Reform of the AVMS Directive: the view from the European Commission and the DCMS

On 15 March 2016 the Westminster Media Forum discussed policy changes around audiovisual media regulation in the Digital Single Market. We heard from, amongst others, representatives from the European Commission and the Department for Culture, Media and Sport (DCMS).

Update from the European Commission on AVMS reform

The Audiovisual Media Services (AVMS) Directive, adopted in 2007, is the current European legislation that determines the UK’s (and the rest of Europe’s) approach to television broadcasters and to providers of on-demand programmes that are similar to or compete with television content. With user behaviour changing and markets converging, and following the European Commission’s Green Paper in 2013, “Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values”, the European Commission opened a consultation in 2015 to seek industry views on the following issues:

• Ensuring a level playing field for audiovisual media services.
• Providing for an optimal level of consumer protection.
• User protection and prohibition of hate speech and discrimination.
• Promoting European audiovisual content.
• Strengthening the EU Single Market.
• Strengthening media freedom and pluralism, access to information and accessibility to content for people with disabilities.

The consultation responses, numbering in excess of 430, have been received by the European Commission. Krisztina Stump, Deputy Head of Unit, Converging Media and Content, DG CONNECT at the European Commission, discussed some of the main objectives which the Commission is trying to achieve in its legislative proposal to reform the AVMS Directive, the common trends coming out of responses and the timetable for a legislative proposal to be published.

Main objectives

• Creating a regulatory framework to enable innovation and competition.
• Ensuring consumer user experience is fulfilling.
• Protection of minors.
• Safeguarding key values and concepts, such as the Single Market and media plurality.

Common trends from responses

• The scope of the AVMS Directive was a key issue for respondents – giving the European Commission industry viewpoints on whether the distinction between linear and non-linear distribution of audiovisual content needs to be maintained.
• There was no clear consensus on how commercial communications or the protection of minors should be addressed in reform of the Directive, although there was a common consensus that these areas need to be considered.
• The need for independent regulatory authorities was clear; however, most respondents were positive about the current EU rules on this.
• There was support for a status quo in certain areas, such as the country of origin principle, accessibility and the right of reply.

Timetable

The European Commission intends to adopt a legislative proposal before summer 2016, which we understand to be before the end of July when the European Commission will break for the summer recess. Whilst July doesn’t appear to be too far away, Ms. Stump did emphasise that they are still happy to consider viewpoints and comments on the consultation.

The next step will be for the European Council and European Parliament to review and negotiate the scope of the legislative proposal.

DCMS viewpoint on European AVMS reform and its balance of payments consultation

Katharina Ribbe, Head of Content Regulation at the DCMS, spoke on behalf of DCMS and stressed that it considers the AVMS Directive as being fit for purpose, and that the UK being part of the Digital Single Market remains an important element for DCMS to promote UK industry.

We have set out a few of Ms. Ribbe’s key thoughts on the AVMS reform:

• Country of origin principle. DCMS discussed the benefits that the country of origin principle brings to the UK, and how it views the principle as being a core part of the Directive. It encourages the European Commission to ensure that the principle is not eroded. Currently there are over 650 channels licensed by Ofcom, as the UK regulator, which solely distribute content to other Member States, which demonstrates how the UK has benefitted from this principle.
• Scope of the AVMS Directive. DCMS does not believe that the scope needs to be extended to cover more on-demand content. It believes the current distinction is technically clear between broadcast content and content requested on the internet.
• Protection of minors. DCMS is committed to protecting children, but questioned the ability to have a “one size fits all rule” where cultural differences about what is appropriate content vary across the EU.
• De-regulation? DCMS does not believe that AVMS should be de-regulated and that caution should be applied in leaving behind current protections, for example the watershed, in relation to protecting minors on broadcast distribution.
• Other regulation? DCMS also highlighted that some of the objectives that the European Commission is trying to achieve on AVMS reform may be better achieved through other legislation within the Digital Single Market initiative.
• Balance of payments consultation. DCMS confirmed that there is no expected date for the response to its consultation on the balance of payments between television platforms and public service broadcasters published in 2015 and that it continues to analyse the responses.