December 2009 marks a key turning point for the media in Europe. This is the deadline by which EU member States have to transpose the Audiovisual Media Services Directive (AVMSD) into national legislation concerning certain areas of audiovisual activity. The European Audiovisual Observatory has chosen to devote its latest IRIS Special report to an analysis of one of the key concepts enshrined within the AVMSD: editorial responsibility. At the invitation of the European Commission, the study was presented to the Contact Committee in Brussels Friday, 4 of July.
The authors, Schulz and Heilmann from the Hamburg-based Hans-Bredow Institute, start their report by examining the implications of editorial responsibility as a defining feature of an audiovisual media service according to the directive. They offer a useful legal analysis of the terms “responsibility” and “editorial” before moving on to apply these principles to the place of establishment of an audiovisual media service for which the notion of editorial decision-making is decisive.
The report then proceeds to examine the linguistic aspects of editorial responsibility in the various different language translations of the AVMSD. Referring to the primacy of any one language version of the treaty (the English version was the original text), the authors point out that “Article 314 of the EC Treaty establishes the principle that all language versions are equally authentic.” This is followed by a historical flash-back over the birth and development of the current Directive and the gradual inclusion of the notion of editorial responsibility.
The nature of control over audiovisual media services according to the AVMSD is then examined. The often thorny question is raised concerning the actual power which a State may or may not have to oblige a service provider to comply with domestic regulations and in future with the terms of the transposed AVMSD concerning editorial responsibility. The authors admit that “there may be a difference between the legally granted possibility of exerting influence and actually exerting it”.
The report then examines the process of selection and organisation of content by audiovisual media service providers. It is the way in which an audiovisual media service puts together the programme of content it offers that determines its level of editorial responsibility and the authors offer a very precise analysis of the various permutations of this process and the level of editorial responsibility which results.
Having discussed the theoretical and legal implications of the selection and organisation of content, Schulz and Heilmann then conclude by applying their reasoning to a practical list of audiovisual media services such as programme packagers, electronic programme guides and UGC platforms such as YouTube. They investigate the actual influence these service providors have on the content and organisation of content they provide in order to determine concretely their editorial responsibility for this content.
A significant and very timely study not only for the ongoing transposition of the AVMSD in national law but also because the impact of the notion of editorial responsibility could go beyond the immediate scope of the AVMSD and reach the fields of civil liability and other media-related areas.
IRIS Special, 2008 Edition,
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