On 25 May 2016 the European Commission adopted a legislative proposal amending the AVMSD. Highlights of its provisions are set out in this article.
As widely anticipated, the AVMSD will be extended to cover video-sharing platforms (but they will be subject only to a limited number of the AVMSD requirements, notably those concerning hate speech and content harmful to minors). The concept of the AVMSD only applying to "television-like" services has gone.
Country of Origin (COO) Principle
The "country of origin" principle (where a service is subject to regulation in the EU Member State where it is provided from) has been retained, but with clarification as to how the COO is determined: if a service has a head office in one Member State but editorial decisions are taken in another, the Member State where the majority of the relevant workforce is based will be the COO. Member States will have enhanced obligations to keep track of the services they regulate as COO and keep other Member States informed. There is a procedure to resolve disputed COO attribution.
Under the existing Directive a Member State can derogate from the COO principle in certain exceptional circumstances: the list of circumstances will be augmented with the addition of "prejudice to public health". It will be interesting to see how widely this is applied.
The concept of hate speech will be brought in line with other Commission initiatives, adding in particular, age, disability and sexual orientation.
The rules on product placement will be relaxed, so that product placement is generally permissible except in news, current affairs, consumer affairs and religious programmes and programmes targeted at children, subject to certain restrictions and requirements.
Promotion of European Works
There will be a general requirement to ensure 20% of works in on-demand catalogues are European, together with a requirement to ensure prominence. Member States which are the COO for an on-demand service, or a target jurisdiction for an on-demand service, will be able to levy financial contributions from on-demand services to support European Works. There are exceptions for smaller companies.
Protection of Minors
The rules will be simplified and augmented with obligations to make content that may be harmful to children clearly identifiable and accompanied by appropriate measures to restrict access.
Audiovisual service regulators in Member States will be required to be independent of industry and government.
Having been adopted by the European Commission, the proposal goes to the European Parliament and to the Council of Ministers. Indications are that the Commission expects the proposal to be enacted within the next 12 months.
The revisions are not as radical as some expected when the Digital Single Market Agenda was first promulgated. The "country of origin" principle is broadly retained and the refinements are a reasonable response to legitimate concerns raised by some Member States.
The independence of regulators, whilst not relevant in the UK (where media regulation is already independent), does represent a major shift with reference to those Member States who have not, historically, had media regulation with such a degree of independence.
The relaxation of product placement rules will assist in the financing of television content.
The provisions supporting European Works could be a relatively firm intervention which should be of benefit on the European audio-visual production industry.