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Media
i Restrictions on the provision of serviceAs a general rule, audiovisual service providers enjoy programming freedom; however, the GAL establishes certain service obligations and restrictions to protect other general interests such as those of consumers, children's rights, cultural and linguistic diversity, and political pluralism in the news.
Quota obligationsAt least 51 per cent of annual broadcasting time (excluding, inter alia, news, sports events and advertisements) of each channel or set of channels must be reserved for European works. Moreover, 50 per cent of that quota must be reserved for European works in any of the official Spanish languages. Regarding annual broadcasting time, 10 per cent must be reserved for independent producers of European works, and half of this 10 per cent must have been produced in the past five years.
With respect to non-linear audiovisual services over which a service provider has editorial responsibility, 30 per cent of the catalogue of programmes must be reserved for European audiovisual productions, and half of that 30 per cent for European audiovisual productions must be in any of the official Spanish languages.
These obligations have also been imposed on subscription-based video on demand providers, such as Netflix, as they are included in the subjective scope of the new GAL. It imposes on them the obligation to dedicate part of their programming content to European audiovisual works.
Financing obligationsTV service providers whose programming includes full-length feature films, television films and series, documentaries, animated series or short films produced less than seven years ago must contribute, on a yearly basis, 5 per cent of the total income from the previous fiscal year (6 per cent for public broadcasters), according to their accounts, to the pre-financing of the production of certain audiovisual works such as full-length feature films, television films and series, documentaries, animated series and short films. Seventy per cent of such percentage shall be destined to financing independent producers. Judgments of the Spanish Constitutional Court in case STC 035/2016 dated 3 March 2016, and of the Supreme Court in case STS 1665/2016 dated 7 July 2016 have confirmed the legality of this obligation on the grounds that it does not violate the principle of freedom of individual enterprise.
The GAL has been developed by Royal Decree 988/2015 and Royal Decree 241/2019 of 5 April, which regulate the legal regime applicable to financing obligations for European audiovisual works.
The new GAL has also (1) extended this obligation to subscription-based video on demand providers, which must use part of their revenue in Spain to finance European audiovisual works; and (2) reinforced the promotion of European audiovisual works by increasing investment obligations.
Payment obligationAccording to the RTVE Financing Law19 and Royal Decree 1004/2010, since September 2009, private audiovisual communication services operators must pay 1.5 per cent (for pay-TV) and 3 per cent (for free-to-air TV) of their television and other audiovisual communication services revenue on a yearly basis for the financing of the public broadcaster RTVE, since advertising was banned from RTVE's broadcasting. This obligation was challenged by one of the Spanish audiovisual operators (DTS Distribuidora de Televisión Digital, SA) before the Court of Justice of the European Union, although the court confirmed on November 2016 that the European Commission's authorisation of such financing obligation is compliant with EU legislation (case C-449/14 P).
Several changes have been introduced in this regard by the new GAL , including:
- the possibility of enabling new sources of income for RTVE, so that it can obtain revenue from advertising (e.g., sponsorship or advertising on its digital contents);
- removing telecoms operators' direct contributions to date;20 and
- imposing on subscription-based video on demand providers the obligation to contribute to the financing of the public broadcaster to guarantee a level playing field between traditional and new audiovisual service providers.
While there are no specific advertising restrictions on radio services (other than those set out in the General Advertising Law),21 TV service providers must fulfil certain advertising-related obligations, which for linear services include the obligation to broadcast a maximum of 12 minutes of commercials per hour. The GAL has been developed by Royal Decree 1624/2011 on certain aspects of television commercial communication (self-promotion, tele promotion and sponsorship).
However, the new GAL has modified this regulation by introducing additional advertising restrictions in terms of broadcasting scheduling to certain controversial matters such as alcoholic beverages or esoterism.
Additionally, the Spanish government has recently published Royal Decree 958/2020 of 3 November on commercial gambling communications. This new regulation has substantially restricted advertising gaming activities in audiovisual communication services.
Other content-related restrictions and obligationsThere are also specific content-related restrictions, including those intended to protect children that are of the utmost importance.
First, audiovisual services providers must not use children's voices and images without their consent or that of their parents or legal guardians.
Second, the broadcasting of content that may seriously impair the development of minors (e.g., pornography or gratuitous acts of violence) is forbidden, and other content that may also be harmful for minors (such as gambling) may only be broadcast within certain time slots.
The law also establishes reinforced protection for certain time slots that are considered to be accessible by children. In this regard, the new GAL has reinstated the afternoon reinforced protection slot in free-to-air TV. Furthermore, to facilitate parental control, all audiovisual service providers must use digital encryption to classify their content, and TV service providers must use an age rating system according to the guidelines issued by the relevant authorities. In July 2015, the NMCC published the Guiding Criteria for the Classification of Audiovisual Content, which indicate content that is harmful, and on the other hand beneficial, to minors. Under the Criteria, and depending on the content of a programme, a grade is given that ranges from 'for all audiences' to 'not suitable for minors under 18 years old'.
With regard to sports content, additionally to the provisions of the GAL with regard to exclusivity agreements for the broadcasting of relevant sport events, Royal Decree-Law 5/2015 sets out the rules for the commercialisation of certain Spanish football content, and establishes the criteria to distribute the relevant income among organisers and participants in various competitions. This Royal Decree has been recently modified by Royal Decree-Law 15/2020 and Royal Decree-Law 15/2021 to include urgent complementary measures to support the economy and employment to facilitate the transfer of private resources generated by football to public policies related to the promotion of sports practice.
The NMCC also supervises the enforcement of these content restrictions in the audiovisual communication market. In fulfilling this duty, it has been exercising its sanctioning powers very intensively since 2016 and up to the present date against TV services providers for breaching the Advertising Law and the Guiding Criteria for the Classification of Audiovisual Content.
Disabled personsFurther obligations (i.e., subtitling, audio-description and deaf sign language quotas) are included and aimed at ensuring disabled people have the widest possible access to TV services, which the new GAL has developed, such as setting a minimum percentage of accessible content that must be provided. These obligations have also been imposed on new audiovisual services' providers (e.g., pay linear TV and on demand and non-linear providers).
ii Non-linear servicesStand-alone non-linear services (e.g., video-on-demand (VOD) streaming services) in 2022 are fully consolidated among Spanish users and the market as a whole. In some cases, these services operate independently, while in others they operate through market arrangements with telecom companies.
The consolidation of web-based streaming services opened a debate regarding the law applicable to providers that operate in Spain under the EU freedom to provide services rules, as for some issues the GAL will apply, while others may be subject to the e-Commerce Law.
The European Commission took the lead on this issue by launching the Proposal for a Directive that led to the passing of the New Audiovisual Media Services Directive, which established specific rules addressing these kinds of services and which has been fully transposed by the new GAL, which aims to guarantee a level playing field between OTT platforms and current audiovisual service providers by imposing new obligations on non-linear services (e.g., in relation to protecting minors and the public interest).
iii Mobile servicesThe provision of mobile television audiovisual services and other ancillary services has been specifically regulated in the GAL. According to this regulation, the provision of mobile television services requires operators to obtain a licence on the same terms as those set out for general audiovisual services as detailed in Section II.iii.
