ENDitorial: AVMS Directive : TV or not TV – that is the question

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The discussions on the new Audiovisual Media Services Directive (AVMS) are
continuing unabated within the European Union’s institutions. With regards
to Internet media, the Council of the European Union and the European
Parliament are moving in the same direction. The question is how far.

The new Directive proposed by the Commission in December 2005 (COM(2005)646)
was meant to modernize the Television without Frontiers Directive (TVWF),
which was last updated in 1997. Besides proposed liberalized rules for
classic television regarding advertisement or product placement that have
been widely discussed, the new Directive also introduces regulation for so
called ‘non-linear audiovisual media services’, including on the Internet –
a fact that did not receive wide public attention to date.

The adoption of the Directive is pursued under the co-decision procedure,
whereby both, the Council and the Parliament are involved in the process.

On 13 November, the ‘Education, Youth and Culture Council’ came up with a
first ‘General Approach’ proposing amendments to the Commission
Proposal of December 2005.

On Wednesday last week, 13 December, the European Parliament adopted a
legislative resolution on the AVMS in its first reading, also amending the
Commisson proposal.

In spite of the parallel discussions in the Parliament and the Council, the
two have slightly differing approaches on how far the new Directive will in
fact be applicable to Internet media, although they are moving in the same
direction.

The good news is that compared to the vague initial Commission proposal, the
current definition of ‘non-linear audiovisual media services’ has been
narrowed down considerably by both the Parliament and the Council.
Which Internet services will in the future be regulated by this EU
directive, however, remains unclear.

While the Council in its general approach sees it as “characteristic of
on-demand services that they are ‘television-like'”, and does not include
non-commercial services such as “private websites and services consisting of
the provision or distribution of audiovisual content generated by private
users for the purposes of sharing and exchange within communities of
interest” – obviously trying to exclude services like YouTube -, Parliament
is not that lucid.

The text adopted by the EP defines audiovisual media services, both off- and
online, still somewhat vaguely as services “the content of which is suitable
for television broadcasting irrespective of the delivery platform”.

But also the Parliament acknowledges – in line with the service definition
of the EU Treaty – that non-economic activities “which are normally not
provided for remuneration, such as weblogs and other user-generated content
or any form of private correspondence, such as e-mails and private websites”
are not covered by the Directive.

But that’s not a reason for celebration, yet. The Parliament’s
report that was compiled from a number of Committee proposals under the
responsibility of rapporteur Ruth Hieronymi of the Committee for Culture and
Education in many points suggests additional regulation compared to the
initial proposal by the Commission.

For example, the right of reply was introduced for non-linear services
as well as an obligation for Member States to ensure that media service
providers provide filtering systems along with a stipulation that new
television sets shall be equipped with technical devices to enable certain
programmes to be filtered out.

While the Commission in its proposal stressed the ‘country of origin
principle’ – i.e. whatever is legal in one EU country is also licit in every
other Member State and must not be blocked – the
Parliament in its resolution allows for derogations from this principle, the
introduction of which was initially mentioned as one of the main motives
for the update. For example, in a speech from 22 September 2005
Commissioner Reding stressed that ” (…) an effective country of origin
principle – for me a cornerstone of the European audiovisual policy.”

The results of the Parliament’s first reading show improvements in some
areas, while the level of regulation was increased in others. Especially the
inconsistency in the country of origin principle makes it hard to find the
justification for the regulation of on-demand services under the AVMS, given
that many such provisions already exist in the EU e-Commerce Directive and
in national legislation.

The ongoing co-decision procedure will show how far this regulation will go
in the end and what the consequences of this “technologically neutral
approach” eventually will be for a still growing market. A market that
certainly would not have grown this fast had it been regulated in such a way
from the beginning.

Budapest Recommendations to the European Parliament on the draft Audiovisual
Media Services Directive (1.12.2006)
http://194.8.63.155/documents/rfm/2006/12/22708_en.pdf

Speech by Viviane Reding, Audiovisual Conference * Between Culture and
Commerce – Liverpool (22.09.2005)
http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/05/532&format=HTML&aged=1&language=EN&guiLanguage=en

EDRi-gram: Draft Audiovisual Directive Limited To The TV-Like Services On
The Web (22.11.2006)
http://www.edri.org/edrigram/number4.22/twf

(Contribution by Christian Möller)