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

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

NEW MEDIA SERVICES
Audiovisual content
on new platforms
Convergence TV
& print media

Convergence TV & Internet‘TV’ on the Internet Internet on your TV
NEW MEDIA SERVICES

NEW MEDIA SERVICES
Convergence TV & social media…

KEY QUESTION
Which rules apply to such
new media services?

OVERVIEW OF RELEVANT LEGAL
FRAMEWORKS
ICT
IPR Privacy
Transmission:
E-Coms
TV content:
AVMS
Internet
services: E-
Commerce

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…)

KEY QUESTION
Do traditional rules for TV
services / providers apply to
such new media services?
(= Do they fall within scope of
AVMS Directive?)

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?

“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

From TVWF to AVMS: Key Issues
Cf. Infra
Rationale:

From TVWF to AVMS: Key Issues (ctd.)
• Graduated regulation: example protection of minors

AVMS Directive: Basics
“Home country control”
e.g. advertising, sponsorship, product placement…

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).

“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

 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)

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)

NOT COVERED
User-generated content

NOT COVERED
Non-commercial purpose

• 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.

Scope - Analysis: 2) ‘editorial responsibility’
• 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)?

NOT COVERED
A posteriori control

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”

Scope - Analysis: 3) ‘principal purpose’
• The principal purpose of which is

NOT COVERED
Video content is only ancillary

• 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

• Sun TV case (UK)

• 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

• “Principal Purpose”: Sun TV case (UK)

• 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.

Scope - Analysis: 4) ‘programmes’
• The provision of programmes
Moving images with or without sound constituting
individual item in a schedule or catalogue

NOT COVERED
Radio

NOT COVERED
Text
Cf. recital 28: “The scope of this Directive should not cover
electronic versions of newspapers and magazines.”

• 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

 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

 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)

• National implementation/interpretation
• Top Gear YouTube (UK)

• “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”

• “TV like”: BBC Top Gear You Tube (UK)
(cf. BBC Food You Tube case)

Scope - Analysis: 5) ‘inform, entertain or
educate’
• In order to inform, entertain or educate
Impact on the way people form their opinions
NOT COVERED
Webcams (merely registering)

Scope - Analysis: 6) ‘general public’
• To the general public
 Mass media character
NOT COVERED
Narrowcasting

NOT COVERED
Private correspondance

• 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.

Scope - Analysis: 7) ‘electronic
communications networks’
• By electronic communications networks
Technology-neutral approach
• Terrestrial
• Satellite
• Cable
• ADSL
• Mobile
• Etc

NOT COVERED
Video shop

NOT COVERED
Cinema

NOT COVERED
DVD (in the past)

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

 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?

• 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?

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

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.

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)

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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