Report': The European Regulation of VOD: Chaos or Coherence?

written by: Richard Kastelein

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The Regulation of On-demand Audiovisual Services: Chaos or Coherence? is the latest legal publication by the European Audiovisual Observatory, part of the Council of Europe in Strasbourg. The Observatory organised a workshop in April at London’s City University School of Law in order to bring together 25 experts to analyse the current challenges of regulating on-demand services in Europe. This latest publication brings together the various presentations and discussions made during the workshop.

The Saarbrücken-based Institute of European Media Law (EMR) provides the round-up of the workshop in the first chapter, followed by a useful introduction to different forms of on-demand audiovisual services by Sebastian Artymiak of the German Association of Commercial Broadcasters and Audiovisual Services. Artymiak points out that, in the era of hybrid television, TV will increasingly become a “jack of all trades” as a digital all-rounder. He feels that the challenge will be ensuring that “non-discriminatory access” to most popular channels at all times be ensured, regardless of device manufacturer or operator. For this, “HbbTV should be accepted as the standard for hybrid television by all device manufacturers”.

Mark Cole of the University of Luxemburg then looks at the question of what directive for which services, weighing up the various roles of the AVMS Directive but also the E-Commerce Directive in its application to audiovisual services that lack the “media” element.

The report then moves to national perspectives, focusing on regulating on-demand services in Italy (Roberto Viola and Maja Cappello of AGCOM), the classification criteria for on-demand audiovisual media services in the Netherlands (Marcel Betzel of the Dutch Commissariaat voor de Media), selected aspects of commercial communications regulation in Germany (Alexander Scheuer from the EMR) and a look at co- and self-regulation concerning protection of minors in the UK (Chris Dawes from the Department for Culture, Media and Sport).

The question of the industry and the various challenges to tackle is analysed by Lore Leitner and Erik Valgaeren of BENELUX Law Firm Stibbe. These two authors regret that the various European law-makers “did not succeed in creating one single basic framework which all audiovisual media service providers can rely on without further ado”. They point out the current difficulties of interpreting applicable regulation due to uncertainty and complexity and conclude that “the industry is awaiting how the new rules will be filled in, and […] is willing to contribute to improving the current framework if there are sufficient incentives”.

 

The expectations of Europe’s consumers are presented by Vincent Porter of the European Alliance of Listeners’ and Viewers’ Associations (EURALVA). Porter does not mince his words in stating that “Europe’s consumers consider that the AVMS Directive has largely failed to protect their interests”. He feels that it will be left to national level regulation to ensure that all households benefit from a choice of broadband services by which to access on-demand services and maintains that European works containing product placement, for example, should be “adequately and consistently labelled” before consumers pay to watch them.

The expectations of legislators are dealt with by Joan Barata Mir of Barcelona’s Universitat Ramon Llull. Barata points out that the current AVMS Directive was approved ”at a time when social networks or YouTube-based models of distribution of audiovisual content were just emerging or did not even exist yet”. He concludes that, in order to reach its objectives, “a good co- or self-regulatory system has to be based and established on clear public policy objectives, and viewed as convenient and adequate by the private sector”.

Leaving the last word to the EMR, this report reminds us that 19 December 2011 is the deadline for the European Commission to present its first report on the application of the AVMS Directive. We await Europe’s ‘end of term report’ on how efficiently we are regulating our media with… anticipation.

Although the deadline for the transposition of the Audiovisual Media Services Directive is long past (December 2009), the European Commission is still following closely the developments in audiovisual legislation in order to ensure that the main premises of the Directive filter correctly down to a national level. Earlier this year, no less than 24 EU countries received letters from the Commission containing very searching questions on the state of play in each country, not forgetting that Slovenia and Poland are actually the object of infringement procedures (while the Commission still has to announce its findings on Portugal). One of the main difficulties seems to be that, while linear services were already dealt with under the TWF Directive, the non-linear (on-demand) services are proving more difficult to regulate, particularly as European and national legislation have to cover both satisfactorily. This difficulty is aggravated by the fact that we cannot predict in a reliable fashion how these services will develop and so creating or adapting current legislation is at best a tricky enterprise.

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