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

Author:Jenny Metzdorf
Pages:88-104
SUMMARY

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)... (see full summary)

 
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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

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