Broad changes to the broadcasting (and other video media) rules: the revised AVMS Directive in context

Europe

On 6 November 2018, the European Council approved a slew of long-awaited changes to the Audiovisual Media Services Directive (“the Directive”), the seminal piece of EU legislation regulating audiovisual media services across the European Union. The revised Directive, which entered into force on 18 December 2018, promotes European content, injects flexibility into existing advertising rules, and regulates video-sharing platforms, among other changes.

This article provides a brief overview of the revisions to the Directive and comments on the practical implications of these changes for media service providers.

Key changes to the AVMS Directive

The Directive ensures that audiovisual content is able to be freely received throughout the EU once regulated in a “home” Member State and, to facilitate this, applies a minimum set of rules which every EU Member State regulator must apply. European legislators regularly review and update the Directive to try to keep pace with technological advancement and modern content consumption preferences. In 2007, the Directive was updated to include not only traditional linear television broadcasting services, but also on-demand programming (e.g., Netflix or Amazon Prime). Now, more than 10 years on from the last major update, the Directive has been revised again to include the following changes:

  • Video-sharing platforms:
  • Country of origin principle:
  • Promotion of European content:
  • Levies:
  • Changes to advertising rules:
  • Protection of minors:
  • Prominence of general interest services
  • Access services
  • Independent regulators:

Conclusions and commentary

The above changes to the Directive are significant. Given that video now makes up 80% of consumer internet traffic, video-sharing platforms should not be permitted to abdicate responsibility or escape regulation simply because they are unconventional content platforms. Many of the larger VSP providers would argue that they already apply protection measures equivalent to those under the revised Directive and thus, the new requirements on video-sharing platforms may not be as onerous or as novel as they might appear. Nevertheless, now the principle of regulating VSPs has been established, it is easy to see a route to more onerous regulation at the next review of AVMS.

Linear broadcasters had hoped for greater deregulation and remain disappointed that a number of specific additional regulatory burdens still fall on them, so that the notional “level playing field” with on-demand services is still some distance away.

Finally, following the acceptance that levies will fall outside of the country of origin principle, there is great nervousness that further aspects of regulation will in future be subject to the same approach, materially reducing the benefits that the Directive has previously afforded to service providers.

EU Member States have until September 2020 to implement the changes into national law. However, it is worth noting that the position of the UK as regards the AVMS Directive will be less clear assuming that the UK leaves the European Union on 29 March 2019. For more information on broadcasting and video on demand in the case of a No-Deal Brexit, please click here.