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Brussels, 1 September 2011
The European Commission has written to eight Member States seeking information about their implementation of the Audiovisual Media Services (AVMS) Directive (see IP/11/1002). The fact-finding letters are part of the Commission's efforts to ensure that the national media laws of all the Member States correctly implement all aspects of the AVMS Directive. This follows a first round of letters to sixteen other Member States sent in March 2011 (see IP/11/373). This MEMO explains the specific rules of the AVMS Directive where the Commission is seeking clarification as regards Member States' implementation.
What are the main features of the AVMS Directive?
The questions submitted to the Member States touch upon a wide variety of issues related to the implementation of the Directive.
The country of origin principle is essential to give service providers legal certainty and to help them develop new cross border business models.
When a broadcaster based outside the EU uses a satellite up-link in an EU country, that EU country will have jurisdiction. When there is no up-link in the EU, the EU country whose satellite capacity is used has jurisdiction.
Countries can restrict broadcast of unsuitable content (Article 2)
EU countries can restrict the retransmission of unsuitable on-demand audiovisual content that may not be banned in its country of origin when this is required by overriding general interest considerations such as the protection of minors.
If an EU Member State objects to the content in a television broadcast from another Member State, it can use a consultation procedure (cooperation procedure) to address the country of origin. The latter shall then issue a non-binding request for the broadcaster to comply with the stricter rules of the targeted country.
If the broadcaster circumvents these national rules, the objecting country can also - with the Commission's prior approval – take binding measures (circumvention procedure).
Member States cannot block broadcasts or on-demand services from other Member States without following these procedures.
Definition of audiovisual commercial communication (Article 1(1)(h))
The AVMS rules have a broad definition of what constitutes advertising, including sponsorship, product placement, teleshopping, etc. This is to ensure that all forms of commercial audiovisual content are covered by the same common set of rules, regardless of how they are used for the programmes. The AVMS rules define the conditions under which product placement is allowed. Member States are free to adopt stricter rules for media companies under their jurisdiction, provided that those rules comply with EU law.
For television advertising, limits on quantity are more flexible but the hourly limit of 12 minutes for spot advertising and teleshopping spots remains. A wide range of qualitative advertising standards to address new challenges such as potentially unhealthy foodstuffs is possible.
Identification requirements (Article 5)
All audiovisual media service providers must indicate all the relevant data needed to ensure that whoever makes the editorial decisions can be held liable, but such data cannot be required before on-demand services or broadcasts are supplied, only within a reasonable period afterwards.
Member States must ensure that audiovisual media services provided by media service providers under their jurisdiction do not contain any incitement to hatred based on race, sex, religion or nationality. However, such provisions must be well-defined and may not extend to vaguely-defined notions such as "causing offence".
Access for the sight- and/or hearing impaired (Article 7)
The Directive aims to make audiovisual content increasingly accessible for these groups. Governments must encourage media companies under their jurisdiction to do this, e.g. by subtitling and audio description.
The new rules require governments to encourage self-regulation in certain fields (e.g. advertising), sometimes combined with government intervention (“co-regulation”) - where their legal systems allow. Such regimes must be broadly accepted by the main stakeholders and provide for effective enforcement.
Protection of minors in on-demand services (Article 12)
Programmes which "might seriously impair" the development of minors are allowed in on-demand services, but they may only be made available in such a way that minors will not normally hear or see them. Such access controls may involve the use of PIN codes or other more sophisticated age verification systems. There are no restrictions for programmes which might simply be "harmful". In line with the subsidiarity principle, it is up to each Member State to define which programmes "might seriously impair" the development of minors.
Promoting European works
The AVMS Directive contains three provisions aiming at promoting European works in on-demand services (Article 13) and European and independent works in television services (Articles 16 and 17). Articles 16 and 17 set out the minimum proportions of European works to be broadcast in television services (majority of the transmission time) and of European independent works (10% of the broadcasters' transmission time or 10% of their programming budget). Article 13 does not define any concrete proportion, leaving some freedom to the Member States to adopt the most appropriate measures to promote the production of and access to European works in on-demand services.
Major events & short news extracts
List of major events for television broadcasting (Article 14)
Under the AVMS Directive Member States can draw up a list of events of major importance (such as the Olympic Games) for their general public and take measures to ensure that these events are accessible on free-to-view television. These lists can be submitted to the European Commission for approval in order to get recognition in other Member States. At present, the lists in eight Member States approved by the Commission (Austria, Belgium, Finland, France, Germany, Ireland, Italy and United Kingdom) are in force.
Short news reports in television broadcasting (Article 15)
In order to promote the free flow of information, the Directive requires that any broadcaster established in the EU has guaranteed access to exclusively transmitted events of high public interest for the purpose of transmitting short news reports.
Regulatory cooperation between independent regulators (Article 30)
The Directive refers to both the existence and the role of national independent regulators (but does not include rules defining standards of independence). To ensure the correct application of the AVMS rules, these regulators must cooperate closely both among themselves and with the Commission, notably on issues of jurisdiction.