IRIS Special

Editorial Responsibility

75 EUR
ISBN 978-92-871-6476-6
50 pages
Edition 2008

• Editorial
• Detailed table of contents here

Almost exactly twenty years after the adoption of the “Television without Frontiers” Directive, namely on 19 December 2009, the deadline for transposing the Audiovisual Media Service Directive (AVMSD) will expire. In other words, the national rules that so far served to facilitate cross-border television must be adapted or replaced in order to reflect, among others, the widened scope of application of the Community law framework to non-linear services.

Mastering this changeover will be anything but a purely technical exercise. National legislators will have to tackle issues that might have been too detailed to be dealt with at a European level or too controversial to result in more than textual compromise in the legal instruments involved. They might even have to address future developments that were not yet forecast when the AVMSD was adopted. Last but not least they have to focus on national specificities that might not have been taken into consideration when negotiating the Directive.

While all this takes place, most of the countries which are obliged to pursue legislative activities under the AVMSD are also in the process of negotiating a new version of the European Convention on Transfrontier Television. This Council of Europe legal instrument so far paralleled the “Television without Frontiers” Directive and shall now be aligned with the new premises that the AVMSD sets for the future.

As a result, the following months are likely to bring up many issues that could cause headaches to national legislators. It is the privilege of the European Audiovisual Observatory to make available some preventive medicine in form of relevant information to be used during the legislative process as well as the phase of initial application and interpretation of new rules that will follow thereafter.

Among the manifold aspects that will be relevant for transposing the AVMSD, the notion of editorial responsibility might claim the pole position inasmuch as it is decisive for determining the services to which the new Directive shall apply and hence, for the scope of all other provisions in the Directive. Defining editorial responsibility under the AVMSD might also influence the application of general provisions to audiovisual media services concerning, for example, liability or copyright.

We would like to thank Danilo Leonardi, who until very recently headed the Programme in Comparative Media Law and Policy at the University of Oxford, for supplying the European Audiovisual Observatory with important insight concerning the broad spectrum of legal topics of which editorial responsibility is a cornerstone and initial research on several of them. This work allowed us to determine the scope of the current study which, in our view, considering the many other projects on editorial responsibility that we could have conducted, caters to the most pressing information needs of the audiovisual sector.

We are very grateful to the Hans-Bredow-Institut for having developed this much needed study. Dr. Wolfgang Schulz and Stefan Heilmann, the authors of “Editorial Responsibility: Notes on a Key Concept in the Regulation of Audiovisual Media Services”, bring to the fore the many facets, concepts and important consequences that constitute the field of editorial responsibility as well as the grey zones where legislators might have to struggle for workable solutions and from where potential diverging views could emerge. Reading this study, however, should facilitate the legislative task.

As the editorial responsibility for this publication lies with the Observatory, it is only appropriate to express thanks to the translators and proof readers who are essential for its quality. Special thanks go to Britta Probol, whose carefully and intelligent proofing of the original German version helped the authors and the editor to improve the text further before translation.

Hoping that this IRIS Special will, among others, be useful for the difficult task of transposing the AVMSD into national law, we stress that the editorial responsibility for that to happen lies entirely with the national legislators!

Strasbourg, July 2008

Wolfgang Closs, Executive Director
Susanne Nikoltchev, Head of Department for Legal Information

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1. Introduction

2. Functional Levels of the Term “Editorial Responsibility”

2.1. Editorial Responsibility as a Defining Feature of an Audiovisual Media Service

2.1.1. The “Responsibility” Criterion
2.1.2. The “Editorial” Criterion

2.2. Editorial Responsibility as a Starting-point for the Implementation of the Aims of the Directive

2.2.1. Place of Establishment
2.2.2. Entity Subject to Regulation

2.2.2.1. Measures against Entities other than the Media Service Provider
2.2.2.2. Measures in the Case of Several Providers

2.3. Starting-point for Other Media-specific Rules of Law
2.4. Starting-point for Rules on Content Liability

3. Definition of the Term “Editorial Responsibility”

3.1. Preliminary Interpretative Considerations

3.1.1. Interpretation of the Wording
3.1.2. Historical Genesis of the Legal Definition
3.1.3. Taking Account of the Legal Consequences Aspect

3.2. The “Effective Control” Criterion

3.2.1. Effective Control as a Term Harmonised by Community Law
3.2.2. Nature of the Control

3.3. Aspects of “Selection” and “Organisation”

3.3.1. The Selection of Programmes Criterion
3.3.2. The Organisation of Programmes Criterion

4. Reference Cases for (the Lack of) Editorial Responsibility

4.1. The (Technical) Retransmission of Linear Media Services
4.2. (Technical) Retransmission with a Requirement to Give Approval
4.3. Packaging
4.4. EPGs
4.5. Interactive Television
4.6. Technical Platforms as Nonlinear Services
4.7. Video Databases
4.8. Video Platforms (YouTube)
4.9. Online Computer Games

5. Consequences for Member States’ Legislation

Appendix I: Analytical dimensions of the players’ roles with regard to audiovisual content
Appendix II: Wording of The Most Important Provisions of EU Law Cited Here