Audiovisual Media Services Directive Research Articles

Monitoring the independence of the media regulatory body as an effective enforcement mechanism for the implementation of the AVMSD

The revised Audiovisual Media Services Directive (AVMSD) has brought about the long-awaited policy shift towards making the independence of regulatory bodies an explicit European legal requirement. At the same time, even on the points that it does regulate in detail, the AVMSD leaves many issues unresolved. Ultimately, it does not put the European Commission in a position either to verify whether national authorities are taking truly unbiased and impartial decisions or to enforce that they do.

OTT 성장과 방송 규제체계 개편

The media content market is rapidly reorganizing around global OTTs. Global OTTs are leading the domestic content industry. The problem that arises here is the regulatory imbalance between traditional broadcasting and new OTT. The Broadcasting Act is based on a terrestrial-centered broadcasting regulatory system and has evolved to include new media as they emerge due to technological advancements. As a result, traditional broadcasting, which is subject to the Broadcasting Act, is heavily regulated, while OTT, a new platform, is excluded from regulation. There is a strong argument for bringing OTT and broadcasting under the same regulatory framework.
 Since OTT does not transmit to the public, it does not fall under the concept of broadcasting under the Broadcasting Act. Those who argue for a constitutional broadcasting concept believe that the legislator can form a broadcasting concept, so it is possible to regulate OTT by amending the Broadcasting Act. However, the constitutional broadcasting concept is a legal concept from the past when the influence of terrestrial broadcasting was huge, and it is not valid in today's diversified media environment. Legislation that includes OTT in the broadcasting concept goes against the very nature of broadcasting. It is necessary to enact legislation that creates a new concept that encompasses both OTT and broadcasting, such as the European Union's Audiovisual Media Services Directive.
 It is not an easy task to completely reorganize the broadcasting law and establish a horizontal regulatory system that regulates all video services, including OTT. In Korea, revising the broadcasting law is a highly political issue. The task of reducing the strong public ideology of the broadcasting law and ensuring fair competition among video services is likely to lead to political debate. As the environment of the media content ecosystem is rapidly changing, it is important to prioritize the reform of the regulatory system. It is most urgent to revolutionize the excessive regulations imposed on traditional broadcasting to enable fair competition between traditional broadcasting and OTT. It is realistic to pursue a horizontal regulatory system transformation, including OTT, as a mid- to long-term task. Considering the public's high expectations for public responsibility in broadcasting, legislation that separates public media from commercial media is a feasible way forward.

A missed opportunity for public health: How impact assessment shaped EU rules on the marketing of unhealthy commodities to children

BackgroundThe 2015-2018 revision of the European Union's Audiovisual Media Services Directive, which governs the marketing of alcohol and unhealthy food to minors, failed to align with international best practice. Previous research has explained this ‘missed opportunity’ with reference to deficient political will, difficulties advocating for health, and industry pressure. We explore another explanation: the role of the impact assessment (IA) process in shaping decision-making. MethodsWe first conducted an in-depth comparison of three versions of the IA report, employing qualitative content and framing analyses to establish what changed in the substantive content, framing, and evidence cited. Second, we used process-tracing, a qualitative method drawing on multiple data sources, to explore causal mechanisms, to assess why these changes occurred. Data sources include policy documents published proactively and obtained through access-to-document requests. FindingsPreviously unpublished versions of the IA report show that stronger rules on advertising were preferred early in the policy process but later abandoned, and that concern for ‘balancing’ consumer protection and competitiveness shifted to focus on the latter. Following review by the Regulatory Scrutiny Board, a revised IA report narrowed the policy options, removing a requirement for member states to prevent childrens' exposure to alcohol advertising. Consequently, decision-makers were provided with an IA that did not offer adequate information on available measures to protect children. InterpretationChanges made during the IA process, which determines the policy options presented to decision-makers, side-lined health concerns. We argue that engaging with the institutional structures which shape decision-making is crucial for those working to further public health.

10.A. Round table: Food marketing regulation and civil society mobilisation

Abstract For over 20 years, the EU has struggled to protect children from the harmful impact of food marketing even though food marketing has been identified as an important contributor to unhealthy food environments and diet-related diseases. Overall, political will has been insufficient to implement the WHO recommendations on the marketing of foods and non-alcoholic beverages to children in Europe. In particular, the Audiovisual Media Services Directive - the main EU legislative instrument intended to serve this purpose - contains major gaps, and its limited scope has promoted the shifts of marketing investment from regulated to unregulated programmes and media, leaving children insufficiently protected from exposure to unhealthy food marketing. Moreover, and perhaps even more fundamentally, the Audiovisual Media Services Directive relies primarily on the establishment of public-private partnerships and the adoption of industry codes of conduct, even though it is increasingly established that such regulatory mechanisms are not suitable to achieve the objective they pursue. This lack of political will to effectively regulate food marketing to protect children from its harmful impact is all the more striking if one considers the growing recognition in Europe and beyond that food marketing should be envisaged not only as a global health issue but also as a major child rights concern. Various Council Presidency Conclusions (e.g. Malta in 2017, Bulgaria in 2018) and the EU Strategy on the Rights of the Child (2021) all call on the EU to protect the right of the child to good nutrition through the regulation of, among others, food marketing. The need to address food marketing is further reinforced by the various actions that are ongoing in the EU, including the Best ReMaP joint action, and the forthcoming adoption by the WHO of a Guideline on policies to protect children from the harmful impact of food marketing. This one-hour workshop proposes to discuss how the renewed mobilisation of civil society organisations across Europe, working closely with the academic community, can use this framing of food marketing as both a public health and a human rights concern. In particular, it will reflect on the human rights arguments that can be used to promote better health for all. Two short presentations will consider specifically the role that 1) human rights and health impact assessments, and 2) the best interest of the child principle can play in promoting healthier food environments. It will then reflect specifically on the ongoing Food Marketing Initiative, which over 20 pan-EU federations of public health, consumer and children's rights organisations are leading. A panel discussion with several of the organisations involved in this Initiative will reflect on the landmark moments of this Initiative to date, and how it has helped to foster new thinking in this policy area which is crucial to promote healthier food environments for all. Key messages • Envisaging food marketing as a child rights issue offers new, potentially powerful arguments to ensure that children are better protected from its harmful impact. • New forms of civil society mobilisation can urge the EU and its Member States to act in light of existing evidence with a view to promoting healthier, more sustainable food environments for all. Speakers/Panelists Eleanor Brooks University of Edinburgh, Edinburgh, UK Amandine Garde Law & Non-Communicable Diseases Unit, Liverpool, UK Alba Gil European Public Health Alliance, Brussels, Belgium Dorota Sienkiewicz EuroHealthNet, Brussels, Belgium Emma Calvert BEUC, Brussels, Belgium

Directions for improving media standards during the electoral process in Ukraine, taking into account the experience of leading European countries

The article identifies the ways to improve the standards of media work during the electoral process in the context of Ukraine’s European integration and takes into account the experience of leading European countries.
 The influence of the media on the establishment of democracy in Ukraine is especially relevant during the electoral process, so the scientific community needs to develop a unified approach to understanding the standards of media work, including during elections.
 At the level of the European Union, a number of acts have been adopted that are sources of media standards and are applied during the electoral process: The European Union Charter of Fundamental Rights, the Audiovisual Media Services Directive, the Enhanced Code of Practice on Disinformation, and the Code of Good Practice in Electoral Matters. In some EU countries, there are self-regulatory bodies, such as the Press Council or the Broadcasting Council, which are responsible for monitoring media compliance with ethical and professional standards.
 At the international and regional levels, there are organizations that participate in the formation of media standards, such as The International Federation of Journalists and the European Federation of Journalists. Ukraine is represented in these international organizations by The National Union of Journalists of Ukraine and the Independent Media Trade Union of Ukraine.
 Undoubtedly, Ukraine should continue to take into account international and EU practices in the field of media standards, as well as introduce mechanisms of media self-regulation, in particular, codes of conduct and internal ethics committees, establish an independent ombudsman to mediate between the media and citizens in cases of alleged violations of media standards during the electoral process, and change the procedure for appointing members of the National Council on Television and Radio Broadcasting.

Countering online hate speech: How does human rights due diligence impact terms of service?

The Internet is a global forum largely governed by private actors driven by profit concerns, often disregarding the human rights of historically marginalised communities. Increased attention is being paid to the corporate human rights due diligence (HRDD) responsibilities applicable to online platforms countering illegal online content, such as hate speech. At the European Union (EU) level, cross-sector initiatives regulate the rights of marginalised groups and establish HRDD responsibilities for online platforms to expeditiously identify, prevent, mitigate, remedy and remove online hate speech. These initiatives include the Digital Services Act, the Audiovisual Media Services Directive, the proposed Directive on Corporate Sustainability Due Diligence, the proposed Artificial Intelligence Act and the Code of conduct on countering illegal hate speech online. Nevertheless, the HRDD framework applicable to online hate speech has focused mostly on the platforms’ responsibilities throughout the course of their operations - guidance regarding HRDD requirements concerning the regulation of hate speech in the platforms’ Terms of Service (ToS) is missing. This paper employs a conceptualisation of criminal hate speech as explained in the Council of Europe Committee of Ministers’ Recommendation CM/Rec(2022)16, Paragraph 11, to develop specific HRDD responsibilities. We argue that online platforms should, as part of emerging preventive HRDD responsibilities within Europe, respect the rights of historically oppressed communities by aligning their ToS with the conceptualisation of criminal hate speech in European human rights standards.

The European Audiovisual Media Services Directive: Normative precursor in the global governance towards VoD platforms?

The commentary emphasizes the potential diffusion of the Audiovisual Media Services Directive (AVMSD) provisions in Australia, Mexico, South Africa and Canada. It argues that the revision of the AVMSD has changed the framework of possibilities for several public authorities in the audio-visual media sector and that today a dynamic wave of new provisions towards Video-on-Demand (VoD) streamers is taking place across several liberal democratic regimes. However, the commentary shows that even though transnational VoD services represent disruptive new actors, creating industrial, technological and institutional shock, the latter does not lead to the same political issue cross-nationally.

Screen agencies as policy intermediates between small nations and transnational SVoDs

This article presents original empirical research on the interaction between national screen agencies and transnational subscription video-on-demand services (SVoDs). Using interviews with agency executives in several small nations, it examines the dynamics of power that condition this relationship, framing the interactions as being instrumental and political for both actors. The commodified exchange between agency and SVoD builds mutual narratives of significance at a time of policy change in which both parties are likely to interact more due to the implementation of the EU’s Audiovisual Media Services Directive. This research provides further insight into ways non-regulatory interventions by policy actors attempt to secure more return from SVoDs.

Do Too Many Cooks Spoil the Broth? How EU Law Underenforcement Allows TikTok’s Violations of Minors’ Rights

For some time already, there have been concerns about TikTok’s business practices and their compliance with EU law. Different market investigations found out that TikTok’s Terms of Service do not comply with the Unfair Commercial Practices Directive, the Unfair Contract Terms Directive or the Consumers Rights Directive, and that they also infringe the General Data Protection Regulation and the Audiovisual Media Services Directive. This is particularly problematic considering that many children, a vulnerable category under the applicable law, use TikTok on a daily basis, which intensifies the severity of the infringements. Although the protection of minors is one of the policy objectives of the EU, this article argues that the enforcement structure is deficient. In view of TikTok’s practices infringing EU law, the European Consumer Organization, BEUC, called for an EU-level coordinated action to the European Commission and national authorities to request TikTok to align its practices with EU consumer law under the Consumer Protection Cooperation (CPC) Regulation. However, the developments following BEUC’s call for action revealed that the CPC Regulation is not sufficiently effective. Ultimately, the ongoing problems and the seemingly lenient interpretation and application of the CPC Regulation by EU authorities that allow the continuation of TikTok’s identified abusive and misleading practices provide evidence that the institutional apparatus for an EU-wide action for enforcement of consumer and data protection law is failing to deliver. This article provides a practical account of these developments and argues that “too many cooks spoil the broth”—i.e., that the plethora of rules, organizations, and procedures involved in enforcement paradoxically lead to the ineffectiveness of EU law. The paper takes the reconstruction of TikTok as a blueprint for discussing various options on how the existing enforcement structure of EU law in general, and CPC in particular, could and should be improved in light of the entry into application of the Digital Services Act.

The Watchdogs Network: A model for continuous monitoring of AVMSD rules

The Audiovisual Media Services Directive (AVMSD) overhaul in 2018 includes video sharing platform services (VSPs), which provide content in an automated way, including user-generated content (UGC). This change is tantamount to a paradigm shift, as these multi-sided platforms differ starkly from the actors that had previously been regulated under the AVMSD. The AVMSD seems to have answered the question, what kind of rules we need. However, problems of implementation and application will not become apparent until later, and only then will it become clear which of the VSPs’ measures are truly expedient and appropriate. To know which rules are precise enough to provide legal certainty while also dynamic enough to adapt to technological developments, we need permanent monitoring processes – as described in our governance cycle. The prerequisite for permanent monitoring processes is fair and transparent data accesses, the design of which is also a fundamental challenge, as we will explain by the house of data access. Continuous monitoring processes are complex procedures involving many layers of competence. But they are also opportunities to timely catch and quickly correct misdevelopments. By implementing the two-step watchdog model in a bigger network, undesirable developments can be recognized at an earlier stage, because watchdogs are strengthened as information purveyors.

Platform governance and the politics of media regulation: The review of the European Audiovisual Media Services Directive

The rapid expansion of video-on-demand platforms, such as Netflix or Disney Plus, associated with the advance of digital capitalism makes the Audiovisual Media Services Directive (AVMSD) adopted by the European Union a particularly relevant case for understanding the politics of the digital media policy. Based on an actor-centred constructivism, the article seeks to propose a conceptual approach to explore platform governance and highlight the key dynamics through which platform governance related to the media sector is formulated in light of the actors involved. As such, it provides an ‘in situ and in action’ view on normative building, introducing politics into the analysis of platform governance. The study focuses on the political framing of two key issues related to the crystallization of AVMSD: (1) the financial contribution of online platforms to European and national audio-visual content creation and (2) the presence and prominence of European and national audio-visual works in the online catalogues.

Editorial

This issue consists of six articles that have already been published via Online First and two book reviews. These cover themes such as the sustainability of media business models, Audiovisual Media Services Directive (AVMSD) rules in the European Union, sport TV and public policy.

An Innovative Approach to Overcoming the “Joint-Decision Trap”: EU Law Requirements for AVMSD-Based Financial Contributions from a Tax Policy Perspective

The legal regime for financial contributions, established in the Audiovisual Media Services Directive (2010/13) (AVMSD), differs fundamentally from other tax-related EU measures. Instead of prescribing a minimum standard, the AVMSD defines the legal boundaries in respect of implementation. This new approach might help the European Commission advance its agenda to increase the European Union’s influence in the area of taxation more effectively. This article assesses these developments from a tax policy perspective.

How does better regulation shape EU health policy? A case study of unhealthy advertising regulation

Abstract Introduction Better Regulation is a meta-regulatory tool designed to improve regulatory quality and reduce regulatory burden in the development of EU policy. Despite concerns by civil society that its operation may have a chilling effect on regulatory protections, its impact on health policy has not been researched systematically. Using provisions on high fat, sugar and salt (HFSS) food and alcohol advertising to children within the revision of the audiovisual media services directive (AVMSD) as a case study, we explore how the operation of Better Regulation affects EU health policy processes. Methods We employ a qualitative process tracing approach based on policy documents, Freedom of Information requests, media reporting, and expert interview data. Results After an evaluation in 2016, the revised AVMSD maintained a reliance on self- and co-regulation of alcohol and HFSS food advertising to children, despite significant evidence supportive of statutory measures and pressure from the public health community to strengthen provisions. This result aligns with calls from commercial actors to retain the status quo. Preliminary results indicate that pathways via which Better Regulation guidelines may have contributed to this outcome include, for instance, the structure and approach used in the impact assessment and the related scrutiny process, the design of the consultation strategy, and the evaluation criteria of the AVMSD proposal. Conclusions Considering how policymaking infrastructure - as a key political determinant of health - may shape the processes and dynamics underlying decision-making can support those working towards a policy environment which protects human and environmental health. In examining EU alcohol and HFSS food advertising provisions within the AVMSD revision through a focus on Better Regulation processes, we contribute a novel perspective towards explaining how measures to improve regulatory quality interact with actors’ agency to shape policy outputs. Key messages • The Better Regulation agenda should be understood as a key political determinant of health at the EU level. • Understanding the ways in which governance tools such as Better Regulation can shape health policy is important for those engaged in promoting effective and evidence-informed public health action.

TV Quotas Under the AVMS Directive After Brexit

The European Union (EU)’s Audiovisual Media Services Directive 2010/13/EU (AVMS Directive) requires broadcasters to seek to ensure that a majority of transmission time is dedicated to ‘European works’. The definition of eligible works for this cultural quota includes states party to the European Convention on Transfrontier Television (ECTT), of which twenty EU Member States and the UK are among the members. EU broadcasters can hence satisfy the quota with UK works. It appears, however, that post-Brexit the European Commission contemplates an attempt to exclude UK works from the definition, so as to enlarge the share of the market available to EU Member State producers. This article examines that ambition against the obligations of the EU and its Member States under the General Agreement on Trade in Services (GATS) and the ECTT, concluding that several obstacles stand in the way of achieving that policy goal. AVMS, ‘Television without Frontiers’, European works, broadcasting quota, Brexit, GATS

‘If you can’t beat them…’: AVMSD policy-making for Portuguese audiovisual production in the context of the small markets and of multistakeholderism

ABSTRACT The revision of the Audiovisual Media Services Directive (AVMSD) unlocked possibilities to legally frame the video-on-demand (VoD) services in Europe. This process put pressure on national systems and Member States. In Portugal, the initial governmental proposal for implementation did not contemplate a financial contribution from VoD to the national fund that supports Portuguese works. After a period of public consultation, the law included a 1% tax on those services’ revenues. Drawing on the Portuguese case, we discuss and critically analyse the policy-making process of the AVMSD implementation, assessing its outcomes and the perceptions of the stakeholders. Results indicate limitations and fragility of multistakeholderism. We argue that the smallness of Portuguese market is related to the State failing to implement an overarching policy concerning the cycle of film and TV production and to the fact that Portuguese cinema is now mostly left in the hands of VoD service providers.

The AVMSD as a harmonized approach to moderating hate speech?

While the EU Commission has set its sights on much broader online content regulation through the Digital Services Act (DSA), and the ongoing reforms to the eCommerce Directive (eCD), the AudioVisual Media Services Directive (AVMSD) is set to play a role in online hate regulation for content on video-sharing platforms (VSPs). The challenges though are greater than fitting within the DSA agenda and include particular barriers from national content moderation laws across various member-states, together with a fragmented umbrella of pan-European content regulation mechanisms. The convergence in timing of the AVMSD transposition, the draft DSA and the reform of the eCD (and its liability shield) offers a unique opportunity to assess the implications of harmonized content moderation responsibilities for hate speech from 2020 and beyond. This article explores the AVMSD, DSA and eCD as a ‘trend’, before discussing the impact of the reformulated AVMSD on VSPs and their efforts to tackle online hate. It argues that the AVMSD is an underappreciated tool in the increasingly harmonized approach to moderating online hate speech, but also a trigger-point for the new EU trend towards tackling platform power.

Advertising funded video-sharing platforms under the revised AVMSD: Commercial communication functionalities

The 2018 revision of the Audiovisual Media Services Directive (AVMSD) defined video-sharing platforms (VSPs) and brought them into the scope of the Directive, holding them responsible, though not liable, for preventing certain types of harm from both the user-generated content and the commercial communication they carry. The AVMSD introduces the concept of functionality to distinguish a platform as a VSP and bring it into scope. In this article, we present findings from an investigation that applied the concept of functionality more widely and sought to identify and understand those VSP functionalities relevant to commercial communications. We elaborate the creator-facing, advertiser-facing and user-facing functionalities found in a sample of thirteen VSPs by examining company documentation, and systematic testing through use, triangulated through semi-structured key informant interviews. Based on analysis of these commercial communications functionalities and the contractual relationships governing their use, we identify four purchasing pathways, each of which reveals roles played by stakeholders and distinct points of control. We therefore argue that the concept of functionality, which captures the platform design elements and the acceptance of a value proposition by various kinds of users, can be useful in distributing co-operative responsibility within dynamic, polycentric co-regulation and informing systems for enforcing procedural accountability.

Who’s sovereign? The AVMSD’s country of origin principle and video-sharing platforms

This article aims to discuss the impact of the expansion of the country of origin principle to video-sharing digital platforms, and how this contributes to a new paradigm of centralized governance of online media content in Europe. Compared to other jurisdictional regimes in the fields of data protection, intellectual property and personality rights, where other country of receipt and targeting tests are utilized, the case of the Audiovisual Media Services Directive (AVMSD) demonstrates the emergence of a split governance model between individual rights and public interests, which fails to protect adequately local cultural and social specificities in the media sphere.

‘Netflix tax’ from the perspective of national and EU audiovisual policies and what it brings to film funding in small states

This article examines the approaches of two understudied small EU countries to the possibility of imposing film-related levies or production investment obligations on non-domestic video on-demand services. Though they can take various forms, such measures are commonly referred to as ‘Netflix taxes’. Since 2018 they have been legally backed by the EU’s Audiovisual Media Services Directive (AVMSD). By sharing evidence on how these measures have been taken up during the transposition of the AVMSD revisions in Croatia and Slovenia, the article contributes to the emerging body of research into cross-border financial contributions as a film funding tool. This evidence indicates that the potential of ‘Netflix taxes’ to solve the film funding problems in small national markets is limited. It is also argued that no significant contribution to the overall sustainability and diversity of European audiovisual production can be expected if these measures are implemented on a country-per-country basis.