IRIS Special

The Regulation of On-demand Audiovisual Services: Chaos or Coherence?

Edition 2011, 100 pages

Special difficulties may stem from the fact that the regulation of audiovisual media services is a “twinset“ undertaking in various aspects and that it deals with non-identical twins. With the “elder” twin, the linear audiovisual media services, member states are more or less at ease as they have had years under the “Television without Frontiers” Directive to familiarise with the services and possess national rules that they just need to adapt to certain new aspects of the European regulatory framework.

The “younger” twin, the non-linear audiovisual media services, causes more of a head-ache. This is partly because member states are not sure how it will develop in reality: will it be strong and successful and possibly quickly outdo its sibling? Or will it need pampering for a prolonged period? Will it be easy to lead and guide or egocentric and wild? The non-linear part is difficult to handle also because it has not yet been subject to specific content regulation and it seems unclear how the relevant national systems may be expanded or changed to accommodate it.

As we know regulation of audiovisual media services shall comprise both twins and it shall be done as a set in the sense that linear services are subject to more and non-linear to less stringent rules but both regulatory parts together must provide for a “level playing field”, just like the twinset jacket must inevitably match the sweater.

This IRIS Special looks at the troubles caused by the new task of regulating non-linear – commonly referred to as on-demand – audiovisual media services. Similar to the fact finding letters of the European Commission, (…)

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Editorial

“Whose Boots Are Made for Walking?”
Regulation of On-demand Audiovisual Services

1. The different forms of on-demand services
2. The European legal framework for on-demand audiovisual media services
3. Examples of national implementation

1. Netherlands
2. Italy
3. Germany
4. United Kingdom

4. Three-part “practical test” for the Directive

1. Consumers’ expectations of the regulation of audiovisual services
2. Requirements of regulation from the perspective of the industry and its strategies
3. Legislators’ and regulators’ approach

5. General discussion topics and outlook
   
   1. Intermediaries in the current and future regulatory structure
   2. Perspectives and requirements of co- and/or self-regulatory systems
      
6. Conclusion

Introduction to Different Forms of On-demand Audiovisual Services

1. Access to audiovisual services via the open Internet
2. Unlinked applications
3. Linked applications
4. Google TV
5. Apple TV
6. Apps in managed networks
7. Conclusion

The European Legal Framework for On-demand Services:
What Directive for Which Services?

1. The framework for on-demand services in secondary EU law

   1. Audiovisual Media Services Directive

   1.1. Article 1(1)(a)(i) Audiovisual Media Services Directive
   1.2. Article 1(1)(a)(ii) Audiovisual Media Services Directive

   2. E-Commerce Directive
   3. Other relevant legislation
   4. Case law or (rather) the lack of relevant case law

2. In concreto: examples of on-demand services
3. Conclusion

Regulating On-demand Services in Italy

I. Changing media landscape

1. The provider
2. The user
3. The regulator

II. Who is in and who is out in the Italian approach

1. The fulfillment of five cumulative criteria

1.1. An economic service …
1.2. … of a mass media character …
1.3. … the principal purpose of which is the provision of programmes …
1.4. … in order to inform, entertain or educate the general public …
1.5. … via electronic communications networks.

2. The Italian roadmap

2.1. Transposition into primary law
2.2. Secondary regulation for the licensing requirements
2.3. Agcom’s regulations

III. When regulation meets reality

Finetuning Classification Criteria for On-demand Audiovisual
Media Services: the Dutch Approach

I. General framework: Media Act 2008 and policy guidelines of the CvdM

1. “Multimedia Act”
2. Policy guidelines of the CvdM regarding advertising in public media services

II. Scope of regulation of commercial on-demand media services

1. Legal definitions in the Media Act 2008
2. Policy guidelines of the CvdM regarding classification of commercial on-demand media services

III. Criteria for classification of commercial on-demand media services

1. Video and catalogue
2. Principal purpose
3. Editorial responsibility
4. Mass medium
5. Economic service
6. Possible consequences for services in practice

6.1. Catch-up-TV services
6.2. Online video stores
6.3. Newspaper and magazine video sites
6.4. Aggregator sites
6.5. Video hosting sites

IV. Summary

Germany: Selected Aspects of Commercial Communications
Regulation as regards On-demand Audiovisual Services

1. Applicable legislation and regulation, competent authorities and co-/self-regulatory bodies, and related procedures

   1. The split competence for legislating on-demand audiovisual services

   1.1. Legal concepts of different telemedia services
   1.2. Implementation of rules by the competent authorities at state level
   1.3. General, i.e. not media-specific, legislation on commercial communications

   2. Co- and/or self-regulation in the area of commercial communications

   2.1. Commercial communications and the protection of consumers in general
   2.2. Commercial communications and the protection of minors

2. Examples of commercial communications’ regulation in respect of different on-demand audiovisual services

   1. The protection of minors in commercial communications

   1.1. Rules applicable to all kinds of on-demand audiovisual services
   1.2. Rules applicable to on-demand audiovisual media services

   2. Commercial communications for alcoholic beverages

   2.1. Rules applicable to all kinds of on-demand audiovisual services
   2.2. Rules applicable to on-demand audiovisual media services

   3. Commercial communications for food, particularly HFSS

3. Analysis and conclusion

Co- and Self-regulation in the Area of Protection of Minors in the United Kingdom

1. The UK’s approach to the regulation of on-demand audiovisual media services
2. The UK’s role in the development of the Audiovisual Media Services Directive
3. The establishment of the respective co-/self-regulatory schemes in the UK

1. General
2. The Advertising Standards Authority (ASA)
3. The Authority for Television On-Demand (ATVOD) and further initiatives

4. Conclusion

The New Audiovisual Media Services Directive and its Addressees: How will the Industry Tackle its New Challenges?

1. Practical difficulties in applying the current media laws

   1. Minefield of practical legal barriers

   1.1. Cross-jurisdictional issues and discrepancies
   1.2. Large variety of relevant legal subject matters
   1.3. Complex stratifi cation of labels
   1.4. Regulations not adapted to the “digital paradigm shift”
   1.5. General consequences

   2. Substantive issues

   2.1. Application of the new AVMS Directive

   2.1.1.Lack of clarity in the scope of the Directive
   2.1.2. Limits of the “country-of-origin” principle7
   2.1.3. Respecting age restrictions in a digital world
   2.1.4. Devising advertisement requirements online

   2.2. Privacy

2. Accommodating the regulatory framework by adjusting technologies

   1. Why?
   2. Examples of regulatory triggered technology adjustments

3. What would self- or co-regulation bring to the industry?

   1. The Directive on the concept of self- and co-regulation
   2. The industry’s reaction

4. Conclusion

The Regulation of On-demand Audiovisual Services:
The Expectations of Europe’s Consumers

1. Two areas of ambiguity
2. The problem of access
   

   1. The regulatory division between carriage and content
   2. The regulatory approaches of France and the UK

3. Programmes which might be unsuitable for children
4. The classification of on-demand programmes
5. European works
6. Product placement
7. Children’s programmes
8. Conclusion

Legislators’ and Regulators’ Expectations in the Field of On-demand Audiovisual Media Services

1. On-demand services as audiovisual media services
2. Regulatory and legislative reach over on-demand audiovisual media services
3. Regulatory problems relating to on-demand audiovisual media services on the Internet
4. Regulatory challenges. What needs to be done?
5. 1. Concept clarification
   2. Creation of incentives for on-demand service providers and intermediaries to assume audiovisual regulatory principles
   3. Explore the possibilities of the current legal regime, in areas such as competition law or consumer law
   4. Move from ordinary regulation to a “communications governance scheme”…

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