MediaRegulatory and institutional structure
Summarise the regulatory framework for the media sector in your jurisdiction.
Articles 167 and 173 of the TFEU can be considered the legal basis for audiovisual policy in the EU. The EU’s main objective in this context is to create a single European market for audiovisual services. It encourages cooperation between the EU member states, in particular, in the audiovisual sector, and supports them where necessary. Within the EU, the Commission is responsible for any media policy (see question 28 for details).
Within the EU, audiovisual media services (including broadcasting and on-demand services) are to a broad extent regulated under Directive 2010/13/EC (the Audiovisual Media Services Directive, AVMS Directive). The AVMS Directive was adopted to codify and harmonise the existing legislation with respect to audiovisual media services. Audiovisual media service is defined as a service which is ‘under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, to inform, entertain or educate, to the general public by electronic communications network’ (see article 1, paragraph 1a, AVMS Directive).
The AVMS Directive applies to broadcasts over terrestrial, cable, satellite and mobile networks as well as over the internet (platform and technology neutrality). It distinguishes between ‘linear’ services (which ‘push’ content to viewers, eg, by broadcasting via traditional television, internet or mobile phones) and ‘non-linear’ services (which ‘pull’ content from a network, eg, video-on-demand services). Under the AVMS Directive, linear services are generally regulated more tightly, as viewers are not able to control their content.
In February 2014, the European Regulators Group for Audiovisual Media Services was established, which is responsible for advising on the implementation of the AVMS Directive.
The AVMS Directive shall, in particular, harmonise national rules on:
- regulation of television broadcasts, including satellite broadcasts, under the ‘country of origin’ principle, including the right for EU member states to restrict the retransmission of unsuitable broadcast content from another EU member state;
- promotion, production and distribution of television programmes within the EU, including quotas for European-produced content and content made by independent producers;
- access by the public to major (sports) events;
- television advertising, product placement and programme sponsorship;
- protection of minors from unsuitable content; and
- right of reply (of any natural or legal person whose legitimate interest has been damaged by an assertion in a television programme).
On 25 May 2016, the Commission adopted a new legislative proposal on the AVMS Directive. The proposal contains, in particular, the following new elements:
- simplification of the ‘country of origin’-principle;
- clarification of cooperation procedures between EU member states;
- extension of the provisions on European-produced content to on-demand service providers;
- alignment of the rules on protection of minors for TV broadcasting and on-demand services; and
- extension of the scope of applicability of the AVMS Directive on video-sharing platforms.
The proposal shall ensure that the AVMS is prepared for the convergence of audiovisual media services and that it is in line with current technological developments. The proposal is currently in the legislative procedure.
In February 2018, a new geo-blocking regulation was adopted (EU 2018/302), which entered into force on 22 March 2018. The regulation took effect on 3 December 2018. Geo-blocking refers to practices used by online sellers that result in the denial of access to websites from other member states. In particular, the regulation addresses issues of (potential) customers not being able to buy goods and services from traders located in a different member state for reasons related to their nationality, place of residence or place of establishment and focuses on discrimination of such customers. The regulation covers audiovisual copyright content; but non-audiovisual content, such as e-books, online music, software and videogames, is excluded.Ownership restrictions
Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?
The ownership of broadcasters is, to a great extent, regulated by the EU member states under their national broadcasting laws. National law must, however, comply with EU law, including (among others) the provisions of the TFEU and the AVMS Directive.
EU law prohibits, in particular, any discrimination on grounds of nationality. As a consequence, foreign ownership restrictions are generally prohibited. EU law also prohibits any actions that are able to prevent or impede the activities of persons or companies established in other EU member states. The TFEU sets forth the following fundamental freedoms with which any national laws must comply:
- article 34: prohibition of national restrictions on the freedom of movement of goods within the EU (including, eg, material, sound recordings and other apparatus for broadcasting);
- article 49: right of EU citizens and companies to establish businesses in other EU member states (including, eg, broadcasting businesses);
- article 56: prohibition of national restrictions on the freedom to provide services by EU citizens (including, eg, television and radio broadcasting); and
- article 63: free movement of capital in the EU (including, eg, capital for purchasing shares in a company).
National laws restricting these fundamental freedoms may be compliant with EU laws under certain circumstances (eg, where necessary for public safety or public health reasons) or in case of an overriding public interest (eg, maintenance of the social order, protection of consumers’ rights, guarantee of the freedom of speech and plurality of media). However, such restrictions have to be interpreted narrowly and must be objectively justified.
According to recitals 8 and 94 of the AVMS Directive, EU member states shall prevent any actions that create dominant positions or a concentration of media ownership, and shall contribute to the promotion of media pluralism. However, no binding measures obliging EU member states to take action against media concentration have so far been adopted.Licensing requirements
What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?
The licensing requirements, fees and timescales for authorisations are generally regulated by the EU member states. The AVMS Directive, however, specifies which EU member state is competent to regulate a broadcaster (under the ‘country of origin’ principle) and sets out certain common minimum requirements and standards with which broadcasters have to comply and which are enforceable by national authorities. These minimum standards include, among others:
- transparency and information obligations;
- prohibition on discrimination based on race, religion or nationality;
- accessibility for users with a visual or hearing disability;
- prohibition of surreptitious or subliminal commercial communication;
- rules on commercial communications for alcoholic beverages;
- protection of cinematographic works;
- protection of minors; and
- promotion of European and independent works.
EU member states are not entitled to apply less stringent rules to broadcasts, but may impose stricter rules on audiovisual media service providers under their jurisdiction, provided that these do not violate fundamental EU rights.Foreign programmes and local content requirements
Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?
According to the AVMS Directive, EU member states shall ensure, where practicable, that broadcasters reserve a majority of their production, budget and transmission time (with the exception of time allocated to news, sport, games, advertising, teletext services and teleshopping) for European works. EU member states shall report on the implementation of this obligation. Such report shall, in particular, include a statistical statement on the achievement of the proportion for each television programme.
EU member states shall also ensure, where practicable, that broadcasters reserve at least 10 per cent of their transmission time for European works supplied by independent producers. Alternatively, EU member states may reserve at least 10 per cent of their programming budget to independent European works. EU member states shall define such ‘independent works’, taking into account the ownership of the production company, the amount of programmes supplied to the same broadcaster and the ownership of secondary rights.
The AVMS Directive does not distinguish services by means of transmission (eg, online or mobile content). It rather distinguishes between ‘linear’ and ‘non-linear’ services (see question 17). To the extent online or mobile content qualify as audiovisual media services, they are, thus, regulated in the same way as ‘traditional’ broadcast networks and fall under the scope of the AVMS Directive.
The AVMS Directive does not contain any specific content quotas for European or independent works for non-linear services. However, EU member states are required, where practicable and by appropriate means, to ensure that providers of non-linear services promote the production of and access to European works.Advertising
How is broadcast media advertising regulated? Is online advertising subject to the same regulation?
The delivery of television advertising, sponsorship and teleshopping are broadly regulated by the AVMS Directive. A prerequisite for the applicability of the AVMS Directive is that the online service is qualified an audiovisual media service.
The AVMS Directive aims at protecting consumers against excessive television advertising. It therefore sets forth strict rules to ensure consumer protection, stipulating, in particular, that television advertising and teleshopping shall be recognisable as such and shall be distinguishable from editorial content, either by optical, acoustic or spatial means. It allows for an interruption of the transmission of films (excluding series, serials and documentaries) once for each scheduled period of at least 30 minutes. In total, the proportion of television advertising and teleshopping spots within a given clock hour shall not exceed 20 per cent. The proposal for an amendment of the AVMS Directive envisages a change of the limit for advertising from 20 per cent per hour to 20 per cent per day (between 7am and 11pm).
The AVMS Directive prohibits certain types of advertising, namely advertising or teleshopping inserted during religious services and teleshopping for medicinal products subject to a marketing authorisation or for medical treatment. It also restricts advertising of alcoholic beverages to a large extent.
In addition to the restrictions under the AVMS Directive, the Tobacco Advertising Directive (Directive 2003/33/EC) contains an EU wide ban on cross-border tobacco advertising and sponsorship in the media other than television. The ban covers print media, radio, internet and sponsorship of events involving several EU member states (eg, the Olympic Games or Formula One races).
Any form of advertising is, of course, also subject to the fundamental principles of human dignity, non-discrimination on the grounds of race, nationality, religious or political belief as well as the protection of minors, health, safety and environment. Furthermore, the Directive concerning misleading and comparative advertising (2006/114/EC) stipulates general requirements for advertising, irrespective of the means of transmission. Additionally, article 13 of the Directive on privacy and electronic communications (2002/58/EC) establishes certain requirements for unsolicited communications such as electronic mail for the purposes of direct marketing. These rules need to be implemented in national law by the EU member states.
In 1992, advertising industry representatives in Europe launched the European Advertising Standards Alliance (EASA), an independent coordinating body that celebrated its 25th birthday in 2017, to promote responsible advertising. EASA provides detailed guidance on how to go about advertising self-regulation for the benefit of consumers and businesses. It has become the single authoritative voice on advertising self-regulation and promotes high ethical standards in commercial communications. In 2016, the Commission explicitly recognised the role and effectiveness of advertising self-regulation.Must-carry obligations
Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?
According to article 31, paragraph 1 of Directive 2002/22/EC (the Universal Service Directive), EU member states may impose must-carry obligations for the transmission of specific broadcast channels or services on companies providing electronic communications networks for the distribution of radio or television broadcast (eg, cable companies or telecom operators). Prerequisite is that a significant number of end users use such networks as principal means for radio and television broadcasts.
Must-carry obligations shall only be imposed to the extent necessary to meet clearly defined objectives of general interest (eg, media plurality). According to the European Court of Justice, economic considerations would not be considered general interest obligations.
The rules for must-carry obligations have to be transparent, proportionate and subject to periodical review at least every three years. They must be clearly identified and based on objective non-discriminatory criteria known in advance. Broadcasters and network operators have to be able to know their specific rights and obligations.
Must-carry obligations may also entail a provision for proportionate remuneration. However, it must be ensured that there is no discrimination in the treatment of different companies providing electronic communications networks in similar circumstances.
Article 31, paragraph 1 of the Universal Service Directive does not cover the content of the services delivered (eg, which broadcasters benefit from must-carry obligations). Such content issues are, however, subject to the principles of non-discrimination and proportionality.Regulation of new media content
Is new media content and its delivery regulated differently from traditional broadcast media? How?
The delivery of new media content is regulated by the AVMS Directive, if and as far as it qualifies as an audiovisual media service (see question 17).
If a service does not qualify as an audiovisual media service, it is covered by Directive 2000/31/EC (the E-Commerce Directive). Prerequisite for the applicability of the E-Commerce Directive is that the service qualifies as an ‘information society service’. According to article 1, paragraph 1 of Directive 98/34/EC (Information Society Services Directive), such information society service is any service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipient of the service (eg, web-based content, video portals, e-commerce and web-hosting).
Similar to the AVMS Directive, the E-Commerce Directive is also based upon the ‘country of origin’ principle. A provider of information society services is therefore generally subject to regulation in the EU member state in which it has its establishment. In general, providers of information society services do not require prior authorisation under the AVMS Directive or the E-Commerce Directive.
On 6 May 2015, the Commission adopted the Digital Single Market Strategy, which announced a legislative initiative on harmonised rules for the supply of digital content and online and other distance sales of goods. The Commission published proposals for a Directive on contracts for the supply of digital content and a Directive for online and other distance sales of goods on 9 December 2015. Both proposals aim at ensuring better access for consumers and businesses to online goods and services across Europe by providing a higher level of consumer protection and a wider choice of products at more competitive prices.
The proposal for a Directive on contracts for the supply of digital content stipulates clear and specific rights for digital content and, in particular, rules on conformity of digital content with the contract, remedies in case of failure or non-conformity and modalities for the exercise of such remedies and modification or termination of such contracts. It envisages an application to contracts for the sale of digital content (eg, purchase of music or films) and rental of digital content (eg, watching a film online against payment) as well as contracts for digital services (eg, cloud computing and social media). It applies only to contracts concluded for consideration, which can also take the form of digital media (including personal data) provided by the consumer.Digital switchover
When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?
According to the Commission, the EU is leading the world in switching from analogue to digital television. The Commission recommended that switch-off in all EU member states should be completed by 2012. By the end of 2015, all EU member states had finally completed the switchover.
The re-farming of freed-up spectrum is mainly regulated by the EU Radio Spectrum Policy Programme (RSPP), which was established in 2012. The RSPP covers all types of radio spectrum use and sets general regulatory principles and policy objectives to enhance the efficiency and flexibility of spectrum use in the EU. A key aspect of the programme is the establishment of an inventory of spectrum bands identifying the current use of spectrum together with an analysis of technology trends, future needs and spectrum-sharing opportunities. Through use of spectrum bands, the Commission aims to identify inefficient spectrum allocations and to free up capacity for new (more economic and efficient) uses of such spectrum.Digital formats
Does regulation restrict how broadcasters can use their spectrum?
No. This is regulated by the member states themselves.Media plurality
Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?
Media pluralism is protected at EU level as a part of the fundamental right to information and freedom of expression, which is stipulated in article 11 of the EU Charter of Fundamental Rights. In addition, article 30 AVMS Directive assumes the independence of audiovisual media regulators. However, there are no clear and enforceable safeguards available to ensure independence of regulators.
In October 2011, the Commission appointed a high-level expert group on Media Pluralism and Freedom to provide recommendations on media plurality. The Commission also established the Centre for Media Pluralism and Media Freedom (CMPF). The CMPF’s objective is to accompany the process of European integration as regards media pluralism and to develop policy reports on European Union competences in this area.
In 2013, the CMPF conducted a pilot test implementation of the Media Pluralism Monitor Tool (MPM Tool). The MPM Tool was to identify potential risks to media pluralism in the EU and provide support to policy and rulemaking processes. On 30 June 2014, the Commission adopted the Work Programme for ‘Measures concerning the digital content and audiovisual and other media industries’ and related pilot projects in the field of media pluralism and freedom to finance the implementation of the MPM Tool.
In 2016, an examination of the 28 member states as well as two candidate countries was carried out via the MPM Tool. The result showed that none of these countries were free from risks relating to media pluralism and media freedom. It also showed erosion to freedom of expression and protection to journalists in one-third of the countries. The key findings of the examination were the following:
- high concentration of media ownership with a significant barrier to diversity of information and viewpoints represented in media content as a result;
- lack of transparency of media ownership, which makes it difficult for the public to understand the biases in media content;
- media authorities in many countries were under strong political pressure, in particular with regard to appointment procedures and composition of authorities;
- underdeveloped media literacy policy;
- lack of adequate access to media; and
- underrepresentation of women in media.
In November 2016, the Commission organised a Colloquium on Fundamental Rights focusing on media pluralism and democracy, including topics such as: how to protect and promote media freedom and independence from state intervention or undue political or commercial pressures; how to empower journalists and protect them from threats of physical violence or hate speech; and the role of media and ethical journalism in promoting fundamental rights. In the course of the pending review of the AVMS Directive, the Commission intends to further strengthen media freedom and pluralism in the EU. However, no explicit legislative proposals have been issued at this stage.Key trends and expected changes
Provide a summary of key emerging trends and hot topics in media regulation in your country.
As a part of the Digital Single Market Strategy, revealed in May 2015, the AVMS Directive is currently being reviewed by the Commission.
In 2015, the Commissioned launched a public stakeholder consultation to assess the AVMS Directive under the new Regulatory Fitness evaluation process. This consultation was followed up on 25 May 2016 with a proposal to update the regulatory framework and to adapt the AVMS Directive to recent developments in the media sector. The proposal focuses on extending the scope of the Directive and to improve rules for on-demand services as well as access to public service content. The European Parliament and the European Council are currently reviewing the Commission’s proposal. They intended to reach an agreement before the end of 2017, however, on 25 April 2017 the European Parliament’s Committee on Culture and Education voted to amend the proposal. The revised AVMS directive was adopted by the European Council on 6 November 2018.
The implementation of a new Directive on contracts for the supply of digital content is still ongoing. On 8 June 2017, the European Council adopted its position on the Directive, which will provide a high level of protection and legal certainty to European consumers and suppliers when purchasing and selling goods or services cross-border. The main elements of the European Council’s position included a wider scope of the Directive, a ‘second right’ of suppliers of digital content in case of lack of supply, and a time limit for supplier’s liability of not less than two years. The European Parliament adopted a report on the proposal and, in March 2018, it has been decided to enter into interinstitutional negotiations.
On 14 September 2016, the Commission presented a combination of legislative and non-legislative measures to modernise the EU copyright rules, including a proposal for a Regulation of the European Parliament and of the European Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes. The objective of the draft regulation is to promote the cross-border provision of online services ancillary to broadcasts and to facilitate digital transmissions to other EU member states. The regulation would complement the existing Satellite and Cable Directive that already facilitates cross-border satellite broadcasting and transmission of TV and radio programmes by cable from and to other EU member states. The draft regulation proposes further rules, in particular, on the licensing of certain online transmissions of broadcasting organisations and expanding collective management of retransmissions of television and radio programmes to help broadcasters that also make their content available online in other EU member states. The legislative proposal has been sent to the European Parliament and to the European Council for review, amendment and adoption. It seems there are still disagreements on the side of the member states and the European Council presidency is seeking guidance on outstanding issues to unlock the negotiations. The Directives must then be implemented by each member state through local legislation, whereas the Regulations will become immediately binding on the member states following their effective dates.
The Commission conducted a public consultation on ‘fake news’ in the period of 13 November 2017 to 23 February 2018. The aim of the consultation was to help assess the effectiveness of current actions undertaken by market players and other stakeholders, the need for scaling them up and introducing new actions to address different types of fake news. The Commission published a report in April 2018 which stated that there is a common perception among respondents that fake news in general is highly likely to cause harm to society in the areas of political affairs, immigration, minorities and security. The results of the consultation show that respondents ask for action to reduce the spread of disinformation online and in particular the role of online social platforms was highlighted. Whether or not concrete regulatory actions will follow from this consultation, and what those are, remains to be seen.