This report examines the implementation of the Audiovisual Media Services Directive (hereinafter ‘the Directive’) since its 2018 revision. The deadline for transposing the revised Directive into national legislation expired on 19 September 2020. Pursuant to Article 33, second sentence of the Directive, the Commission must submit a report on the application of the Directive to the European Parliament by ‘19 December 2022 at the latest’.
The 2018 revision focused above all on the ongoing convergence of the media and changing habits in the consumption of audiovisual media services. While the distinction between linear and non-linear services was maintained, the scope of the Directive was extended to include video-sharing platform services.
In addition, a number of important changes were made in the following areas:
– Extension of the definition of programme to include short videos;
– Inclusion of social media within the scope;
– Clarification of the country of origin principle and recasting of procedures in case of circumvention of the principle or in case of conflict;
– Strengthening co- and self-regulation;
– Enhancing the accessibility of audiovisual services;
– Findability and signal integrity rules;
– Inclusion of European quotas for on-demand audiovisual media services;
– More flexible rules regarding advertising time;
– More specific requirements regarding the independence of, and the avoidance of state control over or influence on, national regulatory authorities or bodies;
– Integration of the European Regulators Group for Audiovisual Media Services (ERGA);
– Promotion of media literacy skills.
On 7 July 2020, the Commission published ‘Guidelines on the practical application of the essential functionality criterion of the definition a ‘video-sharing platform service’ under the Audiovisual Media Services Directive’ and ‘Guidelines pursuant to Article 13(7) of the Audiovisual Media Services Directive on the calculation of the share of European works in on-demand catalogues and on the definition of low audience and low turnover’. In accordance with Article 33a(3), the Commission must, after consulting the Contact Committee, also issue guidelines regarding the scope of the reports on the implementation of measures to develop media literacy, which the Member States are to submit to the Commission for the first time by 19 December 2022 at the latest.
Moreover, on 3 December 2020, in a Memorandum of Understanding, the national regulatory authorities agreed on common rules regarding the steps to be taken in the event of cross-border infringements in audiovisual media services and video-sharing platforms.
In order to prepare this implementation report, the rapporteur sent a questionnaire to various stakeholders on 23 June 2022, to which more than 60 stakeholders responded on the issues of relevance to them. Stakeholders were also invited to an exchange of views on 12 October 2022, with 15 stakeholders being given the opportunity to make substantive contributions. Finally, the CULT Committee held a public hearing on the implementation of the Directive on 25 October 2022.
2. Scope and state of implementation of the Directive
The regulatory objective of the Directive is to create as coherent a legal framework as possible for content requirements for linear and non-linear audiovisual media services and to hold platform operators accountable in this regard. The inclusion both of new types of content, such as short video clips or user-generated content, for which video-sharing platform providers do not have editorial responsibility, and of new providers, was explicitly desired.
In essence, the Directive's requirements should cover anyone in whose offer the presentation of audiovisual content is an important feature. In making this assessment, the co-legislators may have taken greater account of the end-user perspective than the Commission, whose guidelines approached the question of essentialness in a very quantitative manner. The question of whether an end-user can reasonably, objectively, assume that the provisions of the Directive apply, for example, to the social media service being used by the end-user is rather relegated to the background in the Guidelines, although admittedly aspects of monetisation and functionalities provided exclusively for audiovisual content are also likely to play a role in the assessment by end-users. The general intention was to effectively extend the scope of protection against illegal and harmful content and the regulated advertising environment to new online services without creating disadvantages for Union providers directly competing with global platform providers.
While in November 2020, 23 Member States had yet to make significant progress in transposing the Directive into national law, by mid-May 2022, this figure had fallen to five. The least progress was registered in the Member State chosen by most platform operators from third countries as their base in the EU, i.e. Ireland. Since legal action has been pending, it would appear that in this case also the process of transposition is now underway. Since the most popular third-country platforms, often large ones, do not yet fall within the scope of the Directive as a result of the failure to transpose it, it is difficult to draw comprehensive conclusions at the time of drafting the report as to whether the protection of minors from harmful content, the protection of the general public against illegal content, and the extension of certain advertising rules to video-sharing platform services are fully effective there.
3. Challenges in upholding the country of origin principle
Originally, Article 2(4) of the Directive was intended to provide legal certainty by means of an enforcement tool against third-country providers which, owing to their not being established in the Union, related to the satellite uplink provider or the satellite operator of the satellite on which a transponder was used. However, the provision now unintentionally works in favour of third country providers, since satellite capacities are now straightforwardly and quickly available and uplinks are easily accessible and interchangeable, so that the latter can be redistributed relatively straightforwardly and quickly (immediately) without restriction, while the question of legal attribution to the jurisdiction of a Member State continues to be contentious.
The effectiveness of and trust in the procedures set out in Articles 3 and 4 of the Directive depends decisively on their swift and efficient implementation. However, the most recent instances in which such procedures have been applied would seem to indicate that they may be too lengthy in relation to the respective danger to be averted.
4. Accessibility and findability
With the 2018 revision, the issue of accessibility of audiovisual offers gained in importance and more targeted measures in this regard are being pursued. However, it will only be possible to ascertain the extent to which there has been an increase in accessible services on offer once Member States have submitted their reports to the Commission. That said, it is quite clear already that there are very different levels of implementation across Member States, both in terms of quality and quantity of accessible offers.
Although the role of platforms, intermediaries or terminal equipment in accessing audiovisual media services continues to grow, only a few Member States have so far made use of the potential opportunities offered by the rules on findability.
5. Quotas for on-demand audiovisual media services
By 1 January 2022, 17 Member States had set the target quota pursuant to Article 13(1) at 30 % in their national legislation. Only two Member States opted for significantly higher national or regional quotas. Since the last revision, global competition for talent has intensified, with cash-rich, globally refinancing providers of or platforms for on-demand video increasingly signing up talent as soon as possible. In addition, production costs in the Union have increased significantly, inter alia owing to higher investment demand.
In the Commission's guidelines for calculating the share of European works in on-demand catalogues, a series season counts as a single European work in quantitative terms. However, the total lengths of seasons counted in this manner differ considerably.
6. Co- and self-regulation and media oversight
The 2022 Strengthened Code of Practice on Disinformation in particular is tied to the possibilities for co- and self-regulation at Union level. The regulation of the use of artificial intelligence in the production and distribution of audiovisual content has been identified as a potential future area for co- and self-regulation, especially as some media regulators are considering the use of artificial intelligence to detect illegal content.
Media regulators and other stakeholders have repeatedly pointed out that it is crucial to better equip national regulators in terms of staffing and financial resources so that they can properly fulfil their role in the context of cross-border cooperation and ERGA, while enabling them to perform their increasingly complex tasks in a competent and timely manner. The following were identified as areas for enhanced cooperation between media regulators:
– determining whether a cross-border case exists where the application of the criteria of Article 2 of the Directive is contested by a party,
– the assessment and resolution of conflicts of territorial jurisdiction;
– the assessment of possible breaches of independence.
Almost all media providers today also disseminate their content via online platforms to reach target groups that are important to them, especially younger audiences. Only in rare, exceptional cases are such platforms owned by a company from the European Union, and the platform services are often not subject to the obligation of pluralism of opinion. Platforms often feature the relatively strictly regulated and controlled online offers of Union media service providers directly alongside uncontrolled and unregulated offers that are not subject to the Directive. This inequality, to the detriment of Union providers, should be eliminated by further developing the Directive so as to render global platform operators accountable to a greater extent.
on the implementation of the revised Audiovisual Media Services Directive (2022/2038(INI))
The European Parliament ,
– having regard to the competences of the Member States on developing ambitious cultural policies in the audiovisual field, in line with Article 3 of the Treaty on European Union and Articles 6 and 167 of the Treaty on the Functioning of the European Union (TFEU),
– having regard to Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) [1] ,
– having regard to Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (‘Audiovisual Media Services Directive’) in view of changing market realities [2] ,
– having regard to the Commission communication of 7 July 2020 entitled ‘Guidelines on the practical application of the essential functionality criterion of the definition of a ‘video-sharing platform service’ under the Audiovisual Media Services Directive’ [3] ,
– having regard to the Commission communication of 7 July 2020 entitled ‘Guidelines pursuant to Article 13(7) of the Audiovisual Media Services Directive on the calculation of the share of European works in on-demand catalogues and on the definition of low audience and low turnover’ [4] ,
– having regard to the European Charter for Regional or Minority Languages, in particular its provisions regarding the media,
– having regard to the Council conclusions of 4 April 2022 on building a European Strategy for the Cultural and Creative Industries Ecosystem [5] ,
– having regard to the Memorandum of Understanding between the National Regulatory Authority Members of the European Regulators Group for Audiovisual Media Services (ERGA) of 3 December 2020,
– having regard to the 2022 Strengthened Code of Practice on Disinformation,
– having regard to the Commission communication of 3 December 2020 entitled ‘Europe’s Media in the Digital Decade: An Action Plan to Support Recovery and Transformation’ (COM(2020)0784);
– having regard to the study of the Policy Department for Structural and Cohesion Policies of its Directorate-General for Internal Policies of November 2022 entitled ‘Implementation of the revised Audiovisual Media Services Directive – Background Analysis of the main aspects of the 2018 AVMSD revision’,
– having regard to Rule 54 of its Rules of Procedure, as well as Article 1(1)(e) of and Annex 3 to the decision of the Conference of Presidents of 12 December 2002 on the procedure for granting authorisation to draw up own-initiative reports,
– having regard to the opinion of the Committee on the Internal Market and Consumer Protection,
– having regard to the report of the Committee on Culture and Education (A9-0139/2023),
A. whereas the Audiovisual Media Services Directive (AVMSD) should play a key role in structuring the European audiovisual ecosystem, guided by the principles of protecting cultural and linguistic diversity and pluralism of opinion and promoting the distribution and production of European audiovisual media services in the European Union;
B. whereas the latest revision of the AVMSD, adopted on 28 November 2018, provided a framework for strengthening the ‘country of origin’ principle and improving consumer protection, in particular for minors and persons with disabilities, in the online world;
C. whereas the country of origin principle is enshrined in EU law, specifically in Article 2(1) of the AVMSD, and has successfully proved itself to be an important pillar for the free and unhindered dissemination of information and for the cross-border provision of audiovisual media services by providing legal certainty; whereas it constitutes an important basis for protecting audiovisual media service providers and enables investments in innovative and creative productions and improvements in the discoverability of European audiovisual works;
D. whereas the role of the revised AVMSD is to support and benefit European cultural creation and cultural diversity in a changing audiovisual sector in line with other rules, such as the copyright provision of Directive (EU) 2019/790 [6] , which asks for fair remuneration for right holders;
E. whereas creating an area without internal borders for audiovisual media services that also affords a high level of protection to objectives of general interest cannot be sufficiently achieved by the Member States alone and can therefore be better achieved at Union level;
F. whereas new horizontal legal provisions at Union level make it necessary to clarify their interconnections under the specific legal framework for audiovisual media service providers in a consistent and coherent manner;
G. whereas the potential for conflict and thus the need for consistency and coherence has increased significantly in recent times due to enacted or proposed legislation at EU level in the ‘digital decade’, namely, the Digital Services Act [7] , which addresses players in the distribution and value chain of audiovisual content and has direct links with the AVMSD; whereas more evident links exist in the proposals for a European media freedom act and for a regulation on political advertising, which address issues directly relevant for the audiovisual media sector;
H. whereas information about the ownership of media service providers and video-sharing platform providers should be easily, comprehensively and publicly available, as this is of key importance in limiting further media concentration;
I.. whereas providing positive encouragement and promoting professional EU audiovisual media services can make an important contribution to the global fight against disinformation and fake news; whereas this contributes to the effective implementation of the right to information and to the promotion of public discourse based on a multitude of opinions;
J. whereas a large number of online platforms do not provide access to audience data for works distributed by media service providers; whereas however, this data is indispensable to adjust policies and to support content creation;
K. whereas independent and impartial national and regional media regulatory authorities are a precondition for media freedom and pluralism, as they protect the media from undue political and commercial interference by safeguarding independent, accountable and transparently operating media services;
L. whereas under the revised AVMSD, ERGA brings together representatives of national independent regulatory bodies in the field of audiovisual media services to advise the Commission on the consistent implementation of the AVMSD and to exchange best practices;
M. whereas in more than half of the EU Member States, the appointment procedures for heads of media regulatory authorities risk not being effective enough in limiting the risk of political and/or economic influence [8] ;
N. whereas a large number of enterprises active in the EU audiovisual media are also small and medium-sized enterprises, which require special safeguards in order to offer a diverse range of services to a European audience;
O. whereas in light of the omnipresence of digital media services and of the proliferation of information sources on the internet, the acquisition of media literacy by children and adolescents, as well as by adults, is an indispensable basic skill, which, in addition to functional understanding, must include the ability for critical (self-)reflection regarding media usage patterns;
P. whereas the UN Convention on the Rights of Persons with Disabilities legally requires the EU and all its Member States to ensure the right to accessibility (Article 9 thereof), freedom of expression, opinion, and access to information (Article 21 thereof) and participation in cultural life (Article 30 thereof);
Q. whereas the Member States’ significantly delayed transposition of the AVMSD undermines its effectiveness;
1. Is critical both of the insufficient will on the part of some Member States to transpose the AVMSD in a timely manner and of the Commission’s overall reluctance to initiate infringement procedures and its late publication of guidelines; encourages the Member States to implement the AVMSD without further delay;
2. Is concerned that a full-scale evaluation is not entirely possible at present, because of the transposition delay;
3. Recalls the Commission’s obligation, as laid down in the second sentence of Article 33 of the AVMSD, to submit a report on the application of the AVMSD no later than 19 December 2022, and reminds the Member States’ of their obligation under Article 7(2) of the AVMSD to report to the Commission on progress regarding accessibility by the same date; recalls, in addition, the Commission’s obligation to report on the application of Article 13(1) and (2) of the AVMSD on the basis of the information provided by the Member States by 19 December 2021 and of an independent study, taking into account the market and technological developments and the objective of cultural diversity; regrets that the report on the application of the AVMSD for the 2014-2019 period has not been widely disseminated; notes that this report provides important information for the purposes of benchmarking the implementation of the revised AVMSD;
4. Recognisesthe definition of ‘European works’ as an open and broad understanding of the concept of ‘European audiovisual works’, as laid down in the Council of Europe’s European Convention on Transfrontier Television of 5 May 1989; recalls that the definition of European works in the AVMSD is without prejudice to the possibility of Member States laying down a more detailed definition as regards media service providers under their jurisdiction; affirms that the definition of European works should, among other things, serve the promotion of works produced in the EU to the benefit of the European creative ecosystem; recalls, in this regard, that according to the media and audiovisual action plan, the Commission plans to publish a European media outlook to study the major media trends and analyse their potential impact on media markets and business models; regrets that this report could not be published in due time; asks the Commission to evaluate the definition of European works exclusively on the basis of scientific findings obtained in cooperation with ERGA and the European Audiovisual Observatory and taking the European media outlook data directly related to the current application of the term ‘European works’ duly into account;
5. Calls on the Commission to promptly take the necessary measures to address the shortcomings and prevent any abuse of rights in the application of Article 2(4) of the AVMSD;
6. Considers that any derogation related to the country of origin principle and the introduction of any new barriers and restrictions to the freedom to provide services, as established under Articles 56-62 TFEU, need to be assessed against proportionality, flexibility, predictability and non-discrimination safeguards ;
7. Calls on the Commission to review the procedures laid down in Articles 3 and 4 of the AVMSD to see whether they can be applied more quickly and effectively so as to strengthen the country of origin principle while respecting the rights of all parties concerned;
8. Notes that the different levels of regulatory strength that exist for audiovisual media services in different environments are still causing an uneven level playing field pending on the play-out via TV broadcast, on a video-sharing platform service or other online platform services; is at the same time aware that one of the reasons is that legislation is linked to whether or not the provider has editorial responsibility for the service; encourages greater efforts to seek a high level of consumer protection, protection from harmful content or protection of minors across all media types or play-out channels within the framework of the possibilities provided by the AVMSD;
9. Stresses that the scope of the AVMSD has been expanded to impose certain obligations on video-sharing platform providers under Article 28b, such as the requirement to take appropriate measures to protect minors from harmful content and all users from content containing an incitement to violence or hatred; highlights the need to ensure the proper implementation of these provisions;
10. Recalls that, according to the 2020 Commission communication on guidelines on the practical application of the essential functionality criterion of the definition of a ‘video-sharing platform service’ under the AVMSD, video-sharing platform services provide audiovisual content that is being increasingly accessed by the general public, and this is also true of social media services, which have become an important medium for sharing information; further recalls that, according to these guidelines, certain social media services could fall within the scope of the application of the new rules on video-sharing platforms if they meet certain criteria;
11. Recalls the key provisions of the AVMSD on protecting minors, in particular the prohibition on processing minors’ data for commercial communications; considers that cross-border cooperation measures, in particular for the protection of minors, need to be strengthened by enhancing the capacity of national media regulatory authorities and other competent authorities to deal effectively with identified infringements, thus ensuring rapid and effective action, while also encouraging coordination between public and private stakeholders on preventive actions; points out once again the possibilities offered by Article 4a of the AVMSD and reiterates that codes of conduct can have an important role in this regard, taking into account the fast evolution of marketing techniques;
12. Calls on the Member States to ensure, in transposing the AVMSD, that it is clear and easy to understand, in particular for end users, whether the protection of minors from harmful content, the protection of the general public against certain illegal content and the content-related advertising restrictions of the AVMSD apply in the medium currently being used, especially online;
13. Considers that horizontal legislation applicable to audiovisual media services, such as the Digital Services Act or horizontal co- and self-regulation standards, such as the 2022 Strengthened Code of Practice on Disinformation, should always be interpreted in a manner that is consistent with the objectives of the AVMSD; stresses the need to minimise the regulatory disparities that exist between audiovisual offerings from different providers, by strengthening the legal consistency between sectoral legislation and horizontal legislation; considers that this would provide legal certainty on various European laws through a clear interpretation that would allow the sectoral law to prevail and that would remain consistent with the objectives and values of the AVMSD, such as independent supervision and the protection of editorial content, respect for human dignity, the protection of minors, public security and safety, and pluralistic and well-functioning democratic discourse, thereby leading to the implementation of high standards;
14. Stresses the usefulness of the MAVISE database [9] , managed by the European Audiovisual Observatory, which provides information on audiovisual media services, video-sharing platforms and their jurisdictions in Europe; calls for further efforts to expand the database’s reach and facilitate its use by all interested users; calls for Article 5(2) of the AVMSD to be formulated as a Member State obligation in any future revision of the AVMSD;
15. Calls on the Commission, on the basis of the Member States’ reports, in cooperation with ERGA and in dialogue with relevant organisations from civil society, to work on common qualitative and quantitative targets to promote the further development of accessible services for persons with disabilities in line with the accessibility requirements set out in the European Accessibility Act [10] for products and services and to improve the accessibility of services overall; believes that such ambitious targets with clear implementation deadlines based the actual accessibility situation in each Member State and taking into consideration the latest technical developments should contain a percentage of accessible audiovisual content related to specific types of access services; emphasises that any reporting on improvements in accessible services must be publicly available and that, when assessing the Member States’ implementation of their obligations under the AVMSD, the Commission should verify that their understandings of ‘proportionate measures’ are not voiding Article 7 thereof;
16. Stresses the importance of facilitating accessibility (dubbing, subtitles, audio descriptions or others) in all languages of the territory where the audiovisual media service is provided; recalls that it is fundamental to designate an easily accessible and publicly available online point of contact in every Member State without undue delay;
17. Requests greater efforts to disseminate European works representing the full range of European linguistic diversity, taking into account both official languages and regional and minority languages; finds it therefore indispensable to collect data on the linguistic dissemination of audiovisual media services, including information on the linguistic diversity of related dubbing, subtitling or audio descriptions made available alongside them, so as to be able to act in a more targeted manner;
18. Notes the potential of using artificial intelligence to increase the accessibility of audiovisual services and calls on the Commission and the Member States to promote this in a strategic and targeted manner;
19. Calls on the Commission to request European standards for access services, including icons, that respect existing practices, but that can also be used by countries lacking quality guidance;
20. Recommends that the future AccessibleEU centre create a forum for all stakeholders affected by the European Accessibility Act and the AVMSD to enable the exchange of practices and find areas of cooperation to improve media accessibility in the EU;
21. Calls on the Commission to carry out a study to measure and benchmark media accessibility between Member States;
22. Notes that the co-legislators have introduced important new items into the revised AVMSD, notably a provision recognising the Member States’ ability to adopt measures promoting the prominence of audiovisual media services of general interest (Article 7a) and a provision protecting the integrity of audiovisual media services (Article 7b); highlights the need to ensure proper implementation of these provisions, considering the key role that device manufacturers and user interface providers play in enabling people to access, discover and find audiovisual media services online;
23. Considers, in addition, that the measures in Article 7a could be further strengthened and encourages the Member States to better use and exploit the opportunities that can arise from the appropriate promotion of audiovisual media services of general interest; suggests, furthermore, that ERGA help to develop guidelines for a harmonised European approach in this regard, based on an analysis of best practices; believes that progress could be made towards an obligation of prominence for audiovisual media services of general interest, under the condition that the scope and understanding of the general interest content be harmonised and not go against EU values, taking due account of existing systems in this regard and their further development;
24. Points out, in this regard, that services or content of general interest are deliberately not limited to public service media, but also include services or content provided by commercial media service providers aimed at meeting social, democratic and cultural needs, as they may represent a greater range of views on the political spectrum;
25. Encourages the Member States to adopt comprehensive and effective rules in accordance with Article 7b of the AVMSD to protect signal integrity on all relevant online platforms and interfaces used to access audiovisual media services;
26. Underlines the importance of numeric buttons on remotes in ensuring the visibility and findability of audiovisual media services of general interest; notes that some manufacturers have removed these buttons from their remotes, putting at stake traditional channel numbering systems;
27. Considers that the objectives of the AVMSD are served by Member States taking measures to ensure the prominence of audiovisual media services of general interest, as well as the prominence of European works, vis-à-vis relevant user interfaces and platform services that offer their services to users in the territory of that Member State but are not themselves established there; recalls that it is important for these measures to be based on transparent and objective criteria; stresses that the Member States are free to include other types of media, such as radio, online audio or the press, when transposing the AVMSD into national law;
28. Considers that there is a need to address the use of artificial intelligence in relation to audiovisual media services in order to safeguard and advance freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas;
29. Considers it appropriate to maintain the European quota requirements as minimum targets at their current level as long as evidence does not recommend otherwise; emphasises the importance of the provisions on promoting and distributing European works, along with discoverability tools provided by ERGA to the Member States and their direct impact on local audiovisual creation and business ecosystems; calls on the Commission and ERGA to promote the exchange of best practices among Member States on deploying such discoverability tools in order to, in the long term, present proposals for specific measures to be applied by all Member States; reminds the Member States that they can go beyond the EU quota requirements at national level;
30. Highlights that the introduction of EU quota requirements was intended to promote the European creative ecosystem by increasing the exposure of EU audiences to European works and by offering more opportunities for European creations to reach viewers across the EU; considers it necessary to ensure regular monitoring of the implementation of the EU quota requirements, including the types of audiovisual works covered and volume calculations for the on-demand services quota;
31. Highlights that the most recent revision of the AVMSD introduced a derogation mechanism for the country of origin principle, in particular under Article 13(2) thereof, intended to establish a better balance of rules applying to the various players providing the same service, while ensuring cultural diversity and fair competition between all players targeting a national market and maintaining a steady and diverse European creative ecosystem in these countries; notes the use of the mechanism by 14 Member States, for example, to contribute to national funds and to direct investments;
32. Emphasises the lack of comparative data and notes that certain market players have stated that the provision will be fundamental to the objectives of promoting and diversifying the European audiovisual sector and will stimulate cultural diversity, while, at the same time, other market players have stated that those derogations will lead to undesirable effects for the single market or could create additional costs;
33. Highlights that this evaluation should comprehensively cover the promotion of European works in a disparate European media landscape that includes small and large, and regional, European and non-European providers in a section on current cultural, technical and commercially relevant developments and should present proposals for specific measures to solve identified problems;
34. Notes that, while the calculation of quotas for television broadcasters in Article 16 of the AVMSD excludes news, sports events, games, advertising, teletext services and tele-shopping, an exclusion does not exist for audiovisual on-demand services; calls on the Commission to assess the types of programmes offered by audiovisual on-demand services that are comptabilised in the share of European works present in catalogues and made available prominently aiming to ensure that the focus of the quota achieves similar objectives as Article 16;
35. Encourages, furthermore, a comprehensive study to assess the possibility, added-value and impact on the European creative ecosystem of common EU-wide minimum requirements for investment incentive schemes, as a way to complement the financial obligations provisions in the AVMSD, taking best practices in the EU and worldwide into account and including a focus on the integration of social or cultural effects that are desirable in terms of media policy, such as talent development, social obligations, inclusion, diversity, gender equality and greening;
36. Considers that equating a season of a series with one title, as set out in the guidelines pursuant to Article 13(7) of the AVMSD on the calculation of the share of European works in on-demand catalogues, should be assessed in due time, taking into consideration the effect of doing so on cinematographic works and TV series and the objective of providing European audiences with varied cultural offer; believes that, in addition, the terms ‘low turnover’ and ‘low audience providers’ should be assessed to see whether they are sufficiently clear and allow for their application to be harmonised to a sufficient extent;
37. Understands that, as regards the broadcasting of events of major importance and the general public’s ability to watch them, some Member States, in their implementation of Article 14 of the AVMSD, have adopted disproportionate rules on the volume of events covered, negotiations with qualified bidders, qualifying criteria and their overall fitness for the current competitive landscape, for example vis-à-vis the online availability of events; calls on the Commission to closely monitor the implementation of the rules to ensure that events of major importance remain accessible to as many people as possible in free-to-air TV broadcasts;
38. Points out that data collection related to the available audiovisual media services on online platforms gives these platforms a competitive advantage;
39. Welcomes the fact that the gatekeepers under the Digital Markets Act [11] have to share some of the data they generate and that gatekeepers are prohibited from favouring their own content over that of third parties; believes that this may not be sufficient to ensure fair competition and a diverse audiovisual media landscape; calls on the Commission to assess appropriate measures to avoid these market imbalances to ensure that audiovisual media service providers are able to access all data relating to the use of their services;
40. Emphasises furthermore that the necessary data must, at the very least, be accessible to the respective national regulatory authorities or bodies, so that they can determine whether the proper prominence of audiovisual media services of general interest or the prominence of European works in catalogues of on-demand audiovisual media services has been achieved;
41. Calls for the potential of co- and self-regulation to be fully used and for their respective impacts on audiovisual media service providers to be evaluated regularly in order to provide the best possible quality and impact;
42. Calls on the Commission to further investigate the fast-growing options for audiovisual media services produced by online influencers, with a focus on youth and consumer protection, and to fully enforce the clear and recognisable separation between advertising and own content; recognises that the failure to identify commercial communications as such is increasingly becoming a problem in terms of competition and has a negative impact on protecting minors and consumers;
43. Calls on the Member States and the Commission to ensure wherever possible that the identity of the audiovisual media service provider is clearly identifiable by users, including online, by means of a logo or other type of branding;
44. Urges the Member States to fulfil their obligation under Article 30(4) of the AVMSD regarding the financial and human resources of national regulatory authorities or bodies in the light of their increasingly complex tasks and to promote cross-border cooperation; insists on the need to safeguard the independence required by the AVMSD; stresses the importance of providing ERGA with effective means and tools to monitor compliance with the obligations laid down in the AVMSD, as well as sanctions in the event of non-compliance; requests that ERGA be given more independence by, among other things, setting up a secretariat for it independent from the Commission;
45. Insists that, irrespective of future legislation, the Commission ensure a consistent and comprehensive implementation of the AVMSD and its objectives in the Member States, paying special attention to Article 30 thereof, which, in any case, requires continual, careful monitoring and timely reactions to any undesirable developments; demands that the Commission act swiftly if there are indications that any national regulatory authority or body may exercise its powers in a manner incompatible with the objectives and values of the EU, particularly in the case of suspected violations of the rights and freedoms enshrined in the Charter of Fundamental Rights of the EU;
46. Urges the Commission to issue in good time the guidelines required under Article 33a(3) of the AVMSD on the scope of the Member States’ reports on the implementation of measures for the development of media literacy skills, so that the timely submission of these reports is not further delayed; reiterates that recipients of media services within the EU have a right to receive and impart information pursuant to Article 11 of the Charter of Fundamental Rights of the EU and recalls that this right and the ability to access free and pluralistic media services in the EU cannot be enjoyed by all unless they are accompanied by sufficient media literacy education, which was particularly addressed in the revised AVMSD; emphasises that media literacy should not be limited to learning about tools and technologies, but should rather aim to equip people with the critical thinking skills required to exercise judgement, analyse complex realities and recognise the difference between opinion and fact;
47. Notes that challenges to the right to receive and impart information and to the ability to access free and pluralistic media services are often compounded as a result of the predominance of certain online platforms; recommends therefore that consideration be given to creating levies on these platforms from which funding could originate for the establishment and strengthening of media literacy initiatives across the Member States;
48. Instructs its President to forward this resolution to the Council and to the Commission.
ANNEX: LIST OF ENTITIES OR PERSONS FROM WHOM THE RAPPORTEUR HAS RECEIVED INPUT
The following list is drawn up on a purely voluntary basis under the exclusive responsibility of the rapporteur. The rapporteur has received input from the following entities or persons in the preparation of the report, until the adoption thereof in committee:
Entity and/or person
ANGA – Verband Deutscher Kabelnetzbetreiber e.V.
Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland
Association of Commercial Television and Video on Demand Services in Europe
Association of European Radios
Association of TV & Radio Sales Houses – egta
Association Relative à la Télévision Européenne – ARTE
Autorité publique française de régulation de la communication audiovisuelle et numérique – ARKOM
Bundesverband Digitalpublisher und Zeitungsverleger, Medienverband der freien Presse
Consell de l’Audiovisual de Catalunya
Direktorenkonferenz der Landesmedienanstalten
Electro and Digital Industry Association – ZVEI
EUROCINEMA – Association de producteurs de cinéma et de télévision
European Advertising Standards Alliance
European Audiovisual Production Association
European Broadcasting Union
European Coalitions for Cultural Diversity
European Composer & Songwriter Alliance
European Film Agency Directors Association
European Grouping of Societies of Authors and Composers – GESAC
European Magazine Media Association & European Newspapers Publishers’ Association
European Producers Club
European VOD Coalition
Federation of European Screen Directors
International Federation of Film Distributors’ and Publishers’ Associations
International Union of Cinemas
National Electronic Mass Media Council (Lettland)
Network of Independent European Film Distributors
News Media Europe
Radio Télévision Luxembourg Deutschland
Société des Auteurs et Compositeurs Dramatiques
Society of Audiovisual Authors
Spanish Federation of Audiovisual Producers
Spitzenorganisation der Filmwirtschaft
Union Network International Europe
Verband Österreichischer Privatsender
Verband Privater Medien e.V. VAUNET
Zentralverband der deutschen Werbewirtschaft
Zweites Deutsches Fernsehen
for the Committee on Culture and Education
on the implementation of the Audiovisual Media Services Directive
Rapporteur for opinion: Marc Angel
The Committee on the Internal Market and Consumer Protection calls on the Committee on Culture and Education, as the committee responsible, to incorporate the following suggestions into its motion for a resolution:
A. whereas the creation of an area without internal borders for audiovisual media services that also affords a high level of protection to objectives of general interest could not be sufficiently achieved by the Member States alone and could therefore be better achieved at Union level;
B. whereas the latest revision of the Audiovisual Media Services Directive (AVMSD) [12] , adopted on 28 November 2018, provided a framework for strengthening the country of origin principle and improving the protection of consumers, in particular minors and persons with disabilities, in the online world;
C. whereas under the revised AVMSD, the European Regulators Group for Audiovisual Media Services brings together representatives of national independent regulatory bodies in the field of audiovisual services to advise the Commission on the consistent implementation of the AVMSD and to exchange best practices;
D. whereas the significantly delayed transposition of the AVMSD by Member States undermines its effectiveness;
E. whereas it is necessary to ensure consistency between the AVMSD and the Geo-blocking Regulation [13] ; whereas the Commission report on the first short-term review of the Geo-blocking Regulation [14] stated that on audiovisual content, in particular, the Commission would engage in a dialogue with stakeholders with a view to fostering the circulation of quality content across the EU; whereas this dialogue is included as Action 7 in the Media and Audiovisual Action Plan [15] ;
1. Underlines the importance of the proper implementation of the AVMSD, which aims to establish a safer and fairer framework for audiovisual services and to ensure a high level of consumer protection; regrets that not all Member States have implemented the AVMSD, thus increasing fragmentation in the single market, creating unjustified barriers and harming media pluralism in Europe; encourages all Member States to implement it urgently;
2. Is concerned that because of the delay in transposition, a full-scale ex-post evaluation is not entirely possible at present;
3. Highlights the importance of the strengthened country of origin principle, which helps providers to abide by the rules and facilitates the cross-border provision of services by providing legal certainty and a better understanding of the rules providers must follow, while at the same time strengthening consumer protection in the single market; underlines that the country of origin principle is essential for achieving a single market in audiovisual media services and remains relevant for incentivising investments in innovative and creative productions; notes that derogations from the country of origin principle could lead to the fragmentation of the single market and generate administrative burdens for cross-border services;
4. Stresses that under Article 7 of the AVMSD, media service providers must ensure, without undue delay, that audiovisual services are continuously and progressively made more accessible to persons with disabilities, in line with the accessibility requirements set out in Directive (EU) 2019/882; regrets, however, that substantial differences exist between Member States with regard to the fulfilment of these obligations; is concerned that, as a result of delays and differences in transposition, Member States are not properly addressing the needs of persons with disabilities and therefore recalls that it is vital that each Member State designate an easily accessible and publicly available online point of contact without undue delay;
5. Recalls that media service providers should report regularly to the national regulatory authorities or bodies on the implementation of the measures related to accessibility; calls on the Commission to promote the exchange of best practices between Member States and between media service providers; stresses the need for coordination in the implementation of the AVMSD and Directive (EU) 2019/882 in order to achieve the best possible result for persons with disabilities;
6. Recalls the AVMSD’s key provisions to protect minors, in particular the prohibition on processing minors’ data for commercial communications and the provisions on product placement and on strengthening the control and regulation of content likely to harm the physical, mental or moral development of minors, including content relating to unhealthy foods and beverages; urges the Commission to secure the strict implementation and proper enforcement of these rules; notes that self-regulatory codes can play an important role in this regard and underlines that they should take into account the fast evolution of marketing techniques;
7. Underlines the need to ensure the proper enforcement of existing transparency rules for advertisements, including those presented by influencers;
8. Highlights the importance of a well functioning internal media market with a high level of consumer protection; underlines that the proposed European media freedom act aims to further enhance cooperation between the national regulators by establishing a European media board; stresses that independence and adequate financial and human resources must be guaranteed in order to fulfil these new responsibilities and to effectively strengthen consumer rights and consumer choice; insists on the importance of avoiding overlaps between the two instruments in order to preserve their effectiveness;
9. Stresses the need for clarification on how the implementation of the AVMSD complements that of other relevant EU legal acts, such as the recently adopted Digital Services Act [16] , noting that the AVMSD should be considered lex specialis in relation to the generally applicable framework set out in the Digital Services Act in order to ensure a high level of protection for consumers and a consistent and coordinated legislative framework across Member States;
10. Underlines the need to ensure full compliance with principles such as non-discrimination, consumer protection, technological and net neutrality, trustworthiness and inclusiveness and calls for users’ rights to be protected more robustly; notes that the different levels of consumer protection with regard to commercial communications result in the absence of a level playing field for audiovisual media services and video‑sharing platforms, which is detrimental to consumer protection, and calls on the Commission to address this issue; recalls that the Treaty on the Functioning of the European Union and the AVMSD prohibit discriminatory restrictions on the free movement of media services; stresses the need to ensure that audiovisual media content can be transmitted at the speed and quality intended by its creators and distributors; opposes all attempts to limit the application of the principle of net neutrality in this regard: is concerned about the implementation of the AVMSD in certain Member States, in particular in Hungary, where a national law bans or restricts the display of LGBTI communities and issues in programming and advertising content, constituting a clear breach of the EU’s values, principles and laws; recalls that national laws that violate fundamental rights under the EU Charter of Fundamental Rights, the Treaty on European Union, the Treaty on the Functioning of the European Union and EU internal market legislation, including the AVMSD, not only have negative effects on consumers but also harm the right to conduct business; notes that the Commission launched infringement proceedings against Hungary in this regard and strongly encourages it to follow up thoroughly in that Member State and also ensure the proper enforcement of the AVMSD across the Union;
11. Highlights the need to ensure the proper implementation of the new provisions protecting the integrity of the broadcasting signal and encourages Member States to adopt comprehensive and effective rules to protect the integrity of the broadcasting signal on all relevant online platforms and user interfaces used to access audiovisual media services;
12. Notes the provision recognising the ability of Member States to ensure the prominence of audiovisual media services of general interest; highlights the need to guarantee the proper implementation of this provision; points out that only some Member States have taken measures to ensure the prominence of audiovisual media services of general interest and calls on the Commission to present guidelines in relation to Article 7a;
13. Considers that the free movement of services should be ensured together with the protection of cultural diversity; welcomes the smooth and effective implementation of the requirement for 30 % of works in video-on-demand catalogues to be European, which has had a positive impact on cultural diversity by increasing EU audiences’ exposure to European works and by offering more opportunities for European creations to reach viewers across the EU; underlines, at the same time, that quotas diverging from the AVMSD as regards the share of European works, sub-quotas for national works, additional investment requirements and complex financial contribution obligations create significant compliance costs for market operators and may undermine the integrity of the single market; further underlines that streaming is an established form of accessing media in the internal market and therefore calls on the Commission and the Member States to further elaborate on the possible application of the AVMSD rules on European works to music streaming services, at least with regard to promotion, prominence, and discoverability;
14. Notes the opportunities offered by major non-EU-based video-on-demand services to European audiovisual creators and producers, but also points to the potential challenges, given that the definition of European works includes works originating in both European Union Member States and states that are parties to the European Convention on Transfrontier Television, such as the United Kingdom; calls on the Commission to look into the impact on the entire value chain in the European cultural and creative sector and to investigate how these platforms comply with the Union’s internal market rules; stresses the need to support European SMEs, which are necessary for the proper functioning of the audiovisual sector and for a diverse offer, which enhances consumer choice;
15. Recalls that cross-border access to goods and services online should be without any barriers or discrimination for European consumers, regardless of their location, residence or nationality; notes, in this regard, the importance of ensuring consistency between the AVMSD and the Geo-blocking Regulation, considering that the scope of the latter does not cover audiovisual content, notes that with the Portability Regulation [17] , progress has been made to the benefit of consumers; recalls that certain obstacles still persist, particularly in the provision of audiovisual services, and calls on the Commission to remove unjustified, disproportionate and discriminatory barriers; reminds the Commission to present to Parliament the outcome of its stakeholder dialogue on possibly extending the scope of the Geo-blocking Regulation;
16. Stresses that the scope of the AVMSD has been extended to impose certain obligations on video-sharing platform providers under Article 28b , such as the requirement to take appropriate measures to protect minors from harmful content and all users from content containing incitement to violence or hatred; highlights the need to ensure the proper implementation of these provisions;
17. Recalls that according to the Commission communication entitled ‘Guidelines on the practical application of the essential functionality criterion of the definition of a “video-sharing platform service” under the Audiovisual Media Services Directive’, published in 2020, video-sharing platform services provide audiovisual content that is increasingly accessed by the general public, and this is also true of social media services, which have become an important medium for sharing information; further recalls that according to these guidelines, certain social media services could fall within the scope of application of the new rules on video-sharing platforms if they meet certain criteria.
ANNEX: LIST OF ENTITIES OR PERSONS
FROM WHOM THE RAPPORTEUR FOR THE OPINION HAS RECEIVED INPUT
The following list is drawn up on a purely voluntary basis under the exclusive responsibility of the rapporteur. The rapporteur has received input from the following entities or persons in the preparation of the draft opinion: