Facebook and YouTube must adhere to new EU Audiovisual Rules


Following a long review by European law-makers, a new political agreement on the Audiovisual Media Services Directive (AVMSD) has been reached. The AVMSD now encompasses a broader set of audiovisual services intended to cr​eate a regulatory environment that is fairer for all players in the audiovisual sector. The scope of this regulation originally captured broadcasters and on-demand services in the European Union. Now, the scope has been broadened to ​include video-sharing platforms like YouTube, Facebook, and others.

This post summarises the new rules, and explains how they are intended to strengthen European culture and independent regulatory regimes. It also highlights ​ two entirely different industry reactions to the ​new rules. 

​Background


Over the years since its original implementation in 2009, many questions had been raised as to the efficacy of AVMS for ensuring a level playing field. A review was proposed just four years later, and it has taken until now to get a final agreement on the updated rules. Since 2009 the media landscape shifted dramatically. Today, millions of Europeans, especially young people, watch content online, on demand and on different mobile devices.

The new agreement was finalised by the European Commission, the European Parliament and Council on 6th June 2018. The current AVMSD will continue to apply until the revised Directive enters into force. The revised text will be formally adopted by the two institutions in autumn 2018. Once formally adopted and following the date of publication in the Official Journal, Member States will have 21 months to transpose the new Directive into their national legislation.

Summary of the New Rules

​The new rules give more flexibility to broadcasters in terms of advertising, protecting minors and tackling hate speech in all audiovisual content. Strengthening the promotion of European audiovisual works and ensuring the independence of audiovisual regulators is also covered​.

The most dramatic change is that the scope of application has been extended to also cover video-sharing platforms such as YouTube and Facebook.

These are defined as a commercial service addressed to the public:

  • where the principal purpose of the service (or an essential functionality of such service) is devoted to providing programmes and user-generated videos to the general public, in order to inform, entertain or educate;
  • which is made available by electronic communications networks; and
  • where the content is organised in a way determined by the provider of the service, in particular by displaying, tagging and sequencing;


As a result, audiovisual content on services such as YouTube and Facebook will fall under the scope of the revised Directive.

While newspaper websites remain outside of scope of the Directive, standalone parts of newspapers' websites ​that feature audiovisual content or user-generated videos will also be considered as video-sharing platforms. The exception is occasional use of videos on newspapers´ websites, blogs and news portals which are out of scope of the Directive.

The new obligations that will be imposed on video-sharing platforms include:

  • protecting minors from harmful content (which may impair the physical, mental or moral development); access to which would have to be restricted;
  • and​ protecting the general public from incitement to violence or hatred and content constituting criminal offences (public provocation to commit terrorist offences, child pornography and racism or xenophobia).


​These rules complement the existing requirements of the E-Commerce Directive. This includes flagging and reporting mechanisms, age verification systems, systems to rate the content by the uploaders or users, or parental control systems, as well as clarification in the terms and conditions of the platform of a prohibition for users to share the content citizens should be protected from. In addition, video-sharing platforms would must respect certain obligations regarding commercial communications and be transparent about such content declared by the users when uploading.

Under the co-regulatory arrangements, Member states are able to adopt even stricter rules. 

The new rules aim to strike a balance between consumer protection, more specifically the protection of the most vulnerable consumers (for example minors), and a more flexible system for TV broadcasters, taking into account new market realities. Children watch less TV and more and more on-demand and online videos. However, the current AVMSD protects them more on TV and less in the online world. This inconsistency will now be ​addressed.

The proposed rules strengthen provisions to protect children from inappropriate audiovisual commercial communications of foods high in fat, salt and sodium, and sugars, by encouraging codes of conduct at EU level, where necessary.

Tobacco advertising remains forbidden in all types of media. For alcohol advertising, the co-legislators agreed also to encourage further development of self- or co-regulation, if necessary also at EU level, to effectively reduce the exposure of minors to such advertisements. This does not prevent Member States from applying stricter rules such as, for example, banning alcohol advertisements or adopting other measures.

​Strengthening European Culture


Under the new rules, TV broadcasters will continue to be obliged to broadcast at least 50% share of European works (including national content) in viewing time.

Video-on-demand services – which already have to promote European works under current rules – are subject under the revised Directive to more specific obligations: they need to ensure at least 30% share of European content in their catalogues and should give a good visibility (prominence) to European content in their offers.

There is, however, a mandatory exemption for companies with a low turnover and low audiences.

According to the Commission, strengthening the promotion of European works for on-demand services will lead to a broader and more diverse offer for Europeans. This will have a positive impact on cultural diversity and bring more opportunities for European creators. The rules in force already foresee that promotion of European works can also be carried out, amongst other ways, through financial contributions to the production and rights acquisition of European works. Member States have the option to require media services under their jurisdiction to contribute in this way.

It is a fact that broadcasters are investing more in European works than video on demand providers. While European TV broadcasters invest around 20% of their revenues in original content, this figure represents less than 1% for on-demand providers. Mandatory shares of European works in catalogues of on-demand services already exist in more than half of EU Member States.

Therefore, when Member States impose financial contributions on broadcasters that are not under their jurisdiction, the investment of those broadcasters in European audiovisual works should be taken into account, with due consideration of the principle of proportionality. This is why minimum harmonisation at EU level is needed, so that all Europeans can have access to European audiovisual content.

There are a wide range of tools to ensure visibility of European works, including:

  • indicating the country where a film or series comes from;
  • ​providing a dedicated section for European works that is accessible from the service homepage,
  • ​providing possibilities for searching for European works by means of a search tool made available as part of the service;
  • ​placing information and materials promoting European works, including in the home/front page; using trailers or visuals;
  • ​using European works in promotional campaigns for the service; 
  • or promoting a minimum percentage of European works in the service's catalogue e.g. by means of banners or similar tools.

Strengthening Independent Regulators

The Directive also includes a requirement for Member States to have independent regulatory authorities ​that oversee audiovisual media services meaning that they must be legally distinct from the government and functionally independent ​in relation to the exercise of the tasks. They must exercise their powers impartially and transparently, especially with regard to media pluralism. Their powers should be clearly defined by law, and they should have adequate resources to carry out their duties effectively under AVMSD:

The new rules reinforce the role of the European Regulators Group for Audiovisual Media Services by establishing it in the Directive and giving it a clear role in shaping and preserving the internal market. The Group will serve as a platform for national regulators in the exchange experiences and best practices on the application of the regulatory framework for audiovisual media services.

Industry Reaction

Two ​European industry bodies gave ​their contrasting views of the new developments.

The Association of Commercial Television in Europe (ACT) believes that the AVMSD review could have done much more to sustain Europe’s broadcasting sector, contending that broadcasters still remain far more heavily regulated than video sharing and other online platforms.

“Commercial Television has been an active champion of a revised AVMSD that would provide a legal environment to address shifting and complex market realities. While the new measures bring welcome flexibility on advertising and signal integrity, we have to conclude that on balance the outcome does not favour broadcasters,” said ACT’s Director General, Grégoire Polad. Quoting a March 2018 Eurobarometer report on fake news and online disinformation ¨respondents perceive traditional media as the most trusted source of news,", while "the least trusted sources of news are video hosting websites (27%) and online social networks (26%)."

The ACT says the review has failed to support them with a new, more equitable regulatory balance between broadcasting and online regulation. Instead the revised Directive applies very limited new editorial responsibilities to online platforms, while applying new administrative burdens, more quotas and a levy system to broadcasters and VoD services that leaves less financial room for investment.

The European Broadcasting Union, Europe`s association for public broadcasters, has welcomed the new rules and political agreement, commending the fact that it maintains key provisions of the AVMS Directive to secure access to impartial news, information and major events, as well as ensuring pluralism, diversity and inclusion and levels up the rules protecting minors regardless of whether they watch linear or catch-up audiovisual content. Simultaneously the agreement modernised the Directive's rules ensuring both changing audience habits and the increased role of new audiovisual platforms were taken into consideration.  "European policy-makers have enabled governments and regulators from across Europe to continue to support an open, diverse and vibrant audiovisual media sector,” said EBU Director General Noel Curran.

The EBU welcomed the updating of the AVMS Directive, as it:

​1) Protects the integrity of content by requiring AVMS providers' consent to modifications or commercial overlays to their content by third parties. At a time when citizens' trust in online information continues to erode, protecting the integrity of content is key to further support trust in professionally edited media content. With an estimated 18 billion Euros spent by EBU Members on programmes in the EU, and 83% of this total expenditure being allocated to the production of original content, we believe that this rule will contribute to securing high levels of investments in original European content by AVMS providers. 

2) Introduces a new approach for video-sharing platform services. The EBU agreed that it was essential that a basic set of rules (on the protection of minors, on the fight against hate speech as well as on advertising) were applied across video-sharing platforms in a step to strengthen fairness in the European audiovisual media sector in Europe.

The robustness of the revised AVMS Directive will depend on the implementation of the proposed rules by national governments and regulators. To that end, the EBU and its Members call upon Member States to ensure a swift and effective implementation and enforcement of the agreed AVMS Directive. In contrast, the ACT ​wants an urgent review.

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