General Principles of the AVMSD

Technological neutrality

The Audiovisual Media Services Directive (AVMSD) covers all services with audiovisual content, irrespective of the technology used to deliver the content. The rules apply whether you watch news or other audiovisual content on TV, the Internet, cable or your mobile device. Taking into account the degree of choice and user control over services, the AVMSD makes a distinction between linear (television broadcasts) and non-linear (on-demand) services.

Graduated regulation

The distinction between traditional TV channels and on-demand services is the basis for a two-tier regulatory approach. The Directive acknowledges a set of core societal values applicable to all audiovisual media services. However, it provides lighter regulation to on-demand services where the users have a more active role, deciding on the content and the time of viewing.

All audiovisual media services have to respect the basic tier of obligations in the following areas:

• identification of media service providers
• prohibition of incitement to hatred
• accessibility for people with disabilities
• qualitative requirements for commercial communications
• sponsoring
• product placement

Stricter rules in the areas of advertising and protection of minors are foreseen for television broadcasts due to their impact on society.

Scope

Audiovisual media services

Audiovisual media services are:

• television broadcast;
• content selected by viewers ("on-demand") over an electronic communications network (typically Connected TV sets, mobile devices or the Internet) for watching at a time of their choice;
• audiovisual advertising.

More specifically, such content is provided:

• commercially, i.e. not on private individuals' websites;
• for the general public, i.e. not including any form of private correspondence;
• as a programme, not including websites containing ancillary audiovisual elements such as graphical elements or short adverts;
• under the editorial responsibility of a media service provider – meaning they control the selection and organisation of the programmes.

Television broadcasts — linear services

Programmes provided by a media service provider at a scheduled time and watched simultaneously by viewers.

Rules in the Directive that apply to TV broadcasts only:

• events of major importance and short news reporting (Chapter V)
• quotas for promotion and distribution of European television programmes (Chapter VI)
• time limits for TV advertising and teleshopping (Chapter VII)
• stricter rules on the protection of minors (Chapter VIII)
• right of reply (Chapter IX)

On-demand services — non-linear services

Programmes users select from a catalogue offered by the media service provider, to watch at their own convenience.

Rules in the Directive that apply to on-demand services only (Chapter IV):

• protection of minors (Article 12)
• general promotion and distribution of European works (Article 13)

Common Rules

The Directive contains the following rules that apply to both TV broadcasts and on-demand content:

• encouraging co-regulation and self-regulatory regimes (Article 4 paragraph 7)
• identifying the media service provider (Article 5)
• incitement to hatred (Article 6)
• accessibility for people with disabilities (Article 7)
• transmission of cinematographic works (Article 8)
• requirements for audiovisual commercial communications (Article 9)
• sponsoring (Article 10)
• product placement (Article 11)

Freedom of reception & retransmission

EU governments may not restrict which broadcasts people can receive or what programmes foreign broadcasters can retransmit in their country if the broadcasts comply with the EU Audiovisual Media Services Directive in the country where they originate. In case of disputes between countries where circumvention of rules occur, the Directive contains a two step procedure.

EU governments can restrict the reception of certain content, such as incitement to hatred, which may not be banned in its country of origin but violates local laws.

Any restrictions must first be approved by the Commission following an established procedure and are only allowed under exceptional circumstances.

• for TV broadcasts (Article 3(2)-(3)), there must be manifest and serious violations against human dignity (incitement to hatred) or children (e.g. pornography, gratuitous violence).
• for on-demand content (Article 3(4)-(6)), restrictions are also justified where it constitutes a grave risk to other aspects of public policy, health or security, or consumers.

Restrictions must be proportionate and applied only in the country of reception. The country where the content originates has to be given advance notice.

The Directive contains a 2-step resolution procedure for disputes between countries in case of circumvention of stricter rules:

Non-binding request

If a country objects to the content of a foreign television broadcast wholly or mostly targeted at it, it can ask the authorities in the broadcast’s country of origin to issue a non-binding request for the broadcaster to comply with the rules of the targeted country. Factors determining whether a country is “targeted” include: origin of advertising or subscription revenues, main language, targeted advertising, and more.

Binding restrictions

If the broadcaster circumvents the objecting country’s rules, the authorities there can impose binding restrictions with the Commission’s prior approval, and provided the measures are solely a response to the circumvention. Binding measures could include banning retransmission (cable, terrestrial, IPTV), advertising for the broadcasts or programmes, advertising of local companies (under own jurisdiction), publication in printed or electronic programme guides or sale of subscriptions/smart cards for pay-TV.

Stricter rules

Member States are free to apply more detailed or stricter rules in the fields coordinated by the AVMSD to media service providers under their jurisdiction, provided those rules are consistent with the general principles of EU law.

As an example, Member States are able to lay down more detailed or stricter rules on television advertising. However, these rules must be in conformity with EU law and not applicable to the retransmission of broadcasts originating in other Member States.

Member States are also free to maintain or set more detailed or stricter rules with respect to television advertising with a view to ensuring that the interests of television viewers are fully and properly protected. In certain circumstances they can lay down different conditions for television broadcasters under their jurisdiction.

Transparency Requirements

The AVMSD obliges Member States to ensure that users have easy and direct access at any time to information about the media service provider. Service users must have access to the provider's name and address, including its electronic address or website and the competent regulatory or supervisory authority.

Jurisdiction

The authorities in each EU country must ensure all audiovisual media services originating there comply with their own national rules giving effect to the AVMSD. The system also ensures that broadcasters who have an impact on EU audiences are covered by the directive even when they are not established in the EU. EU authorities can exercise power via up-links located on their territory or the use of satellite capacity.

Country of Origin principle

Providers only need to abide by the rules of a Member State rather than in multiple countries — making things simpler for service providers, especially those wishing to develop cross-border business.

If any EU country adopts national rules that are stricter than the Directive, as they are free to do, these can only be applied to providers in that jurisdiction.

How is jurisdiction decided?

To avoid cases of double jurisdiction or absence of jurisdiction, each provider of media services comes under the jurisdiction of one and only one EU country for the purposes of the Directive.

This will depend chiefly on where their central administration is located and where management decisions are taken on programming or selection of content. Further criteria include the location of the workforce and any satellite uplink, and the use of a country’s satellite capacity.