Broadcasting in the EU
On 6 November 2018, the European Council approved significant modifications to the Audiovisual Media Services Directive (the Directive), which represents the primary EU legislation overseeing audio visual media services. The revised Directive, which entered into force on 18 December 2018, emphasizes European content, provides greater flexibility for advertising guidelines, and establishes regulatory frameworks for video-sharing platforms.
Overview of the Directive
The Directive guarantees that audio visual content distributed throughout the EU receives consistent treatment once regulated in a “home” Member State. It applies uniform baseline rules across all EU Member States. European legislators periodically update the Directive to reflect technological changes and evolving content consumption patterns. The most recent revision extends beyond traditional linear television and on-demand programming to address contemporary platforms.
Video-Sharing Platforms
The scope now encompasses video-sharing platforms (VSPs), defined as services providing programmes or user-generated videos without editorial responsibility from the platform provider. Examples include “YouTube and similar platforms, as well as content-sharing functions on social media services such as Instagram.” VSPs face oversight by national media regulators, though co-regulation is encouraged. Obligations focus on “protection of minors, and protection for all citizens from hate speech and incitement of terrorist offences,” requiring “appropriate measures.”
Country of Origin Principle
The revised Directive clarifies jurisdictional determinations by defining “editorial decision” as one “taken on a regular basis for the purpose of exercising editorial responsibility and linked to the day-to-day operation.” Rather than requiring a “majority” of workforce, the Directive maintains language regarding a “significant part,” emphasizing those undertaking “programme-related” activities.
Enhanced cooperation procedures address forum-shopping disputes. Member States must establish and maintain registers of media service providers within their jurisdiction.
Promotion of European Content
On-demand service providers must ensure “at least 30% of their catalogue is reserved for European content,” though measurement methodology remains undefined. Member States must also guarantee prominence for European works through mechanisms like dedicated sections or search functionality.
Exceptions apply for services with minimal turnover or audiences, and small enterprises. Member States may waive quotas where “impracticable or unjustified by reason of the nature or theme” of services.
Levies
A significant change permits contributions to national content investment funds. Member States can require contributions from service providers based elsewhere if they target local audiences—the so-called “Netflix tax.” This represents a substantial departure from country-of-origin principles, raising concerns about precedent-setting for future regulatory disputes.
Advertising Rule Changes
Broadcasters gain flexibility to adjust advertising quantities according to programming nature. The prior 12-minute-per-hour cap is relaxed, though advertising remains limited to a maximum of “20% of the total broadcast period across each of two separate periods (06.00 to 18.00 and 18.00 to 00.00).” Member States retain authority to impose stricter limits.
Protection of Minors
Both linear and on-demand providers must restrict access to content potentially harmful to minors’ “physical, mental or moral development.” Enhanced protections address commercial communications for foods high in fat, sodium, and sugars.
Prominence of General Interest Services
Member States may implement measures ensuring appropriate prominence for audio visual media services of “general interest,” allowing elevation of public service channels and on-demand services in electronic programme guides—addressing longstanding tensions between public broadcasters and platform operators.
Accessibility Services
The revisions substantially strengthen accessibility obligations. Member States must ensure both linear and on-demand services become “continuously and progressively made more accessible to people with disabilities,” primarily those with visual or hearing impairments. Rather than implementing percentage targets, Member States require media providers report regularly to national regulators, with national regulators reporting to the Commission every 3-4 years.
Independent Regulators
The European Regulators Group for Audiovisual Media Services (ERGA) assumes an expanded role, including providing technical expertise, facilitating information exchange, and offering opinions on implementation matters. ERGA addresses jurisdictional disputes between Member States, helping achieve consistent Directive application across Europe.
Concluding Observations
These modifications carry substantial implications. With video comprising 80% of consumer internet traffic, subjecting video-sharing platforms to regulatory oversight represents a necessary development. Larger VSP providers contend they already implement equivalent protections, potentially limiting immediate impact.
Linear broadcasters sought greater deregulation but remain disappointed by continued specific regulatory burdens, leaving the promised “level playing field” with on-demand services distant.
The acceptance of levies outside country-of-origin principles generates significant concern that future regulatory aspects may follow similar approaches, substantially diminishing previous Directive protections for service providers.
EU Member States must implement changes by September 2020, though the UK’s position remains uncertain given its anticipated departure from the European Union.