IRIS Special

Ready, Set … Go?
The Audiovisual Media Services Directive

EUR 89
ISBN 978-92-871-6665-4
131 pages
Edition 2009

If the transposition of the EC Directive were to be compared with a competition, it would be between the national legislatures to see which has produced the best domestic law. Many different yardsticks could be used to measure which law is the "best", such as the interests of the legislature or those to whom the provisions are directed, the rights to be protected, the interests of society or - perhaps in first place in the EC context - its benefit for the EC's internal market. However, the different interests involved are just one aspect of this publication, which also deals with the means of transposing the Directive, that is to say the choice and characteristics of the models selected and the actual steps taken to implement the provisions and subsequently monitor the results. These aspects are also important when it comes to assessing the quality of the domestic law in each case.

A better understanding of the Directive: interests to be protected

The recitals of the Audiovisual Media Services Directive mention a number of interests that the Directive wishes to serve with the Community-law framework that has been laid down. In the very first recital, the Directive mentions the competition conditions and legal certainty for European companies and services in the context of the information technologies and the media and points out the (public) interest in cultural and linguistic diversity. Other recitals refer to the situation of small and medium sized companies or emphasise the public interest in having a right to information, the public interest in media pluralism, in the protection of minors, in consumer protection, and in raising awareness and in fostering media literacy. These interests are seen in the context of the general digitisation of society, which has led both to the emergence of new services and to the need to revise existing regulations.

This IRIS Special contains a large amount of information on how national solutions take into account the various interests, especially with regard to regulating non-linear services and in areas for which national rules can be relaxed in the future. The publication answers such questions as...

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Editorial

Accompanying the transposition of the Audiovisual Media Services Directive
Report on the joint EAO/EMR workshop held on 30 and 31 January 2009 in Saarbrücken
Christian M. Bron, Institute of European Media Law (Germany)

1. Introduction
2. Definitions and other key concepts: impact on the transposition in the national legal system
   1. The influence of concepts of Community law on national law, especially with regard to the transposition of the AVMSD
   2. Distinction between linear and non-linear services
   3. Establishment of editorial responsibility
3. Individual areas covered by the AVMSD
   1. Product placement: stricter rules - opt-in or opt-out?
   2. The right to short reporting
   3. The promotion of the production of European works in the case of on-demand services
   4. The protection of minors in the United Kingdom and the AVMSD: a choice between traditional regulation, co-regulation and self-regulation
4. The transposition of the AVMSD from the point of view of the legislator and the regulatory authorities
   1. Application: jurisdiction and co-operation
   2. Restriction on the free movement of services in the case of hate speech, violations of human dignity and harmful content
   3. Regulation by national regulatory authorities: the example of commercial communication
   4. Monitoring of member states' compliance with the AVMSD: national regulatory and co- regulatory authorities
5. Conclusion

The general impact of key notions of the AVMS Directive and their definitions on the national framework
(Arts. 1, 2 and 3 of the Directive)
Emmanuel Joly, European Commission, Information Society and Media DG

1. Legal framework for the transposition of the AVMS Directive
   1. Autonomy of member states
   2. Limits on the autonomy of member states
2. The various key notions of the AVMS Directive
   1. Undefined notions
   1. 1. Notions that are essential to the overall functioning of the directive: jurisdiction criteria, notion of circumvention
   1. 2. Notions on which audiovisual content rules are based
   2. Defined notions
3. The impact of key notions of the AVMS Directive on national transposition measures
   1. Undefined notions
   2. Defined notions
   2.1. Notion of audiovisual media service
   2.2. Distinction between linear and non-linear

Linear and non-linear audiovisual media services
Nico van Eijk, Institute for Information Law (IViR), University of Amsterdam (Netherlands)

1. From television broadcasts
2. To linear/non-linear audiovisual media services
3. Transposition
4. Transposition models
5. Constitutional issues
6. Conclusion

Establishment
Editorial responsibility and effective control
Jean-François Furnémont, Conseil supérieur de l'audiovisuel (Belgium)

1. Foreword
2. Jurisdiction
3. Editorial responsibility
4. Possible solutions for the transposition
5. Conclusions

Product placement
A brief summary of the current and future legal position under the Audiovisual Media Services Directive
Oliver Castendyk, Erich Pommer Institute, University of Potsdam (Germany)

1. The facts
2. The current legal situation
   1. Intention to advertise
   1.1. Undue prominence
   1.2. Accountability
   2. Misleading viewers
3. The new legal situation
   1. The structure of Art. 3g AVMSD
   2. Application issues
   2.1. The "serial" genre
   2.2. "Provision free of charge"
   2.3. The required warning
   2.4. Undue prominence of a product
   2.5. Ban on influencing "editorial responsibility"
   2.6. The separation principle in the AVMSD
4. Conclusion

Short reporting rights
Austria's experience
Robert Rittler, Gassauer-Fleissner, Attorneys at Law (Austria)

1. European legal bases
2. The Austrian Exclusive Television Rights Act
3. Initial situation in Austria, taking football as an example
4. Background to the legal dispute between the ORF and Premiere/ATV
5. Decisions by the Federal Communications Board and the supreme courts
   1. Event of general public interest
   2. The event
   3. Compensation for granting the right to short reporting
   4. Exclusive right of an Austrian broadcaster
6. Transposition of the Audiovisual Media Services Directive into Austrian law

Promotion of European works in on-demand services
Incentives for action by legislators/regulators/industry
Pascal Kamina, University of Poitiers (France)

1. Introduction
   1. Promotion of European works under the TWFD (Arts. 4 and 5)
   2. Justification / objectives of Art. 3i AVMSD
   3. The situation of existing non-linear services
2. Analysis of the scope of Art. 3i AVSMD
   1. "On-demand audiovisual media services provided by media service providers under their jurisdiction"
   2. "Where practicable and by appropriate means"
   3. "Shall promote the production of and access to European works"
3. Implementation so far
   1. Pre-existing legislation (cinematographic and audiovisual works)
   2. Implementation of Art. 3.i AVMSD

Implementing the Audiovisual Media Services Directive between world trade rules and cultural diversity
Amedeo Arena, Università degli Studi di Napoli "Federico II" (Italy)

1. Implementing a "carte blanche" provision?
2. The goals pursued by Art. 3i AVMSD
3. The promotion of European works vs. GATT and GATS rules: the past and present situation
4. Possible Art. 3i implementation scenarios and WTO constraints
5. The role of cultural diversity and of the UNESCO Convention
6. Putting the pieces together: the relevance of the UNESCO Convention in the framework of a WTO dispute
   over a measure implementing Art. 3i AVMSD

Regulation, Co-regulation, Self-regulation
Protection of minors - the case of the UK
Lorna M. Woods, City Law School, City University, London (United Kingdom)

1. Introduction
2. Regulation at the EC level
3. The current UK regulatory structure: an overview
   1. The BBC
   2. Ofcom
   3. Advertising on television
   4. On-demand services
   5. Advertising of junk food to children
4. Implementation of the AVMSD
   1. Choice of regulatory form for editorial content
   2. Choice of regulatory form for advertising
5. Conclusions

Jurisdiction and Co-operation
The example of Luxembourg
Tom Krieps, Conseil National des Programmes (Luxemburg)

1. Determining establishment
2. Practical consequences of the inversion of ancillary criteria
   1. Current situation in Luxembourg
   2. The CNP in contact with ASTRA
   3. Monitoring under the TWFD
   4. Monitoring under the AVMSD
3. Perspectives
4. Conclusions

Measures limiting the freedom to provide services
Incitement to hatred, human dignity and harmful content - Focus France
Martine Coquet, Conseil supérieur de l'audiovisuel (France)

1. Introduction
2. Reminder of the relevant provisions of the AVMSD
   1. Fundamental principles that must be respected by all services under the jurisdiction of a member state
   2. Failure to respect these principles can justify a temporary restriction of the freedom of reception
3. What does French law stipulate?
   1. What are the main principles of the 1986 Act concerning services under France's jurisdiction?
   1.1. Scope
   1.2. Applicable rules
   1.3. Applicable sanctions
   2. A safety clause vis-à-vis channels under the jurisdiction of another member state has been introduced
4. Exercise of control and possible restrictions by the Conseil supérieur de l'audiovisuel, particularly with regard to non-EU channels
5. Conclusion

Rule making by regulatory bodies
Commercial communications regulation in Ireland
Margaret Tumelty, Broadcasting Commission of Ireland (Ireland)

1. Introduction
2. Approach to the development of codes and rules
3. Relevant codes in the present field
   1. Children's Advertising Code
   2. General Advertising Code
4. The Audiovisual Media Services Directive (AVMSD) and its implementation

Monitoring of compliance through member states' national regulatory bodies and co-regulatory bodies
Roberto Mastroianni, Università degli Studi di Napoli "Federico II" (Italy)

1. The importance of a correct implementation of the rules set out in the Directive for the proper functioning of the audiovisual media services markets (Arts. 10 and 249 EC)
2. Close cooperation in the ECTT …
3. … and in the AVMSD
4. The role given to national regulatory bodies in Art. 23b AVMSD and in Recital n. 65
5. Co-regulatory bodies
6. Relationship of Art. 23b AVMSD and Regulation (EC) 2006/2004

Transposition of the AVMS Directive
The Latvian experience
Andris Mellakauls, National Broadcasting Council (Latvia)

1. Transposition process
2. New terminology, new definitions, new problems
3. Non-linear Services
4. Junk Food and Self-Regulation
5. Media Literacy
6. Advertising Rules
7. Product Placement

No news, bad news
The AVMS Directive in Spain
Joan Botella, Universitat Autònoma de Barcelona (Spain)

1. Size and rules of access to the television market
2. The future model of DTT and the future of the public broadcaster
3. The lack of an independent regulatory authority