Media

Regulatory and institutional structure

Summarise the regulatory framework for the media sector in your jurisdiction.

Articles 167 and 173 of the Treaty on the Functioning of the European Union (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 European Commission (the Commission) is responsible for any media policy.

Within the EU, audiovisual media services (including broadcasting and on-demand services) are to a broad extent regulated under the Audiovisual Media Services Directive 2010/13/EC (the 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 providing programmes, to inform, entertain or educate, to the general public by electronic communications network’ (see article 1, paragraph 1a, AVMS Directive). On 6 November 2018, the Commission adopted a revised version of the AVMS Directive, Directive 2018/1808 (AVMS Directive 2.0). Member states must transpose the new rules into their national legislation by 19 September 2020. AVMS Directive 2.0 shall ensure that European regulation is adapted to the advanced convergence of audiovisual media services and current technological developments. 

AVMS Directive 2.0 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), as well as video-sharing platforms (which, without bearing editorial responsibility, provide programmes and user-generated videos, or both). Under AVMS Directive 2.0, all three services are subject to tight regulations. 

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 in particular aimed to harmonise national rules on:

  • regulation of television broadcasts, including satellite broadcasts, under the ‘country of origin’, 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).

 

AVMS Directive 2.0 added in particular the following new elements:

  • providing broadcasting companies with more flexibility on the time frame of television advertising;
  • the general permission of product placement;
  • 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. 

 

In February 2018, a new Regulation (EU) 2018/302 on addressing unjustified geo-blocking and other forms of discrimination (‘Geoblocking Regulation’) was adopted, which entered into force on 22 March 2018. The regulation took effect on 3 December 2018. It shall prevent geo-blocking, i.e. businesses from discriminating (private or commercial) end customers in obtaining goods or certain services being offered within the EU. To this end, the following measures are prohibited:

  • electronic measures blocking or restricting the access of end customers to online offers of goods or (non-finance, -gambling, -healthcare, and -transportation) services based on the nationality, residence or place of establishment of the customer, and
  • indirect restrictions on cross-border online trade, including discriminatory use of general terms and conditions (including prices, conditions and acceptance of payment methods).

 

The Regulation generally covers audiovisual copyright content, but not audiovisual content (such as e-books, online music, software and videogames). It remains to be seen whether the Commission will include audiovisual services in the scope of the Geoblocking Regulation when it is revised for 2020.

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 (2.0).

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 any of 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. AVMS Directive 2.0 includes new provisions on the transparency of media ownership (recitals 15 and 16, article 5). According to the Commission, these provisions will have positive spillover effects on media pluralism. The revised Directive particularly allows member states to adopt legislative measures, obligating service providers under their jurisdiction to make accessible information concerning their ownership structure, including the beneficial owners. As far as Germany is concerned, the final proposal of the State Media Treaty implementing the revised AVMS Directive – currently under review by the Commission – does not make use of such legislative permission. 

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 that 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.

 

AVMS Directive 2.0 further introduced, among other things:

  • prohibition of incitement to violence or hatred directed against any groups or members of such groups because of an affiliation to one of the categories that are subject to equal treatment principles (eg, race, religion or nationality), article 21 of the EU Charter of Fundamental Rights;
  • prohibition of public provocation to commit a terrorist offence; and
  • even stronger rules on commercial communications for alcoholic beverages. 

 

Member states are not entitled to apply less stringent rules to broadcasters but may impose stricter rules on audiovisual media service providers under their jurisdiction, provided that these do not violate fundamental 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. 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.

AVMS Directive 2.0 introduced a content quota according to which providers of non-linear services must secure at least a 30 per cent share of European works in their catalogues and ensure prominence of those works. However, this quota shall not apply to media service providers with a low turnover or a low audience.

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 or as video-sharing platform.

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. Under the AVMS Directive, the proportion of television advertising and teleshopping spots within a given clock hour was not permitted to exceed a total of 20 per cent. Under the AVMS Directive 2.0, broadcasting companies are provided with more flexibility on the time frame of television advertising, changing the limit for advertising from 20 per cent per hour to 20 per cent per day (between 6am and 6pm and between 6pm and 12pm). 

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. AVMS Directive 2.0 also widely waived the ban on product placement.

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.

AVMS Directive 2.0 introduced a content quota of 30 per cent share of European works. Where member states require media service providers under their jurisdiction to contribute financially to the production of European works, including via direct investment in content and contribution to national funds, they may also require media service providers targeting audiences in their territories, but established in other member states to make such financial contributions, which shall be proportionate and non-discriminatory. 

Such financial contribution shall be based only on the revenues earned in the targeted member states. If the member state where the provider is established imposes such a financial contribution, it shall take into account any financial contributions imposed by targeted member states. However, the obligation to contribute financially on the production of European works shall not apply to media service providers with a low turnover or a low audience.

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.

Regulation (EU) 2017/1128 on cross-border portability of online content services (the Portability Regulation) obliges providers of online content, including audiovisual media services, to enable paying subscribers to access and use such service under terms equal to the offering at each subscriber’s residence, within all EU member states.

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 (the 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 (i) the supply of digital content and services and (ii) online and other distance sales of goods. These initiatives were followed by two new Directives:

Directive (EU) 2019/770 ‘on certain aspects concerning contracts for the supply of digital content and digital services’ was enacted on 10 June 2019. It will be transposed into member states’ national law by 11 June 2021. This Directive creates a holistic framework for business-to-consumer transactions regarding digital content and digital services. ‘Digital content’ means data created and made available in digital form (eg, audio and video contents, video games and other software). Digital services are such that enable (i) processing of or access to digital data; or (ii) interaction with data uploaded by any user of the service (eg, OTT-communications services). Member states are free to adopt this framework to business-to-business transactions as well. The Directive stipulates criteria for defects in digital content and services, and minimum standards for sellers’ warranty obligations (eg, provision of updates). Guidance on the relation between (IT/cybersecurity) vulnerabilities and defectiveness in such products, however, is not included. Warranty obligations for digital content and services might also be imposed on sellers of hardware with pre-installed software (apart from those according to Directive (EU) 2019/771). 

Directive (EU) 2019/771 ‘on certain aspects concerning contracts for the sale of goods’ entered into force on 11 June 2019. It will be transposed into member states’ national law by 1 July 2021 and enforced no later than 1 January 2022. The initial proposal envisages the regulation of online and other distance sales of goods. However, the enacted version aims to ensure proper functioning of the internal market, while providing consumers with a high level of protection. It does so by laying down certain common rules on sales contracts between sellers and consumers. These cover conformity of goods with the contract; remedies if there is no conformity; ways to exercise these remedies; and commercial guarantees. 

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 of the AVMS Directive assumed the independence of audiovisual media regulators. However, under the AVMS Directive, there were 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 (the 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. 

AVMS Directive 2.0 includes new provisions on the independence of regulators (recital 53 and article 30) and transparency of media ownership (recitals 15 and 16, article 5). According to the Commission, these provisions will have positive spillover effects on media pluralism (European Commission, 8 November 2018, answering parliamentary question on concentration of media ownership). AVMS Directive 2.0 particularly allows member states to adopt legislative measures, obligating service providers under their jurisdiction to make accessible information concerning their ownership structure, including the beneficial owners. As far as Germany is concerned, the final proposal of the State Media Treaty implementing AVMS Directive 2.0 – currently under review by the Commission – does not make use of such legislative permission.

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, the Commission adopted a revised version of the AVMS Directive, Directive 2018/1808 (AVMS Directive 2.0) on 6 November 2018. Member states must transpose the new rules into their national legislation by 19 September 2020. The new rules 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 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. Based on the results of its public consultation, the Commission identified core issues and proposed several measures to tackle disinformation campaigns spread via the internet in its communication COM (2018) 236, published in April 2018. One of the suggested measures, a Code of Practise on Disinformation, was implemented on a self-regulatory basis by online platforms and the advertising industry in September 2018. Regulations thereunder include terms of depriving advertising revenues from disinformative websites, ensuring transparency about sponsored content and trustworthiness of contents in general, and establishing clear rules for bots.

Considering the advent of elections in 2019 (inter alia for European Parliament), however, the Commission identified the need for further action. In September 2018, it published a communication on securing free and fair European elections (COM (2018) 637). Member states are called to implement adequate measures, involving different sectors, stakeholders and (technical) means, to safeguard election processes against targeted disinformation campaigns and other undue interference (eg, cybersecurity threats, illegal funding). 

In December 2018, the Commission published an action plan against disinformation (JOIN (2018) 36), introducing a concept for the protection of the EU’s core democratic values. This involves establishing specialised institutions for identified disinformation campaigns and threat sources, uniform mechanisms for coordinated countermeasures, whereas both civil society and private-sector companies form integral parts in these plans.

Law stated date

Correct on

Give the date on which the information above is accurate.

31 March 2020