Seminar organised by the CEPS Digital Forum, 15 June 2016
With the new proposal to reform the Audiovisual Media Services Directive (AVMSD) released on last May 25, the LSE Media Policy Project partnered with the Centre for European Policy Studies (CEPS) to organise this conference. Owing to the increasing diversity of content delivery models and changing patterns in production and consumption of audiovisual goods, regulators are refining EU rules with the intend to ensure fair market competition by potentially extending them to new services while safeguarding key public interest principles. Chaired by Sally Broughton-Micova (LSE Media Policy Project & UEA Centre for Competition Policy) and Colin Blackman (CEPS), the event aimed at bringing to Brussels voices from some of the Member States with smaller audiovisual media markets to respond to the Commission’s proposal.
As a keynote speaker, Lorena Boix Alonso (Head of Converging Media and Content, DG Connect) clearly explained the rationale behind the new proposal, while scholars from Hungary, Estonia, Spain, Poland and other countries presented their research findings and broadened the discussions on the future of AV media services in Europe. Discussants from both public services and the private sector were also invited to comment on the trickle-down effects of the proposal on their activities.
The scope of the Directive
While most of the participants praised the Commission's efforts to redesigning technology-neutral and size-based rules to level the playing field for all players active in the media landscape, some speakers however pointed out the lack of clarity regarding specific video-sharing and social-media platforms. These platforms are particularly problematic since ‘User-Generated Contents’ (UGC) and hybrid formats blur distinctions between commercial and amateur communications. Other participants challenged the ‘country of origin’ principle (COO) considering cases where non-EU based channels are registered in one EU jurisdiction, yet targeting the audiences of other Member States with controversial content. They suggested that licensing could solve parts of the problem, following a ‘country of destination’ principle, abiding by the legislation of the country where the target audience is based. Others saw a need to enhance liability of advertisers already present in the EU market.
Based on the AVMD ‘REFIT evaluation’ and public consultation, the Commission reaffirmed the COO principle, perceived as an "internal market success story". They however committed to simplify rules of jurisdictions and information sharing between market operators, Member States and EU authorities. Therefore, it would be easier for national authorities to identify their jurisdictional scope and, for instance, derogate from the COO to adapt to their national specificities (e.g. public security, public health system). Rules were also aligned across different services (linear and non-linear such as on-demand), but the Commission cautiously refrained from harmonising provisions pertaining to national cultural policies. Mrs Boix Alonso stressed the initial legislators’ intention to draw future-proof rules, avoiding strict definitions nor targeting specific business models. It was explained, for instance, that Facebook did not fall into the scope of the current revision, since its very first purpose was not deemed as to distribute audiovisual content, and given that notions like ‘public’ and ‘control over the content’ were not convincingly qualified.
In extending the scope of the directive to services such as on-demand services and video-sharing platforms, the Commission stayed in line with the intermediary liability regime (i.e. articles 12 to 14 of the E-commerce directive) and favored co-regulatory mechanisms, allegedly to preserve a very fast changing ecosystem. They notably distinguished pure hosting functions from content producers and channel managers engaged in editorial activities, who would be subject to more stringent obligations defined by co-regulatory codes of conduct.
Media Plurality and Diversity
Another highly controversial aspect of the proposal lies in the provisions for the promotion of European works: Ms Boix Alonso explained that extending quotas for European content in on-demand catalogues (20%) was conceived as a necessary complement to the obligation of giving prominence to European productions. These provisions stemmed from the public consultation where numerous parties allegedly saw European cultural diversity in jeopardy. For the sake of inclusiveness and representativeness, some speakers saw the need to explicitly include the promotion of cultural diversity within Member States and a better recognition of proximity broadcasters in their role of defining local and regional identities.
Likewise, the importance of conducting independent studies assessing market concentration, media transparency, viewers’ inclusiveness and independence of public services was firmly restated. Participants also saw the need to complement studies focusing on the offer (e.g. EU Media Pluralism Monitor) with more attention dedicated to diversity from a user perspective. Interestingly, some participants advocated innovative solutions for supporting the diversity of European content beyond the recourse to quotas and rigid rules such as inflexible financing obligations. Some participants also stressed some conflicting policy goals lying between the AVMSD and some aspects of the Copyright framework, pointing that geo-blocking practices were rendering audiovisual services inaccessible outside the country of origin as a result of copyright territorial restrictions.
Importantly, the Commission reinforced ERGA’s role in monitoring implementation and more specifically in ensuring media freedom and pluralism. ERGA was seen as a useful expert group able to enhance governance mechanisms with independent regulators, therefore complementing the so-called ‘contact committee’ (Article 29 AVMD) that maintain coordination among EU and national authorities. It will have an even more important function in shaping and preserving the internal market, for example in assessing codes of conduct and in taking part in the COO derogating procedures. However, some participants deplored a lack of ambition, seeing a missed opportunity to more definitely support media freedom and independence of national regulators by adding an explicit provision in the text.
Consumer Protection
Ubiquitous screens may pose new parenting issues, but also new regulatory challenges. While younger generations consume AV content in a very different way than their elders, children are increasingly exposed to hidden commercial, and sometimes, inappropriate content. In tackling this growing exposure via video-sharing platforms, the Commission announced the (re)launch of the ‘alliance to better protect minors online’. They also unveiled, on May 31, a code of conduct that includes a series of commitments to combat the spread of illegal hate speech online in Europe. However, participants called for a stronger framework for commercial communications, including a stricter definition of 'harmful content' in the online environment.
Regarding products placements, sponsorship or affiliate content, legislators made rules more flexible for TV broadcasters by reinforcing co-regulatory solutions. However, commercial broadcasters challenged the Commission’s position, claiming that more streamlined rules would be needed to incentivise transparency while preserving editorial independence, rather by favoring a qualitative approach instead of quantitative requirements. They notably saw sponsorship and products placement as a critical source of finance for creators, enabling vloggers and amateurs to create innovative content and to scale up.
In concluding, Sally Broughton-Micova welcomed a more service-oriented approach standing out from the draft proposal. Nonetheless, she alerted against potential drawbacks at the Council review, praised legislators to exploring innovative solutions that could help incentivise the production of audiovisual content in small European countries. She notably called for a more widespread use of international or European co-production agreement models, in order to tackle the recurrent question of attractiveness from smaller market countries.
The CEPS Digital Forum is a multi-stakeholder platform aimed at raising the level of debate about the policy challenges that arise from the European Commission's Agenda for Europe. It brings together academics, telecommunications operators, broadcasters, equipment manufacturers, content providers, application producers, internet players, national regulators and European institutions to enable a constructive discussion on how to achieve a successful transition to a balanced and inclusive information society and exploring more broadly the implications of an hyperconnected society.
