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Brussels, 18 December 2008

Audiovisual Media Services without Frontiers: Frequently Asked Questions

One year ago, on 19 December the Audiovisual Media Services Directive came into force (IP/07/1809). It provides a modern set of rules for Europe's audiovisual industry that covers all audiovisual media services – traditional as well as online and on-demand audiovisual content. It also makes EU rules on TV advertising less detailed and more flexible and focused on future trends to make it easier for service providers to finance their programmes and for users to recognise commercial messages.

What is an audiovisual media service?

An "audiovisual media service" is a service provided by a media service provider. This service can either be a linear programme with a programme schedule (on TV or over the internet as IPTV) or an on-demand service (video on demand or catch-up TV).

Such services must come under the editorial responsibility of a media service providing programmes for the general. This definition covers TV programmes and on-demand catalogues of TV-like content, as well as commercial audiovisual communication (advertising, in other words) but does not apply to any non-economic activity like non-commercial blogs, any form of private correspondence nor radio. Platforms for the exchange of user generated content, such as YouTube, do not fall within the scope of the Directive provided that there is no editorial control over the selection of programmes for a broadcast schedule or an on demand catalogue.

Why has the EU adopted new rules on audiovisual media services?

Audiovisual Europe has seen tremendous change since 1989 when the Television without Frontiers Directive first defined a set of rules for television broadcasting in the EU. New opportunities for delivering content have raised the question of how these services should be regulated and what rules should apply to videos available from the internet or to films that are supplied at the user's request.

The old rules clearly distinguished between traditional broadcast content services and information society services that appeared with the development of new technologies. Today audiovisual content is no longer transmitted on a one-to-many basis only, but also on demand as a one-to-one service. The digitisation of information, the increase in transmission bandwidth, and the development of new distribution platforms have rendered the old technology-based approach to identifying media services obsolete.

The new "Audiovisual Media Services" Directive replaces the old "Television without Frontiers" Directive, which was last amended in 1997. It preserves the core principles of the existing television rules and adapts them to the new audiovisual environment and services like on demand films and news: protection of minors and consumers, fight against hate speech, promotion of European content, increased accessibility and an improved right to information through the right to short reporting. The underlying goal of the Directive remains the same: providing a single market for audiovisual content with European standards for "traditional" and new services so that national borders are no longer obstacles for viewers and users.

What sort of new services and technologies are being taken into account?

The Audiovisual Media Services Directive represents a shift from a technology-based definition of services to an approach based on the use of media, reflecting the following technology and market developments:

  • The convergence of technologies, platforms and services, such as traditional TV, internet TV, IPTV (digital television delivered by an internet network), web TV, TV on mobile phones and other mobile devices;
  • The expansion of fixed broadband, digital TV and 3G networks;
  • The arrival of new delivery services such as video on demand and peer-to-peer exchanges of audiovisual content;
  • The blending of traditional and on demand services;
  • Changes of viewer habits, where more and more people want audiovisual content to follow their time schedule and not the other way around;
  • New advertising methods, such as search-related ads on the internet or SMS ads on mobile phones.

What does the Directive aim to do?

The aim of the Audiovisual Media Services Directive is to provide a modern, competition-friendly set of rules for Europe’s providers of TV and TV-like services, by giving more flexibility for financing audiovisual content with new forms of advertising, for example. While continuing to ensure a high level of consumer protection the new Directive also creates a level playing field for all companies that offer on-demand audiovisual media services, allowing them to profit from Europe's single market, regardless of the technology they use to deliver their services.

The main elements of the Directive are:

  • a comprehensive set of rules covering all audiovisual media services that reduce regulatory red tape and promote industry self- and co-regulation;
  • modernised rules on television advertising that make it easier to finance audiovisual content, combined with standards protecting consumers and ensuring the integrity of content;
  • new rules on short reporting (i.e. on the use of short extracts for news report of footage of events that are otherwise subject to exclusive rights) and
  • consumer rules such as obligations for media service providers to improve access for people with visual or hearing impairments.

Until when do the Member States have to implement the new rules?

Member States have two years from the entry into force of the Audiovisual Media Services Directive to transpose its provisions into their national legal systems. The modernised rules for Audiovisual Europe will fully apply in December 2009.

How far are the Member States in the process of implementation of the new Directive?

Only Romania has completed the necessary steps to fully implement the new Directive. The other 26 as well as the EEA countries (European Economic Area) and the candidate countries are in the process of putting it in place. In some Member States, the government has not even completed the consultation of stakeholders on the main options for implementing the EU rules (Bulgaria, Germany, Slovenia, Slovakia, Sweden, the Czech Republic, Spain, the UK, Italy, Estonia, Greece, Finland, Denmark and Cyprus). In others, drafts of the new rules are ready for parliamentary procedures early next year (the Netherlands, Lithuania, Latvia, Luxembourg, Spain, Belgium, Hungary, Poland, Portugal, and Ireland). Austria and Malta have already implemented some of the new rules, notably advertising rules.

What does the Commission do to help to transpose the Directive into the national law?

The Commission assists the Member States and organises regular discussions with national administrations in the framework of a "Contact Committee" as well as in ad hoc meetings with Member States' independent regulators.

In 2008 the Contact Committee met four times to discuss questions related to the implementation of the new Directive. The minutes of these meetings are available on the website of the Commission.

How many TV channels are there today in the EU?

The television landscape is more and more diversified and has reached considerable scope: over 4 000 TV channels are active in the 27 EU Member States. .About 350 can be classified as "mainstream" national channels (both public and private); about 1 750 channels distributed via cable, satellite, IPTV and mobile platforms are more specialised and almost 1 300 channels are considered as regional, territorial or local. About 650 channels are specifically aimed at trans-national audiences.

How many providers of video-on-demand (VOD) services are there today in the EU?

On demand services are rapidly expanding in the EU. They currently number over 400. Internet is the main distribution platform - 260 services – followed by IPTV services – about 100 - and by services distributed via cable connections – about 50. There are about 10 VOD services delivered by satellite and 2 operate in one country on a digital terrestrial platform.

Are TV and video on demand treated alike by the new EU rules?

The Directive covers both "linear" television broadcasting and new on-demand services, but treats them as two distinct categories of audiovisual media services. The distinction depends on who decides when a specific programme is transmitted and whether users chose (and control) what they view from a predetermined schedule or catalogue.

  • Television "broadcasting" is a linear service provided for simultaneous viewing of programmes by many users on the basis of a programme schedule. Under the new Directive the rules for television advertising were updated and general rules for product placement introduced.
  • On demand services are provided for the viewing of programmes at the moment chosen by the individual user from a catalogue. For these services, the Directive limits itself to establishing rules for the safeguarding of essential public interests like protecting minors, encouraging cultural diversity, ensuring essential consumer protection and preventing incitement to hatred.

In other words, the Directive applies lighter-touch regulation to on-demand services, taking into account the increased degree of choice and user-control over the service. This also reflects the relative impact they have on society as a whole.

What advantages do EU consumers have from the new rules?

A single market for TV and TV-like services will give European viewers greater choice and more quality programmes. Enlarging this market to on-demand services will make it easier for users to watch what they want, when they want.

Consumers will also benefit directly from updated rules on advertising. The Directive strikes a balance between protecting viewers from excesses and stimulating revenues for media companies. It limits the amount of television advertising spots to twelve minutes per hour while allowing for more flexibility with regard to the insertion of spots between and sometimes in programmes. It also improves the level of consumer protection by establishing qualitative advertising rules for on-demand services.

The new Directive also sets out transparency obligations for service providers so as to ensure that they can be held liable for their actions. This obliges service providers to identify themselves so that editorial decision-makers can be held to account. There is a provision requiring all audiovisual media services to increase their accessibility for people with a hearing or viewing disability (e.g. through sub titling or audio description).

Access to short extracts for news reports of events of high importance, otherwise subject to exclusive rights, is ensured and promotes the public's right to information.

The Directive also encourages providers of children’s programmes to develop codes of conduct on the inappropriate advertising of foods and beverages containing nutrients and substances with a nutritional or physiological effect, excessive intakes of which are not recommended.

In which way does the EU's audiovisual industry benefit from the new rules?

The Audiovisual Media Services Directive will contribute to the growth of EU’s audiovisual industry in several ways:

  • by strengthening the economic base for the audiovisual industry, thanks notably to more flexible rules on TV advertising , as well the recognition of new forms of advertising such as split-screen, virtual or interactive. This includes more flexibility for broadcasters to insert spot advertising and scrapes the old rule that imposed a time period of twenty minutes between each advertising break. The special nature of films, news and children's programmes are taken into account in the new rules.
  • by establishing a clear framework for product placement, which presently benefits mostly non-European content producers, without viewers being suitably informed of its presence. The Directive opens up new revenue sources for Europe’s audiovisual providers and producers and helps to boost Europe’s creative economy and reinforce its cultural diversity, while ensuring that viewers are adequately protected in particular through adequate information when product placement is used in a programme.
  • by extending the “country of origin” principle to on-demand audiovisual media services. This principle has been the cornerstone of the development of Europe’s broadcasting industry since 1989. Each service must comply only with the rules of the country in which its provider is established, making it easy for service providers to identify the rules that apply to them and opening up markets to cross-border competition. For on-demand services this principle will apply across the EU with a minimum of necessary harmonisation, creating a level playing field in the single market, increasing investment in Europe's audiovisual industry and providing greater choice and diversity for Europe's consumers.

Will the new Directive allow more advertising on TV?

The Directive introduces a set of rules for commercial communications across the new audiovisual environment. As a result, users now benefit from general requirements that make advertising and commercial messages readily recognizable, protect human dignity, and abstain from using surreptitious and subliminal techniques.

The amount of advertising spots will remain limited to 12 minutes in any given hour, so that viewers will not be overwhelmed with excessive advertising. Films, current affairs programmes and news cannot be interrupted by adverts more than once for each period of 30 minutes. Children's programmes over 30 minutes may be interrupted only once in each 30-minute period. However, service providers are given more flexibility regarding advertising breaks during other types of programmes, notably with the abolition of the rule obliging broadcasters to have 20 minutes between each break during the same programme.

Member States have to ensure that neither the integrity of programmes nor the rights of the copyright owners are prejudiced when advertising or teleshopping spots are inserted. This means that ad breaks should take account of programmes' natural breaks, duration and type.

Will there be product placement in all programmes?

As a basic principle, product placement is prohibited. There is no exception to this rule for tobacco products and specific prescription medicines. Exceptions are however provided for paid product placement in cinematographic works, films and series made for audiovisual services, sports and light entertainment programmes, unless a Member State decides otherwise for broadcasters under its jurisdiction. Product placement is also admissible where it consists of the provision of certain goods or services free of charge, such as production props and prizes. This type of unpaid product placement is also allowed in children's programmes.

Product placement is governed by presentational rules. The content and the scheduling of programmes that contain product placement should not influence a provider's responsibility and editorial independence. Programmes should not directly encourage the purchase or rental of goods or services, nor give undue prominence to a product.

Viewers must be clearly informed if there is a product placement at the start and end of a programme, and after advertising breaks.

Why are there rules for product placement?

Product placement has become common practice in independently produced works and feature films. The absence of EU-wide rules was an obstacle to the single market. Not only did this lead to unclear or divergent rules on product placement and prevent audiovisual content producers from making use of this important source of financing, but it also failed to adequately protect consumers, who have the right to know what kind of content they are watching.

How does the new Directive strengthen cultural diversity?

The new Directive requires Member States to ensure that European works are promoted beyond the world of traditional TV broadcasting in on-demand services. For example, media service providers can be obliged to invest a certain percentage of turnover in European audiovisual production, reserve a certain share of the catalogue for European works, and present European works prominently in catalogues. These measures will foster cultural diversity by strengthening the economic basis of Europe's production industries and encouraging the circulation of European works.

The Directive reaffirms the common policy objectives at the heart of Europe's audiovisual policy since 1989. It requires Member States to protect minors, promote European works and independent audiovisual productions, and prohibit content that would incite religious or racial hatred. New provisions safeguard the right to information and ensure increased accessibility for people with disabilities.

How culturally diverse our European TV screens are in practice?

More than 63% of Europe's television broadcasters' programming time is devoted to European works and over 36% to works by independent European producers. These new figures come from a biennial Commission report on the effectiveness of EU rules in promoting European works on European TV screens covering the period 2005-2006 (IP/08/1207).

How does the new Directive strengthen media pluralism?

The Directive explicitly encourages industry self- and co-regulation and underlines the importance of independent national media regulators to democracy and media pluralism.

It promotes pluralism through the diversity of news production and the free flow of information. Any broadcaster in the EU is guaranteed access to extracts of events of high public interest for the purpose of short news reporting, even if the event is transmitted on an exclusive basis by a broadcaster in another Member State. Some Member States had already introduced rules on short reporting, but others had not. This lack of harmonisation caused legal uncertainty for broadcasters. The new Directive ensures that there are equal opportunities for broadcasters under Community law.

What do the new rules do to ensure the protection of minors?

The old Television without Frontiers Directive protected children from TV programmes that could seriously impair their physical, mental or moral development. The new Audiovisual Media Services Directive extends this to on-demand services. On demand services that might seriously harm minors, may only be provided in a way that minors will not normally hear or see them. This can be achieved by password protection, encryption or other technical means.

What happens if a service provider from one country tries to circumvent stricter national measures of another?

The Directive contains a new procedure regarding broadcasters from other Member States allegedly circumventing stricter rules of the targeted Member State. The first stage of the procedure consists of dialogue between the Member States concerned on a "best endeavours" basis, and should enable most difficulties to be solved. Should this dialogue fail, a second, formal stage with binding measures would begin, requiring the European Commission to verify that the aggrieved Member State's proposed measures are allowed under EU law.

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