Getting up to Speed on Media Convergence Regulation

dreamstimemaximum_18070081As Europe’s lawmakers begin getting to grips with the legal challenges of ´media convergence´ ahead of a review of the Audiovisual Media Services Directive (AVMSD) slated for 2015, two excellent publications set the backdrop for understanding the issues on the agenda.

As Europe’s lawmakers begin getting to grips with the legal challenges of ´media convergence´ ahead of a review of the Audiovisual Media Services Directive (AVMSD) slated for 2015, two excellent publications set the backdrop for understanding the issues on the agenda.

Converged Media: Same Content, Different Laws?, published in 2013 by the European Audiovisual Observatory, looks at the specific issue of so-called smart TVs which are capable of delivering both linear (scheduled) and non-linear (on-demand) content. The report highlights why existing regulatory regimes increasingly require attention given that these two types of content are currently regulated by the same legal instrument, namely, AVMSD.

This report focuses concretely on the challenges for the current EU legislative framework and asks whether it is adequate to cover today´s convergent devices. The legal challenges sit squarely in the realm of advertising, content services and the protection of minors.

As it relates to advertising, AVMSD “itself creates significant differences in the levels of regulation, with less stringent rules for non-linear media services,” according to Alexander Scheuer of the European Institute for Media Law, author of the main article in this report.

In the context of the regulation of technology, he points out that four different instruments have a bearing on connected television: the AVMSD for media content, the E-Commerce Directive for transmission services, the Telecoms Package for electronic communication services and networks and, lastly, the Directive on radio equipment and telecommunications terminal equipment for end devices. This is an obviously complex area with overlapping regimes complicated by individual national implementations and overarching concerns over the protection of children and safeguarding public service broadcasting.

Scheuer also points out that, whereas the practice of television regulation in Europe is a long-standing one, “providers of on-demand (audiovisual) services come under less scrutiny, partly because, in some countries, even though there is no licence obligation, no instruments are in place or used to cover such providers.”

But how to define an ´on-demand´ service in the first place? In the context of AVMSD, the question of ´scope´ has been much debated, and indeed it has varied from country to country. But in the context of so much online video ´on-demand´ on the internet, where does one draw the line? According to the Directive, a set of cumulative criteria determine which video-on-demand services are ¨in scope¨, and there are a number of exclusions as well. But to be regulated under the AVMSD the general characteristics must be met, in that they are ¨‘television-like’, i.e. that they compete for the same audience as television broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive. In the light of this and in order to prevent disparities as regards free movement and competition, the notion of ‘programme’ should be interpreted in a dynamic way taking into account developments in television broadcasting.¨

So to help with interpreting that, another EAO publication attempts to provide a framework for understanding where the debates are heading. In What is an On-Demand Service? legal analyst Francisco Cabrera-Blázquez kicks off by explaining that with the current regulatory approach “the Directive leaves outside of its scope most of the audiovisual content available on the internet.” He also underlines the “vagueness” of the AVMSD and proceeds to analyse the solutions found by various European countries in their transposition of Directive into their own national legislation.

In the UK, for example, Ofcom delegated the regulation of on-demand programme services (ODPS) to an independent co-regulator, The Authority for Television On Demand (ATVOD). Ofcom retains, however, final say in determining whether or not a service qualifies as an ODPS. In Italy, a financial parameter has been introduced in the sense that only those non-linear services with an annual revenue of over 100,000 EUR qualify. Interestingly, the regulator of the French speaking Community of Belgium (the CSA) has introduced the conceptual difference between open platforms (freely accessible such as via the internet) and closed platforms accessible only with the permission of the distributor (such as cable networks).

Cabrera closes his analysis by focusing on the unsettled boundaries of the AVMSD, looking at the solutions to the (50 shades of) grey areas that remain unsolved. Classification problems are posed by newspaper websites providing video, by user-generated content (UGC) platforms/professional channels on UGC and also by download-to-own/download-to-rent services. In Austria, for example, the video section of the “Tiroler Tageszeitung” newspaper was judged by the national regulatory authority to be an on-demand service, in spite of the paper’s appeals to the contrary. In the UK, extracts from the popular TV programme about cars, “Top Gear”, were made available on its official YouTube channel. ATVOD decided that the BBC had contravened the Communications Act by failing to register this YouTube channel as an on-demand programme service. The decision was however overturned by Ofcom based on the judgement that these extracts did not resemble TV programmes (because of a very short format and lack of opening and closing credits, for example). Indeed, the ´professionalism´ of online video services in the form of opening and closing credits, and use of the word ´TV´ in their presentation, etc, have become key criteria for defining whether a service is TV-like or not.

The author also refers to the European Commission´s Green Paper on Audiovisual Convergence, which closed in October 2013. This consultation focused on the challenges of a converging audiovisual world, asking, for example, “whether there is a need to adapt the definition of AVMS providers and/or the scope of the AVMSD, in order to make those currently falling outside the scope subject to part or all of the obligations of the AVMSD.”

In Converged Media, Same Content, Different Laws, Scheuer predicted “a fascinating continuation of the debate, which he expected would intensify after the European Parliament elections and the appointment of a new European Commission in 2014.”

Those debates are now indeed underway and will set the legislative agenda for 2015. Regulators are increasingly concerned about foreign providers of on-demand services who remain are totally out of EU jurisdiction, and begin to consider a radical change to introduce ´country of destination´ rules. They also want to guarantee ´prominent´ positions within EPGs for the content of public service broadcasters. See separate article here.

For getting up to speed on the Europan regulatory framework that impacts ´connected TV´ and ´TV-like´ on-demand video services, these excellent publications by the European Audiovisual Observatory offer a perfect place to start.