EU regulatory framework covering audiovisual platforms - Cross-cutting perspective & policy options

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EU Regulatory framework covering

audiovisual platforms

Cross-cutting perspective

& policy options

Michèle Ledger

March 10, 2016


EU framework

National frameworks

Options


What are audiovisual platforms?

Audiovisual media service (AVMS)?

Electronic Communications Service (ECS)?

Information society service (ISS)?

Ordinary service?

If established in the EU


What are audiovisual platforms?

Audiovisual media service (AVMS)?

• If editorial responsibility

• Excludes those that merely transmit services where editorial responsibility lies with third parties

• No

Electronic Communications Service (ECS)?

• If mainly or wholly the conveyance of signals

• Cable, satellite, IPTV, DTT: Yes

• OTT: no

Information society service (ISS)?

• If remuneration, at a distance, by electronic means and at the individual request’

• OTTs: Yes

Ordinary service?

• OTTs: Yes


AVMS Directive

E-commerce Directive

Telecoms rules

EDITORIAL RESPONSIBILITY

A strange situation

MAINLY OR WHOLLY THE

CONVEYANCE OF SIGNALS

EXCLUDES THE CONTENT

OF SERVICES DELIVERED

EXPLICITLY EXCLUDES THOSE

THAT MERELY TRANSMIT

PROGRAMS FOR WHICH

EDITORIAL RESPONSIBILITY LIES

WITH ANOTHER PARTY

SERVICE PROVIDED AT A

DISTANCE BY

ELECTRONIC MEANS AND

AT INDIVIDUAL REQUEST

OF A RECIPIENT OF A

SERVICE


Regulatory consequences

AVMS Directive Telecoms Package Electronic Commerce

Directive

Country of origin - Country of origin

Regulator in charge Regulator in charge -

(“there can be no prior

authorisation”)

Content rules (minors,

quotas, advertising,…)

- Light touch rules on

advertising

- Access to networks (if SMP) -

-

(but benefit if linear) Must carry

-

-

(but benefit if linear)

Access to EPG, API (even if

no SMP)

-


EU framework

National frameworks

Options


Some MS have a special category

France, Germany, Spain, Belgium, Sweden

But many member states don’t

Audiovisual platforms are defined differently

Companies which set up contractual relationships with TV channels

(and VOD service providers) with a view to proposing an offer of

audiovisual services to viewers

These frameworks are contained in the audiovisual laws, and

regulators have a role to play….


Varied policy objectives

Ownership/pluralism Protection of minorsAccessibility requirements

Copyright PricingInvestment

obligations into content creation

Financing local TVFair access

requirements

Role for regulator to intervene in dispute resolution between

channels and network operators


EU framework

National frameworks

Options


A few fundamental questions to consider

Rules only for audiovisual platforms

Rules for influential audiovisualplatforms

Rules for all platforms


Do nothingAmend Electronic

Commerce DirectiveExtend scope of

AVMS

Extend scope of telecoms package

Create new category at EU level

Scrap sector specific rules, replace by

horizontal legislation

EU Jurisdiction


Do nothing

• Member States can and already have

introduced special rules for platforms

• But, country of origin principle, so forum

shopping

• Creates tensions among Member States


Amend the Electronic Commerce Directive

• OTT platforms are ISS anyway, so this is the

natural place

• No regulator in charge, but is this

normal/desirable?

• Add rules on the protection of minors,

accessibility, transparency etc..

• Reconsider liability


Amend AVMS Directive to cover platforms

• Non-linear services are already a bit like

platforms

• Extend obligations of non linear to platforms

• Incorporate rules on must carry/access to

platforms and findability


Extend the telecoms package

• Amend definition of ECS to cover operators that

don’t provide technical transmission but that

provide connectivity

• Must carry/access requirements would naturally

cover them

• Would give regulators power to intervene in

case, but perhaps not the media regulators


Create a new category at EU level?

• No, we already have enough

+ Already enough inconsistencies!


Some inconsistencies

Ecom

Directive

Services

Directive

e-Privacy

Directive

USO

Directive

Proposed

directive on

digital content

ISS v v

To the extent

that no

contradiction

with Ecom

Directive

-

(except for cookies

and unsolicited

commercial

communications)

- v

ECS -

(Except

liability)

- v v -

AVMS - - -

(except for cookies

and unsolicited

commercial

communications)

- v


Scrap sector specific instruments

and just go with horizontal

Consumer

Rights Directive

Unfair

Commercial

Practices

Directive

Data Protection

Regulation

Copyright

Directive

ISS v v v v

ECS v v v v

AVMS v v v v


EU jurisdiction

• We have a precedent: General Data protection Regulation

• Will apply to controllers and processors not established in

the EU that:

• offer goods or services to data subjects in the EU; or

who

• monitor their behaviour

• Controllers and processors not established in the EU but

subject to the GDPR would have to designate a

representative in the EU, unless they process personal data

occasionally and without a risk for the rights and freedoms

of individuals.

• BUT DOES IMPLY CAPACITY TO CONTROL


The time is right to rethink

Review of AVMS

directive

Review of telecom package

Competitionsector enquiry

into e-commerce

Review of the copyright

framework

Commission consultation

role of platforms


[email protected]

EU regulatory framework covering audiovisual platforms - Cross-cutting perspective & policy options

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