06 June, 2016
ETNO ThinkDigital Blog: Audiovisual Media Services in Europe - Adapting rules to the new innovative landscape
On 25 May, in the context of the Digital Single Market Strategy, the European Commission (EC) proposed an update to the current EU Audiovisual Media Services (AVMS) rules. The EC’s overall aim is to strengthen cultural diversity, create a fairer environment for all players, promote European works, protect children and better tackle hate speech.
This is not the first time that EU rules on audiovisual media services are updated. As technology and markets evolve rapidly, the rules that were first adopted in 1989 have been updated on various occasions (1997 and 2007) since their introduction and will likely be re-adapted in the future.
It is clear that the sector has very much changed since the 1980s. While most people still arrange their lounge according to the central position of their TV, viewing habits are drastically different, especially amongst the younger generations.
According to a study commissioned by the EC, live television viewing has declined in Europe and television viewing is significantly lower among young people. The BBC described 2015 findings from Childwise as a “tipping point with children switching from conventional television to spending time online.” The same article pointed out that YouTube was used by 74% of young people, compared with about 40% watching programmes through the on-demand BBC iPlayer.
A lot of us prefer to use tablets or smartphones to watch audiovisual content and while traditional TV content still accounts for a major share of the average daily viewing time (3h43'), video-on-demand (VOD) and other Internet-based services have gained constantly in importance.
ETNO therefore recognises that in the increasingly on-demand and mobile environment, rules on audiovisual media services must be an important part of the EC’s work towards a comprehensive, coherent and proportionate new regulatory framework for the Digital Single Market. Achieving a single market in this area is also in the best interest of consumers and media service providers who would benefit from a free flow of services within the European Union.
The “country of origin” principle
Following on from the proposal, the EC, European Parliament and EU Member States must now work together to ensure that the final AVMS Directive (AVMSD) provides for a fair, effective and harmonised framework that takes into consideration the challenges and opportunities offered by new business models and new technologies. It is essential to analyse whether existing rules are still relevant in the current market context and to leave room for self-and co-regulation in areas where statutory rules are no longer necessary.
The “country of origin” principle is core to the AVMSD and, according to the majority of ETNO members, it should continue to ensure an internal market for audiovisual media services, in line with the original objectives of the legislation. Due to a substantial lack of harmonisation however, this principle has incentivised some non-EU-based companies to establish in Member States where rules on media services are more liberal, paving the way for forum shopping and competition distortion within the EU market. In this sense, the “country of origin” practice, although fair in principle, can in some cases lead to unfair results. While we note some adaptations of the above principle, ETNO maintains that in principle any new rules should not impede the development of new and innovative business models: for this reason, the review should analyse whether the existing rules are still relevant in the current market context.
Protecting minors and preventing hate speech
Within the context of the AVMSD, it is also important to mention the concept of editorial responsibility: while the basic definition remains unchanged, the EC’s proposal now also covers video-sharing platforms, even though the latter do not have editorial responsibility in the traditional sense. It can be said that the role they play in certain policy areas - such as the protection of minors and the prevention of incitement to violence and hatred - has increased. The protection of minors from harmful content and of all citizens from hate speech is indeed a very important aspect of the EC’s proposal. As younger generations change their habits, minors in particular should be protected regardless of the technology or media used. ETNO maintains that self- and co-regulatory tools should be applied in this area and overly-prescriptive measures should be avoided.
ETNO members are strongly committed to protecting the younger generations online. For this reason the Association welcomes the EC’s approach, which now explicitly complements the existing e-commerce directive and does not impose any ex-ante monitoring obligations on providers. ETNO members stand ready to support the EC through their voluntary and serious commitment to online child protection, which is coordinated by the Association’s Child Protection Task Team of the ETNO Corporate Responsibility working group. Members are particularly active in supporting the ICT Coalition for Children Online (ICT Coalition), a recognised industry collaborative, self-regulatory initiative that developed the ICT Principles for the Safer Use of Connected Devices and Online Services by Children and Young People in the EU (ICT Principles). The ICT Coalition provides a continuous, future-looking platform promoting a constructive multi-stakeholder dialogue and innovative approach to child safety in Europe. It is important that the new framework does not impose unnecessary regulatory burdens on players in areas where self-regulatory initiatives like this are already effectively implemented.
Based on the above reasoning, ETNO welcomes this initial AVMSD proposal and looks forward to a speedy response from the EP and national governments. The EC’s proposal still has a long way to go through the EU regulatory process. Achieving a true digital single market in which innovation is cherished should be the guiding principle of any reform and ETNO encourages policymakers, who are working hard to make this a reality, to carefully consider which of the existing rules in the AVMSD are still relevant in the current market context. As to next steps, the EC should now look into adapting the AVMSD’s “sister directive” - the Satellite and Cable Directive - to the realities and requirements of a digitised, converged media and communications sphere in the EU.
By Caterina Bortolini and Marta Capelo for ETNO #ThinkDigital, 06.06.2016
Caterina Bortolini, Legal/Regulatory advisor, Telecom Italia and Digital Single Market Working Group Chair, ETNO
Caterina Bortolini has been working within the Telecom Italia Group for 15 years. After some years in Brussels, during which she specialised in antitrust and telecommunications law, she is now based in the Telecom Italia headquarters in Rome and deals with European and international public policy affairs. Within ETNO, she covers the chairmanship of the Digital Single Market WG, dealing with matters related to the online distribution of content and intermediaries liability. She also participates to the activities of other EU and international associations and organisations.
Marta Capelo Gaspar, Director of Public Policy, ETNO
Prior to joining ETNO, Marta worked as the Transport and Communications Counsellor for the Portuguese Permanent Representation to the European Union. Before that, she was a Member of the Cabinet of the Portuguese Secretary of State for Infrastructure, Transport and Communications.
Marta has extensive experience in telecoms regulation as well as intellectual property, data protection and e-Commerce services. In the early years of her career, she worked as a lawyer for leading Portuguese and international law firms in the technology, media & telecoms practice. Her academic background includes a degree in law from the Catholic University of Lisbon and European Legal Studies at the College of Europe in Bruges.