Although this still a developing area and there has been slow take up in the EU so far, as it becomes more widely used the legislation implemented as a result of the AVMS Directive will be likely to apply. The EC favours Mobile TV and is promoting a common standard, known as Digital Video Broadcasting for Handhelds (DVB-H).
European and Independent Works
The AVMS Directive maintains the principles in the TVWF that media service providers should ensure a majority of their transmission time is reserved for European works and at least 10% of their budget for independent works. This obligation is extended to cover on-demand services, requiring media service providers to promote production, and access to, European works.
Exclusions
The AVMS Directive does not cover: non-economic activity; ancillary audiovisual content; activities not in competition with TV; private websites; websites containing ancillary audiovisual elements; electronic newspapers and magazines; the distribution of audiovisual content generated by private users; or the transmission of programmes for which editorial responsibility lies with another person. Therefore audiovisual material included in an incidental manner on a website promoting other products would not normally be covered.
Audiovisual commercial communications
The AVMS Directive also applies to audiovisual commercial communications (ACCs). These are defined as 'images, with or without sound, which are designed to promote, directly or indirectly, the goods, services or images of a natural or legal entity pursuing an economic activity.' The images must accompany or be included in the programme in return for payment in order for the provisions of the AVMS Directive to apply. There are therefore a number of new provisions which apply to the way television advertising may be carried out.
In order to regulate advertising, the AVMS Directive lays out a number of underlying principles which must be followed by the makers of advertisements. Under Article 3e, ACCs (advertisements) must be readily recognisable as advertisements and must not use subliminal techniques or prejudice respect for human dignity. In addition they must not include or promote any discrimination or encourage behaviour which would be considered prejudicial to health or safety. Certain types of advertisements (for cigarettes, tobacco and prescription drugs) are forbidden. Finally, the protection of children is highlighted as one of the key principles of the AVMS Directive, so advertisements with contents which could cause moral or physical detriment to minors are also prohibited. Furthermore Member States are encouraged to create Codes dealing with the appearance of advertisements for certain foods and drinks during children's television programmes.
Articles 11 and 18 of the AVMS Directive give guidelines on the proportions of time which may be set aside for advertising during the programme schedules - an advertisement must not affect the integrity of a programme, there must be no more than one advertisement within each thirty minute period of any programme which is over thirty minutes long and the proportion of advertising must not exceed 20% of each hour. Under Article 19 these rules do not apply where a channel is specifically devoted to advertising or teleshopping.
Sponsorship and product placement
More specific provisions concerning the content of advertisements are laid out in Articles 3f (sponsorship) and 3g (prohibition of product placement) of the AVMS Directive. If a programme is sponsored the viewers must be clearly informed and its content and scheduling must not be influenced so as to affect editorial independence. Businesses which principally manufacture or sell tobacco products or prescription drugs and treatments cannot sponsor programmes.
Product placement may be used only in cinematographic works, film, sports programmes and light entertainment programmes and in cases where there is no payment but only provision of certain goods or services for free. Where product placement is allowed, the content and scheduling must not affect editorial independence, the product cannot be given undue prominence and the viewers must be clearly informed about the product placement. Otherwise, product placement during programmes is prohibited. Product placement can never be used in programmes aimed at children or for tobacco products and prescription drugs.
Major "listed" events
Many media service providers negotiate exclusive access to, and/or rights to broadcast, certain events. It is important that this practice does not hinder the public's freedom to view certain major events. This is dealt with at Article 3j of the AVMS Directive. An event which a Member State elects to designate an event 'of major importance' cannot be subject to an exclusive broadcast licence, if such an arrangement would deprive a substantial proportion of the public in that Member State of the possibility of following such events by live or deferred coverage on free television.
Short news reports
Under Article 3k, media service providers with exclusive licences for certain newsworthy events are now required to give other media service providers access to the footage on fair, reasonable and non-discriminatory terms, and allow them to choose short extracts (maximum 90 seconds) with an acknowledgement of the source, for the purpose of short news reports. The media service provider paying for an exclusive licence is permitted to claim compensation in return for allowing these clips to be used, but the compensation must not exceed the value of the costs directly incurred by the media service provider in providing the access.
Jurisdiction
Which Member State's laws apply?
As each Member State may implement the AVMS Directive in its own way, the legislation may be different across the Community. This raises the issue of which country's laws will be applied when compliance is called into question.
As under the provisions of the TVWF Directive, under Article 2 of the AVMS Directive jurisdiction is given to the Member State in which the media service provider is 'established.' This is deemed to be the Member State in which the media service provider's head office is based and where editorial decisions are taken. If these two locations are based in more than one country, the Member State in which a significant part of the workforce operates is used. If a significant part of the workforce operates in two or more Member States, jurisdiction is given to the country in which the head office of the media service provider is based.
Cross-jurisdiction issues
Insofar as different Member States have different ways of implementing (and possibly interpreting) the AVMS Directive (since the directive sets a minimum standard), a broadcaster might chose to establish itself in a certain jurisdiction knowing that it has taken a more lenient view. Under Article 3 of the AVMS Directive, a media service provider cannot establish itself in a more lenient jurisdiction only to make programmes intended for broadcast in another, stricter Member State. The intended territory will be assessed by looking at the origin of the advertising revenue, the main language of the programme and any commercial communications. If a Member State believes that a media service provider has established itself elsewhere but intends to transmit its programmes within that Member State's territory, it may contact the authorities of the Member State in which the media service provider is established for the purposes of jurisdiction, in order to arrange a mutually satisfactory solution. This may involve appropriate and proportionate steps being taken against the media service provider.
Other main principles
Protection of Minors
One of the main principles which the AVMS Directive upholds throughout is the importance of protection of minors. This is particularly relevant now that on-demand services have become available, as content of programmes seen by children is less easily monitored when any programme can be viewed at the user's choice of time. Article 3h has introduced a new provision requiring Member States to take measures to ensure that on-demand services which might seriously impair the physical, mental or moral development of minors are only made available in such a way that ensures minors will not normally have access to them. This complements the existing Article 22 of the TVWF Directive which requires that programmes which minors might be exposed to in the normal broadcasting schedule must not contain content which might seriously impair the physical, mental or moral development of minors. If such content will appear in a programme the audience should be warned by an acoustic message.
Right of reply
It is an essential element of the AVMS Directive that any natural or legal person, regardless of their nationality, whose legitimate interests have been damaged by an assertion of incorrect facts in a TV programme, must have the right to reply, or equivalent remedies. Each Member State must ensure when it enacts this Directive, that this is available against all media service providers under its jurisdiction. This is found at Article 23.
Conclusions
The primary intention for this AVMS Directive was to update the legislation to reflect developments in technology and to cover new media transmissions which are comparable to traditional broadcasts. This has been implemented specifically by increasing the scope of the AVMS Directive and by providing that on-demand as well as broadcast services are now covered. The AVMS Directive also liberalises and modernises the rules on advertising within programmes. At the same time the original basic principle of freedom of reception in a Member State of programmes originating from another Member State, the 'country of origin' principle, continues to apply.
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Contacts
For further information, please contact Helene H Miksche, Graham Smith, Pauline Kuipers, Matt Dennis.
Click here to view a copy of the Directive.