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New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
New Media Services: between the AVMS Directive and the E-Commerce Directive
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New Media Services: between the AVMS Directive and the E-Commerce Directive

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Prof. Dr. Peggy Valcke Professor in Law - KU Leuven Interdisciplinary Centre for Law & ICT - iMinds …

Prof. Dr. Peggy Valcke Professor in Law - KU Leuven Interdisciplinary Centre for Law & ICT - iMinds

CMPF Summer School 2013 for Journalists and Media Practitioners
http://cmpf.eui.eu/training/summer-school-2013.aspx

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  • 1. New Media Services: between the AVMS Directive and the E- Commerce Directive Prof. Dr. Peggy Valcke Professor in Law - KU Leuven Interdisciplinary Centre for Law & ICT - iMinds Centre for Media Pluralism and Media Freedom Summer School for Journalists and Media Practitioners 13 May 2013
  • 2. NEW MEDIA SERVICES Audiovisual content on new platforms Convergence TV & print media
  • 3. Convergence TV & Internet‘TV’ on the Internet Internet on your TV NEW MEDIA SERVICES
  • 4. NEW MEDIA SERVICES Convergence TV & social media…
  • 5. KEY QUESTION Which rules apply to such new media services?
  • 6. OVERVIEW OF RELEVANT LEGAL FRAMEWORKS ICT IPR Privacy Transmission: E-Coms TV content: AVMS Internet services: E- Commerce
  • 7. OVERVIEW OF RELEVANT LEGAL FRAMEWORKS A. Audiovisual Media Services Directive • Linear and non-linear media services directed to the general public • Origin: MEDIA law (radio broadcast, television, ...) - °1989 • http://ec.europa.eu/avpolicy/reg/index_en.htm B. Electronic Communications Directives • Electronic communications networks and services • Origin: TELECOMMUNICATIONS law (telephony, data transport...) -°1988 • http://ec.europa.eu/information_society/policy/ecomm/eu- rules/index_en.htm C. Information Society Services Directive (E-Commerce) • Interactive electronic services • Origin: INTERNET (commercial websites, ...) - °2000 • http://ec.europa.eu/internal_market/e-commerce/directive_en.htm D. Data Protection Legislation (Directive 95/46/EC – under revision) E. Intellectual Property Legislation (Directives on copyright (enforcement), software protection, database protection…)
  • 8. KEY QUESTION Do traditional rules for TV services / providers apply to such new media services? (= Do they fall within scope of AVMS Directive?)
  • 9. Directive 2010/13/EU of 10 March 2010 on the coordina- tion of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (codifies Directive 89/552/EC of 3 October 1989, amended by Directive 97/36/EC of 30 June 1997 and Directive 2007/65/EC of 11 December 2007) = The directive formerly known as “Television without Frontiers” (TVWF) ** !! http://ec.europa.eu/avpolicy/reg/tvwf/index_en.htm !! **  Objectives • Free movement of broadcasting / audiovisual media services within the internal market: HOME COUNTRY CONTROL; • Preservation of certain public interest objectives (incitement to hatred, accessibility for people with disabilities, access to major events, protection of minors, consumer protection); • Promotion of the distribution and production of European audiovisual programmes  Minimum harmonisation! “Traditional rules”: WHERE?
  • 10. “Traditional rules”: WHAT? • Identification of media service provider • Prohibition of incitement to hatred in programmes • Protection of minors: content harmful to minors cannot be included or only under specific conditions • Promotion and distribution of European works • Access to major events on TV; short news reporting • Commercial communications: rules for sponsoring, advertising, product placement… • Accessibility for people with disabilities → monitored and sanctioned by media authorities
  • 11. AVMS Directive: History
  • 12. From TVWF to AVMS: Key Issues Cf. Infra Rationale:
  • 13. From TVWF to AVMS: Key Issues (ctd.) • Graduated regulation: example protection of minors
  • 14. AVMS Directive: Basics “Home country control” e.g. advertising, sponsorship, product placement…
  • 15. AVMS Directive: Scope • DOES AMVSD COVER NEW MEDIA SERVICES? AVMSD covers audiovisual services that comply with the definition in Art. 1(a), irrespective of the platform used to deliver the service (terrestrial, CATV, satellite, IPTV, Internet, tablets, mobile phones…) (and that are transmitted by a media service provider under the jurisdiction of a Member State, read: who is established in a Member State – except for derogations).
  • 16. AVMS Directive: Scope “Audiovisal media service”: 7 cumulative criteria 1. Service as defined by Art. 56-57 TFEU 2. Under editorial responsibility of a media service provider 3. The principle purpose of which is 4. The provision of programmes 5. In order to inform, entertain or educate 6. To the general public 7. Via electronic communications networks
  • 17. AVMS Directive: Scope  Either television broadcast (art. 1(1)(e)): provision of programmes at a scheduled time and watched simultaneously by viewers  or on-demand AVMS (“ODS” or “ODPS”; (art. 1(1)(g)): programmes users select from a catalogue offered by the media service provider, to watch at their own convenience  (+ Audiovisual commercial communication)
  • 18. Scope - Analysis: 1) ‘economic service’ “Audiovisual media service”: 7 cumulative criteria • Service as defined by Art. 56-57 TFEU Economic services (= normally provided for remuneration)
  • 19. Scope - Analysis: 1) ‘economic service’ NOT COVERED User-generated content
  • 20. Scope - Analysis: 1) ‘economic service’ NOT COVERED Non-commercial purpose
  • 21. Scope - Analysis: 1) ‘economic service’ • National implementation/interpretation: – Example (1): IT • Monetary threshold: 100.000 EUR on annual basis – Example (2): NL • Relevant criteria: does it contain ads, sponsoring; does it promote a brand, product or service; is it offered in return for payment – may also include self-promotion, even in case of non-profit organisations.
  • 22. Scope - Analysis: 2) ‘editorial responsibility’ “Audiovisual media service”: 7 cumulative criteria • Under editorial responsibility of a media service provider exercise of effective control over selection of programmes & organisation in chronological schedule (linear) or catalogue (on-demand) = in principle prior control BUT: exclusively prior, or also some form of ‘reactive’ editorial control (i.e. taking down from website programmes not in conformity with provider’s terms of use)?
  • 23. Scope - Analysis: 2) ‘editorial responsibility’ NOT COVERED A posteriori control
  • 24. Scope - Analysis: 2) ‘editorial responsibility’ COVERED – UK (BNPtv: ATVOD Scope Determination, 29.11.2010) • “coherent and distinct editorial proposition” • Does not entirely exclude ‘reactive’ editorial control, but scope for prior editorial oversight is decisive. “contribute”
  • 25. Scope - Analysis: 3) ‘principal purpose’ “Audiovisual media service”: 7 cumulative criteria • The principal purpose of which is
  • 26. Scope - Analysis: 3) ‘principal purpose’ NOT COVERED Video content is only ancillary
  • 27. Scope - Analysis: 3) ‘principal purpose’ NOT COVERED Video content is only ancillary
  • 28. Scope - Analysis: 3) ‘principal purpose’ • National implementation/interpretation: what if video is part of broader consumer offering? – Example (1): NL: • Relevant: organised in catalogue of searchable videos; can be consumed as “stand alone”; marketing strategy; audience perception. • Not relevant: ‘usual suspect’ or not – Example (2): UK (ATVOD Guidance): • AVMS if: programmes grouped together in distinct area and presented as a catalogue of viewing options which could exist as a coherent consumer offering • No AVMS if: programmes included as integral and ancillary element of broader offering, e.g. video used to provide additional material relevant to text-based news story
  • 29. Scope - Analysis: 3) ‘principal purpose’ • Sun TV case (UK)
  • 30. Scope - Analysis: 3) ‘principal purpose’ • Sun TV case (UK)  Publishers argue they are not ODPS because: ─ AVMS recital 28: “should not cover electronic versions of newspapers and magazines” ─ Video library is integral and ancillary parts of the newspaper/magazine web offerings; i.e. ‘principal purpose’ is not provision of video ─ Video library does not offer TV-like material; AV items are more like YouTube (not ‘programmes’ in sense of AVMS)  ATVOD ruled: ─ Single website or domain may contain more than one service; video library is service in its own right ─ Comparable to form and content of programmes normally included in TV ─ Principal purpose of video library is to provide these TV-like programmes  Ofcom overruled ATVOD Determination ─ ATVOD failed to consider the Sun’s website as a whole
  • 31. Scope - Analysis: 3) ‘principal purpose’ • “Principal Purpose”: Sun TV case (UK)
  • 32. Scope - Analysis: 3) ‘principal purpose’ • N.B. Swedish Broadcasting Commission (SBC) decided 29.10.2012 that video sections on newspaper websites were to be considered as audiovisual media services under the Swedish Radio and Television Act (Helsingborgs Dagblad, Aftonbladet, Dagens Nyheter and Norran): – part of the video programmes on the concerned newspapers’ websites was not insignificant compared to other content; – video sections were separate services in relation to the other content on the websites; – programmes were available to the general public where users could choose the time when to watch the programme; – programmes were organized in catalogues such as “Sports” and “News”. => Hence, SBC ruled that the video sections on the newspapers’ websites qualified as on-demand TV and were covered by the Swedish Radio and Television Act.
  • 33. Scope - Analysis: 4) ‘programmes’ “Audiovisual media service”: 7 cumulative criteria • The provision of programmes Moving images with or without sound constituting individual item in a schedule or catalogue
  • 34. Scope - Analysis: 4) ‘programmes’ NOT COVERED Radio
  • 35. Scope - Analysis: 4) ‘programmes’ NOT COVERED Text Cf. recital 28: “The scope of this Directive should not cover electronic versions of newspapers and magazines.”
  • 36. Scope - Analysis: 4) ‘programmes’ “Audiovisual media service”: 7 cumulative criteria • The provision of programmes Moving images with or without sound constituting individual item in a schedule or catalogue Recital 24: to be interpreted in a dynamic way  On-demand AVMS: ‘television-like’ • they compete for the same audience as television broadcasts, • the same means of access as television broadcasts • the user can reasonably expect regulatory protection within the scope of the AVMS Directive
  • 37. Scope - Analysis: 4) ‘programmes’  National implementation/interpretation  Demand Adult and Climax 3 (UK) www.climax3.co.uk/uncut - www.demandadult.co.uk Source: P. DAVIES (OFCOM), “Exploring regulatory boundaries – Defining VOD Services in the UK”, Presentation at EPRA Meeting, 25-27 May 2011, Ohrid
  • 38. Scope - Analysis: 4) ‘programmes’  Demand Adult and Climax 3 (UK)  Playboy argued: ─ VOD services consisted of explicit works of sexual material prohibited on linear TV services ─ Hence: no ODPS because content not ‘normally included in TV programme services’  ATVOD disagreed because (24.09.2010): ─ Law requires content of ODPS to be ‘comparable’, not ‘identical’, to TV programmes ─ Content comparable to ‘soft’ pornography which can be broadcast on UK linear channels with restrictions  Ofcom upheld ATVOD Determination (13.05.2011)  Ofcom imposed fine of 100,000£ for failing to provide effective systems to protect children (16.1.2013)
  • 39. Scope - Analysis: 4) ‘programmes’ • National implementation/interpretation • Top Gear YouTube (UK)
  • 40. Scope - Analysis: 4) ‘programmes’ • “TV-like character”: Top Gear YouTube (UK)  BBC argues it is not ODPS because not ‘TV-like’: ─ Only short clips, not comparable to programmes normally included in television programme services (duration = key characteristic) ─ Clips often viewed on the move or during quick breaks in the working day (<-> TV programmes viewed at home, in comfort on the sofa - longer duration). ─ YouTube channel is not in competition with television for viewers (unlike services such as 4OD and Demand Five which include full length programming).  ATVOD ruled (03.05.2011): ─ Short programming may form only small part of TV schedule (as does longer programming eg. over two hours) but is nonetheless ‘normally included’ (nearly 1 in every 30 programmes on 5 main channels). ─ Looking at particular form & content of programmes on Top Gear YouTube, these resemble linear TV programmes.  Ofcom overruled (18.01.2013) • “form and content of audiovisual material on the Service, provision of which is its principal purpose, is not comparable to the form and content of linear TV”
  • 41. Scope - Analysis: 4) ‘programmes’ • “TV like”: BBC Top Gear You Tube (UK) (cf. BBC Food You Tube case)
  • 42. Scope - Analysis: 4) ‘programmes’
  • 43. Scope - Analysis: 5) ‘inform, entertain or educate’ “Audiovisual media service”: 7 cumulative criteria • In order to inform, entertain or educate Impact on the way people form their opinions NOT COVERED Webcams (merely registering)
  • 44. Scope - Analysis: 6) ‘general public’ “Audiovisual media service”: 7 cumulative criteria • To the general public  Mass media character NOT COVERED Narrowcasting
  • 45. Scope - Analysis: 6) ‘general public’ NOT COVERED Private correspondance
  • 46. Scope - Analysis: 6) ‘general public’ • National implementation/interpretation – Example (1): NL • Mass media = receivable with standard consumer equipment… • …even if in practice only used by very few people. • BUT: media with very small audience and provided by non- commercial institutions (churches, town halls, hospitals) should be excluded (usually no economic activity). – Example (2): DE (Interstate Treaty) • NOT: if service cannot be simultaneously used by +500 persons. – Example (3): IT • Linear services: excluded if provided on the Internet (WebTV, IPTV, mobile TV) with a schedule of less than 24 weekly hours and services not intended for the wide public, such as company TV services, and cable TV services in restricted areas, such as railway stations, airports, etc.
  • 47. Scope - Analysis: 7) ‘electronic communications networks’ “Audiovisual media service”: 7 cumulative criteria • By electronic communications networks Technology-neutral approach • Terrestrial • Satellite • Cable • ADSL • Mobile • Etc
  • 48. Scope - Analysis: 7) ‘electronic communications networks’ NOT COVERED Video shop
  • 49. Scope - Analysis: 7) ‘electronic communications networks’ NOT COVERED Cinema
  • 50. Scope - Analysis: 7) ‘electronic communications networks’ NOT COVERED DVD (in the past)
  • 51. Scope: Major Borderline Cases • Services on UGC platforms – Distinction between content created by users & professional content offered on UGC platforms. • AV services offered by electronic/online versions of newspapers or magazines (blurring boundaries AVMS – newspapers) – Sports newspapers online versus sports channels websites − Newspapers online versus all news portals/news channels websites − Fashion magazines online versus fashion videos online − Cooking magazines online versus cooking videos online − Aggregator sites
  • 52.  E-Commerce Directive 2000/31/EC : “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services” • Harmonises rules on: – jurisdiction (establishment of service providers) – commercial communications – electronic contracts – liability of intermediaries (mere conduit, caching, hosting) – codes of conduct – out-of-court dispute settlements, court actions and cooperation between Member States – BUT: no “media content regulation” (N.B. general laws at Member State level - e.g. rules on obscenity, defamation, anti-discrimination and hate speech rules… - may still apply) What if services do not fall under AVMS Directive?
  • 53. • Certain on-demand AVMS also qualify as “information society services” in the sense of the “E-Commerce Directive”. • See Art. 4(8), Rec. 17 & 25 AVMSD (“lex specialis”). What if services fall under both directives?
  • 54. Concluding remarks • “The identification criteria that were easy to apply in the traditional media world are now facing a moment of crisis” (R. Viola & M. Cappello, AGCOM, IRIS Special, p.51) • “Media Regulation 2020”: which services? ☼ Technology-neutrality – …or user perception? (‘regulation in context’; cf. M. Ariño) ☼ Mediatypes (TV, internet, newspapers, magazines, radio…) – …or functions? (information, entertainment, education…) ☼ Editorial responsibility: – …from selection to search & navigation? – …from ex ante to ex post? • EC launched public consultation: Green Paper ‘Preparing for a Fully Converged Audiovisual World’ (24 April 2013); http://ec.europa.eu/digital-agenda/en/connectedTV
  • 55. References & Reading • Website of the European Commission on the AVMS Directive : http://ec.europa.eu/avpolicy/reg/tvwf/index_en.htm (European Commission First Report on the application of Directive 2010/13/EU “AVMS Directive”, May 2012, COM(2012) 203 final) • National Transpositions of AVMS Directive - Project of Prof. Mark Cole, Université de Luxembourg: http://wwwen.uni.lu/research/fdef/media_law/audiovisual_media_services_directive/ project_description • Website of the European Platform of Regulatory Authorities: http://www.epra.org/content/english/index2.html • IRIS special, The Regulation of On-demand Audiovisual Services: Chaos or Coherence?, Council of Europe/European Audiovisual Observatory, 2011, 100 p. • Emmanuelle Machet, “Content Regulation and new Media: Exploring Regulatory Boundaries between Traditional and new Media”, Background document Plenary session 33rd EPRA meeting, Ohrid, 26-27 May 2011, http://www.epra.org/content/english/press/papers/Ohrid/paper_session1_final_revis ed.pdf.
  • 56. References & Reading (ctd.) • R. Craufurd Smith, “Determining Regulatory Competence for Audiovisual Media Services in the European Union”, Journal of Media Law (2011) 3(2) 263-285 • M. Ariño, “Content Regulation and New Media: A Case Study of Online Video Portals”, Communications & Strategies (2007), n° 66, 115-135 • Ofcom, Protecting audiences in the era of convergence and Connected TV: Ofcom Research, Deliberative Research Report (+ Appendices), 25 Jan. 2012, http://stakeholders.ofcom.org.uk/market-data-research/tv-research/protecting- audiences/?utm_source=updates&utm_medium=email&utm_campaign=protecting- audiences • Commissariaat voor de Media, Policy guidelines for commercial on-demand media services 2011 - Beleidsregels classificatie commerciële mediadiensten op aanvraag 2011, http://www.cvdm.nl/content.jsp?objectid=CVDM:12335 (English version in preparation) • AGCOM, Web-radio and Web-TV: F.A.Q., http://www.agcom.it/default.aspx?message=contenuto&DCId=495 • P. VALCKE, K. LEFEVER & J. AUSLOOS (2013). “Audiovisual Media Services 3.0: (Re)Defining the Scope of European Broadcasting Law in a Converging and Connected Media Environment.” In: K. DONDERS, C. PAUWELS & J. LOISEN, Handbook on European Media Policy, Palgrave (forthcoming)
  • 57. Thank you for your attention Peggy Valcke [peggy.valcke@law.kuleuven.be] http://www.law.kuleuven.be/icri – http://www.iminds.be http://www.law.kuleuven.be/icri/psiml/

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