CMS reported earlier this year on recent updates to the Audiovisual Media Services Directive ("the Directive"), which regulates audiovisual media services across the EU. The Directive ensures that audiovisual content can be received freely throughout the EU once regulated in a "home" Member State and sets a minimum set of rules to be applied by each EU Member State regulator.
The Directive is reviewed and updated regularly to keep abreast of industry developments, with the most recently revised Directive in force since December last year. Member States, including the UK, have been given a deadline of 19 September 2020 to transpose the new rules into national legislation. Whilst Brexit adds uncertainty for the UK, the terms of the proposed Withdrawal Agreement require the UK to implement the amending Directive, and for the time being, it is safest to assume that the Directive (or very similar rules to aid our alignment with the EU post-Brexit) will be transposed into national legislation at some point in the near future.
The government is running a consultation until 22 August 2019 on specific aspects of implementing the directive and seeking detailed responses, including the potential impact on business and suggestions for alternative approaches. Whilst the consultation questions are specific to the government's plans for implementation, the briefing document makes it clear that respondents are also welcome to raise any other concerns they may have with the Directive.
Some of the proposed changes are already accounted for in existing and/or proposed legislation the UK government planned to enact independently of the Directive. Other, optional changes are not necessarily being adopted by the UK, for example an area of particular concern that we raised previously: the proposed levy scheme, or so-called "Netflix tax". This allows any Member State which requires service providers based in their jurisdiction to contribute to a national content investment fund to require service providers based outside their territories to also contribute where their services are broadcast to audiences in that Member State. The government has indicated that there are no plans to introduce levies in the UK, although it is not yet clear what approach other countries will take or whether Brexit may result in a change in the UK government's approach. The most significant development in the Directive by the government's estimation is extending the scope to cover video-sharing platforms (VSPs) and the government has indicated an intention to implement the necessary rule changes using the Online Harms White Paper, which is also under consultation until 1 July 2019. We therefore suggest those interested also respond to that consultation here.
The Department for Digital, Culture, Media and Sport (DCMS) have announced that they will be holding sessions, the first this Friday (21 June) and the second on 5 July, at which they will present the government's intended approach to implementation and offer stakeholders an opportunity to discuss the proposals. CMS will be sending a representative and we would urge any clients with particular concerns, or who would like to know more, to attend one of the sessions. For more information on the proposals and copies of the consultation documents, and to register to attend the stakeholder sessions, please see the government information pages provided here.
Article co-authored by the CMS Trainee Solicitor Charlotte Perowne.