The Implementation of the Media Services Directive by National Regulatory Authorities: National Responses to Regulatory Challenges

• Author: Jenny Metzdorf
• Pages: 88-104

2014

Jenny Metzdorf

88

2

The Implementation of the Audiovisual

Media Services Directive by National

Regulatory Authorities

National Responses to Regulatory Challenges

by Jenny Metzdorf,* PhD student at the Faculty of Law, Economics and Finance of the University of

Luxembourg

© 2014 Jenny Metzdorf

Everybody may disseminate this ar ticle by electroni c means and make it available for downl oad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Jenny M etzdorf, The Implementati on of the Audiovisual Media Serv ices Directive by Natio nal

Regulatory Authorit ies National Responses to Regulatory Chall enges, 5 (2014) JIPITEC 88, para. 1.

Keywords: Audiovisual Media Services Directive, VOD Services, VOCCCD services

A. Introduction

1 The Audiovisual Media Services Directive (AVMSD)

has been the subject of an enormous body of

      

the various pillars upon which the cross-border

provision of audiovisual media services is built in the

European Union (EU), its rules and approach have

been investigated in-depth. When the Directive was

initially adopted in 1989, it regulated certain aspects

of broadcasting envisioning a market of “television

without frontiers”.1 In 2007, the Directive’s scope was

extended to on-demand audiovisual media (VOD)

services.2 It henceforth distinguished between linear

(television broadcasting) and non-linear (VOD)

services applying different sets of rules to each. The

break-through which was expected of the Directive

in light of convergence of media, however, has

not been accomplished. Shortly after its adoption,

Abstract: The Audiovisual Media Services

Directive (AVMSD) which regulates broadcasting

and on-demand audiovisual media services is at the

nexus of current discussions about the convergence

of media. The Green Paper of the Commission of April

2013 reflects the struggle of the European Union to

come to terms with the phenomenon of convergence

and highlights current legal uncertainties. The

(theoretical) quest for an appropriate and future-

oriented regulatory framework at the European

level may be contrasted to the practice of national

regulatory authorities. When faced with new

media services and new business models, national

regulators will inevitably have to make decisions and

choices that take into account providers’ interests

to offer their services as well as viewers’ interests

to receive information. This balancing act performed

by national regulators may tip towards the former

or latter depending on the national legal framework;

social, political and economic considerations; as well

as cultural perceptions. This paper thus examines

how certain rules contained in the AVMSD are applied

by national regulators. It focuses first on the definition

of an on-demand audiovisual media service and its

scope. Second, it analyses the measures adopted with

a view to protection minors in on-demand services

and third discusses national approaches towards the

promotion of European works in on-demand services.

It aims at underlining the significance of national

regulatory authorities and the guidelines these adopt

to clarify the rules of a key EU Directive of the “media

law acquis”.

The Implementation of the Audiovisual Media Services Directive by National Regulatory Authorities

2014

89

2



of the emergence of Connected TV which seamlessly

weaves the Internet and broadcasting together on

the television screen.3 So far, the Commission has

clung to the AVMSD and its graduated approach

to regulation as the market potential of Connected

TV and similar services is gradually unfolding. The

Commission’s Green Paper of April 2013 which

indeed asks crucial questions in fact reveals a high

level of uncertainty with regards to the current rules

and future approach to Connected TV and other

hybrid services.4

2 

(NRAs) assume a pivotal role. Charged with the

regulation of audiovisual media services, they ensure

the application and implementation of the AVMSD

on a daily basis. While their structure, composition

and mandate are contingent on national legal

frameworks, they generally act as intermediaries

between the state and the industry. Where the

national media laws transpose the Directive

verbatim, the position of NRAs is enhanced. This

is particularly true for rules couched in vague and

general terms which have to be interpreted and

      

circumstances at national level. NRAs thus enjoy a

certain margin of discretion which is constrained

mostly by the scope of the mandate granted by the

state and the freedoms associated with the former.

The establishment by the Commission of a European

Regulators Group for Audiovisual Media Services in

February 2014 demonstrates increasing awareness

   

in shaping the future regulatory landscape.5 The

Regulators Group constitutes, inter alia, a forum

for “exchange of experience and good practice”.6

This paper starts from similar premises employing

a bottom up lens by examining the guidelines and

codes adopted by NRAs as well as their practice.

3

To this effect, this paper sketches the most

pressing challenges NRAs are currently facing in

implementing the AVMSD at the grassroots. In

   

an (on-demand) audiovisual media service in

order to determine the regulatory remit of NRAs.

     

is of enormous practical effect as it will identify

the set of rules (and possibly laws) applicable to

relevant providers. Secondly, this paper explores

the measures taken by NRAs to protect minors

from unsuitable content contained in non-linear

services and thirdly, it details the activities of NRAs

in respect of the promotion of European works in

such services. Sections two and three illustrate the

graduated approach to regulation which regulates

television broadcasting more intensively than on-

demand services. Succinctly, this paper endeavors

to contribute to the debate about future regulatory

responses to an ever more convergent media

environment and a possible revision of the AVMSD



B. Criteria for VOD services

I. The definitions outlined

in the AVMSD

4

Although a comprehensive (horizontal)7 reform of

the TwFD in light of growing convergence of media

was rejected in 2007 in favour of the maintenance of

  

application was slightly extended to cover television

and “television-like”8 services subsumed under the

term “audiovisual media service”.9 In line with Art.

1 (1) (a) (i) AVMSD, an audiovisual media service is



 

which is under the editorial responsibility

10

of a media service

provider and the principal purpose of which is the provision

of programmes, in order to inform, entertain or educate, to



11

5

Thus, audiovisual media services are further



on-demand audiovisual media services (non-

 

AVMSD respectively and audiovisual commercial

communication as stipulated by Art. 1 (1) (a) (ii) in

conjunction with Art. 1 (1) (h) AVMSD. While a VOD

service may be viewed at the “moment chosen by

the user and at his individual request”12, broadcasts

are transmitted simultaneously to the general

public “on the basis of a [chronological] programme

schedule”13. The differentiation between linear and

non-linear services is crucial for the application of

the graduated approach to regulation.14 Accordingly,

VOD services are regulated more lightly whereas a

tighter regime applies to television broadcasting.

On top of the complexities of distinguishing linear



when delineating audiovisual media services from

other kinds of services exempted from regulation,

the boundaries of which are continually blurring.15

 

not apply to “any form of private correspondence”,

“games of chance (…), other forms of gambling

(…) and search engines”.16 It also exempts user

generated content which is shared or exchanged

“within communities of interest”.17 Where “text-

based services” (merely) accompany an audiovisual

service, the Directive applies.18 However, recital 28

AVMSD indicates that “the scope of this Directive

should not cover electronic versions of newspapers

and magazines”. Although the preamble to the

AVMSD is, in principle, non-binding, it nevertheless

serves as a valuable point of reference, particularly