Media

Overview

Last updated: 9 August 2017

Bird & Bird's EU Legislation Tracker highlights Regulations and Directives scheduled to take effect or to be implemented by Member States in the period to the UK's departure from the EU. It does not provide an exhaustive survey. Instead, we have sought to summarise some of the key legislation, both draft and finalised, which we are tracking in the run up to Brexit and which are likely to be of interest to companies which do business in the UK and/or elsewhere in Europe. 

The Tracker includes a short commentary on the substance of each of the measures identified, and a timeline for their known or likely effective dates (for Regulations) or implementation deadlines (for Directives). These are colour coded by reference to the likely date of Brexit.

For the purposes of the Tracker, we have assumed that the UK will exit the EU two years from its service of Article 50 notice (i.e. 29th March 2019). Ultimately the UK's Great Repeal Bill will determine whether the UK will retain, implement, amend or repeal the legislation summarised in our Tracker and the date when this will happen.

Key
Implementation status 
  Implementation deadline/effective date likely to be pre-Brexit
  Implementation deadline/effective date likely to be post-Brexit
Timeline   EU legislation

Takes effect: 

1 April 2018

 

Regulation on ensuring the cross-border portability of online content services in the internal market

Overview:
  • Regulation which regulates the cross-border portability of online content services in the Internal Market. Part of the EC's Digital Market Strategy.
  • Following an updated draft of the Regulation, which was published by the EC in February 2017, the European Parliament ("EP") formally adopted the EC proposal for the Regulation on 18 May 2017, followed by the Justice and Home Affairs Council who formally adopted the Regulation at first reading on 8 June 2017.
  • Providers of online content services will be obliged to enable subscribers to access and use the service while temporarily present (e.g. on holiday, business trips or limited student stays) in an EU member state. To avoid abuses, service providers will verify the subscribers' member state of residence and the verifications will be carried out in compliance with EU data protection rules. If a subscriber cannot prove his/her member state of residence, the provider will be authorised to cease their access to the online service.
  • The Regulation will apply to all paid-for online content services. Free to air services, such as those provided by certain public broadcasters, will have the option of benefiting from the Regulation provided that they verify the country of residence of their subscribers.
  • The Regulation will grant rights holders the power to require a service provider to verify that it is providing subscribers with the required access and use to its services, although such verification must be reasonable and limited to what is required.
  • Regulation to have retrospective effect.
  • On 30 June 2017 the Regulation was published in the Official Journal and will take effect in nine months' time.

Brexit impact:

  • It remains to be seen whether the final Regulation will be varied / retained post Brexit.

Other information:

Regulation

Bird & Bird articles:

Digital Single Market: EU Commission proposal for a cross-border portability right

Phil Sherrell looks at the Digital Single Market and the challenges it brings

 

Takes effect:

[Likely late 2017 / early 2018?]

 

Draft: Regulation on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market, amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

Overview:

  • Draft Regulation which regulates unjustified geo-blocking which limits cross-border e-commerce. Part of the EC's Digital Market Strategy
  • The EC's draft was published in May 2016.
  • The EC's draft would prohibit geo-blocking, unless there a strict national or EU legal requirement obliging the trader to block access exists.
  • The proposal also states that discrimination against certain payment methods is prohibited if such treatment is a result of the location of payment account, the place of issuance or place of establishment of the payment service provider.
  • The EP Committee on Internal Market and Consumer Protection voted on the proposal on 25 April 2017, and as a result of the vote MEPs (1) added the right for buyers from another EU country than the trader to receive non-audiovisual copyrighted content (e.g. e-books and games); and (2) excluded sectors such as audiovisual services (e.g. broadcasting of sports), or financial, transport, electronic communication or healthcare services from the scope of the draft (although it was decided that the Commission should assess within three years of the Regulation coming into force whether these sectors should be covered in the future).
  • Negotiations will now take place between the EP, EC and Commission with a view to reaching an agreement on the final law.
  • The British Copyright Council's newsletter of 7 July 2017 stated that it understands the EC has voted to exclude material protected by copyright and related rights. This is yet to be confirmed.

Brexit impact:

  • It remains to be seen whether the final Regulation will be varied / retained post Brexit.

Other information:

Draft Regulation

Bird & Bird articles:
EU Commission calls time on geo-blocking in new regulation proposal
Commission publishes Draft Regulation on Geo-Blocking
What are the consequences of banning unjustified geoblocking in the European audiovisual industry?

 

Implementation deadline:

[Likely late 2018 / early 2019?]

 

Draft: Amendments to the Audiovisual Media Services ("AVMS") Directive (2010/13/EU)

Overview:

  • Draft Directive proposed to harmonise audiovisual media. Amends the existing AVMS Directive.
  • The EC's draft was published in May 2016.
  • Covers traditional TV broadcasts and on-demand services (including video sharing services – although obligations applicable to such services are limited to protection of minors and protection from hate speech. At least 30% of on demand service's content will need to be European works to qualify for coverage.
  • Member States to inform one other about the media service providers falling within their respective jurisdictions.
  • Permits EEA member states to impose obligations on on-demand providers targeting their national audience but established elsewhere to make financial contributions to the production of European works, in some circumstances.
  • The draft Directive is likely to be updated to address the issues raised by the European Regulators Group for Audiovisual Media Services ("ERGA") which published an opinion in October 2016.
  • On 23 May 2017 the EC reached a general approach on the draft Directive, including (1) extending the scope to include "social media" services, and (2) introducing more effective jurisdiction rules and strengthened co-operation procedures.
  • This EC approach will now pave the way for negotiations with the EP. The first inter-institutional informal meeting was expected to take place on 10 July 2017.
  • It is likely that Member States will have to comply with the amending Directive within a year after adoption.

Brexit impact:

  • It remains to be seen whether the UK will implement the Directive prior to leaving the EU (and retain that legislation having exited.)
  • Some concerns may be raised over the definition of the 'Country of Origin' in principle and how it will impact businesses. In addition, there are questions over whether the UK will be part of the 20% quota for online service content.

Other information:

Draft Directive

ERGA opinion

Bird & Bird articles:
Proposed revisions to the Audio Visual Media Services Directive

Translation please: The Audiovisual Media Services Directive to European Convention on Transfrontier Television

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