On October 2, 2018, the European Parliament approved the new audiovisual media services (AVMS) directive. The directive is expected to take effect by the end of 2018, once the EU Council has given its formal approval, and then EU member states have 21 months to adopt it into national law.
The AVMS directive extends regulations for broadcasters to online video providers, such as Facebook, Netflix, and YouTube, as well as to live streaming on video-sharing platforms. The Council of EU Ministers still needs to give formal approval in the coming weeks before the directive takes effect at the end of 2018. Following this, EU member states will have 21 months to incorporate the changes into national law.
There have been calls for some time to level the playing field between traditional broadcasters and online video providers, and these rules certainly aim to address this. They require AVMS providers to take appropriate steps to combat content that incites violence, hatred, or terrorism, while gratuitous violence and pornography will be subject to the strictest rules. Additionally, video-sharing platforms will need to react more quickly when content is reported by users as harmful. This would have to be made possible through the creation of a transparent, easy-to-use, and effective mechanism to allow users to report or flag content, but platforms will not be required to go so far as to introduce automatic filtering of uploaded content; this was in the original proposal but was removed in September 2018.
The updated law also includes provisions for advertising, which can take up a maximum 20% of daily broadcasting, as well as provisions for accessibility, integrity of a broadcaster's signal, strengthening regulatory authorities, and promoting media competences. In addition, the law includes measures on product placement in children's TV programs, content available on video-on-demand (VOD) platforms and a personal data protection mechanism for children. This final step ensures that the data collected by media providers on children cannot be processed for commercial use, such as profiling and targeted advertising.
Under the new rules, the EU Parliament approved a 30% quota for European productions in the catalogs of VOD platforms. This is up from the original proposal of 20%. More than half of EU member states already have mandatory European content quotas, but these range from 10% to 60%. The aim is for the 30% quota to provide greater harmonization at the EU level so that all Europeans can have access to European AV content. The platforms must also contribute to the development of EU AV content – this can be through investing directly in productions or by contributing to national funds. The level of contribution in each country must be proportional to the on-demand revenues in that country.
Finally, the updated directive keeps the County of Origin principle, which allows international broadcasters to transmit from any EU state to all other EU states. It is worth noting that the UK will not be subject to the AVMS directive after its exit from the EU, and therefore the Country of Origin principle, which is the most significant part of the broadcasting rules, will not apply here. However, the UK government has confirmed in a white paper that domestic legislation will make provisions for Ofcom licenses to continue to be valid following Brexit. The challenge here though is that the Country of Origin principle cannot just exist in UK law. It will only stand if the EU27 continue to allow UK-based companies to broadcast to their countries under UK rules, and if the UK allows companies based overseas to broadcast there under EU rules. This will need to be negotiated under a new free trade agreement with the EU.
EU Copyright Reforms and Their Impact on Audiovisual Services, TE0007-001181 (August 2017)
How Pay-TV Regulation Is Evolving, GLB005-000012 (December 2017)
The Regulatory Environment for Platforms, TE0007-001003 (March 2016)
Sarah McBride, Analyst, Regulation