Ready, Set… Go? The Audiovisual Media Services Directive Having undergone astonishing technological developments, the audiovisual sector has shown one of the most profound and rapid changes over the last decade. The changes it has under- gone posed a challenge to the existing regulatory framework, and Europe took its first big step towards the adaptation of this framework by adopting the Audiovisual Media Services Directive. This adaptation process is of such paramount importance that we have already dealt with it twice in the IRIS Special publications “Audiovisual Media Services without Frontiers” and “Editorial Responsibility”. You will also find analyses of selected aspects associated with the Directive in our IRIS plus series (www.obs.coe.int/oea_publ/iris/iris_plus). This IRIS Special complements these publications by considering a very important aspect: the transposition of the Directive into national law, which is the second, and crucial step in the adaptation of the regulatory framework for media services in Europe. It discusses the funda- mental concepts of the Directive and their importance for the transposition. On the basis of these concepts, it looks at practical issues and possible solutions that are emerging in the transposition arrangements of the various EU member states. Finally, it examines a number of subsidiary regulatory and monitoring issues. In this discussion, it becomes clear on the one hand how big the differences in the transpo- sition of the Directive from one state to another are and to what extent the different legal traditions of individual states have an impact. Numerous examples make it clear that the, in some cases, broadly defined concepts and targets of the Directive leave room for different national solutions, especially in the case of non-linear services. On the other hand, attention is also drawn to the fact that the current regulatory culture in some EU member states will Ready, change since a number of the Directive’s provisions will result in the lasting adaptation and simplification of their legislation. Set… Go? A discussion n of the aims of The promotion of cultural diversity The Audiovisual the Audiovisual Media n Protection against hate speech and other unacceptable content Services Directive and n Protection for underage users in particular the interests involved, n The limits to advertising Media Services Directive taking as examples: n Product placement n The right to short reporting Media Services Directive Audiovisual The Go? Set… – Ready, The challenges of transposing n Intelligibility, acceptance, manageability of the solutions chosen the Directive n Incorporation into existing media law of the concepts set out into national law n Drawing a distinction between linear and non-linear services n Definition of editorial responsibility n Actual conflict potential n Co-regulation – for what areas and how is it organised? n Delegation to (independent) regulatory authorities n Rights of citizens and the industry to be heard or have a say in matters n Monitoring of compliance with the law n The roles of the regulatory authorities n Responsibility for ensuring the implementation of, and compliance with, the rules in individual cases EUR 89 – ISBN 978-92-871-6665-4 IRIS Special: Ready, Set… Go? The Audiovisual Media Services Directive European Audiovisual Observatory, Strasbourg 2009 ISBN: 978-92-871-6665-4 Price: EUR 89 Director of the Publication: Wolfgang Closs, Executive Director of the European Audiovisual Observatory E-mail: [email protected] Editor and Coordinator: Dr. Susanne Nikoltchev, LL.M. (Florence/Italy, Ann Arbor/MI) Head of the Department for Legal Information E-mail: [email protected] Contributing Partner Institution: H HH H H H H H H H HH Institute of European Media Law (EMR) Franz-Mai-Straße 6 D-66121 Saarbrücken Tel.: +49 (0) 681 99 275 11 Fax: +49 (0) 681 99 275 12 www.emr-sb.de Editorial Assistant: Michelle Ganter E-mail: [email protected] Marketing: Markus Booms E-mail: [email protected] Translation/Proof-reading: Véronique Campillo, Katherina Corsten, France Courrèges, Aurélie Courtinat, Michael Finn, Sabina Gorini, Paul Green, Bernard Ludewig, Marco Polo Traductions, Manuella Martins, Nadja Ohlig, Stefan Pooth, Patricia Priss, Erwin Rohwer, Nathalie Sturlèse, Anne-Lise Weidmann Typesetting: Pointillés, Hoenheim (France) Print: Council of Europe, Strasbourg (France) Publisher: European Audiovisual Observatory 76 Allée de la Robertsau F-67000 Strasbourg Tel.: +33 (0)3 90 21 60 00 Fax: +33 (0)3 90 21 60 19 E-mail: [email protected] www.obs.coe.int Please quote this publication as: Susanne Nikoltchev, Ed., IRIS Special: Ready, Set… Go? – The Audiovisual Media Services Directive (Strasbourg, European Audiovisual Observatory, 2009) © European Audiovisual Observatory, 2009. Opinions expressed in this publication are personal and do not necessarily represent the views of the Observatory, its members or the Council of Europe. Ready, Set… Go? The Audiovisual Media Services Directive READY, SET… GO ? THE AUDIOVISUAL MEDIA SERVICES DIRECTIVE 1 Ready, Set… Go? The Audiovisual Media Services Directive Published by the European Audiovisual Observatory If the transposition of the EC Directive were to be compared to a competition, it would be between the national legislatures to see which has produced the best domestic law. Many different yardsticks could be used to measure which law is the “best”, such as the interests of the legislature or of those to whom the provisions are directed, the rights to be protected, the interests of society or – perhaps in first place in the EC context – its benefit for the EC’s internal market. However, the different interests involved are just one aspect of this publication, which also deals with the means of transposing the Directive, that is to say the choice and characteristics of the models selected and the actual steps taken to implement the provisions and subsequently monitor the results. These aspects are also important when it comes to assessing the quality of the domestic law in each case. A better understanding of the Directive: interests to be protected The recitals of the Audiovisual Media Services Directive mention a number of interests that the Directive wishes to serve with the Community-law framework that it lays down. In the very first recital, the Directive mentions ensuring optimal conditions of competitiveness and legal certainty for European companies and services in the context of the information technologies and the media and points out the (public) interest in cultural and linguistic diversity. Other recitals refer to the situation of small and medium sized companies or emphasise the public interest in having a right to information, the public interest in media pluralism, in the protection of minors, in consumer protection, and in enhancing public awareness and in fostering media literacy. These interests are seen in the context of the general digitisation of society, which has led both to the emergence of new services and to the need to revise existing regulations. This IRIS Special contains a large amount of information on how national solutions take into account the various interests, especially with regard to regulating non-linear services and in areas for which national rules can be relaxed in the future. The publication answers such questions as: • What approaches are available for promoting cultural diversity? • What protection can be provided against hate speech and other unacceptable content? In particular what protection can be given for underage users of audiovisual media services? • What limits will be imposed on advertising in the future? • What decisions will the member states take in the case of product placement? • What will happen to the right to short reporting? Models and organisation of the Directive’s transposition The second yardstick for the quality of national law consists of an assessment of the intelligibility, acceptance, manageability and efficiency of the solutions chosen for implementation. Their manageability and efficiency partly depend on how flexibly a solution can react and how it fits into the existing national legal framework. In contrast to the rules of the Directive, national law must relate to and be applied to © 2009, European Audiovisual Observatory, Strasbourg (France) 2 READY, SET… GO ? THE AUDIOVISUAL MEDIA SERVICES DIRECTIVE actual situations. EC directives set legislative objectives for 27 different countries, so directives mainly reflect compromises and necessarily work with general notions, broad definitions and generally worded objectives. The choice of the means for implementing these objectives is not only the prerogative of the member states but also imposes high standards on their implementation. The transposition of the general objectives into national law thus becomes both an interesting task and a difficult one to carry out. • How do the member states handle this yardstick? • How successful are they in transposing notions of EC law, such as linear and non- linear services, and incorporating them into existing media law? • How do they define editorial responsibility? • What criteria determine whether a product has been given too much prominence in a programme? As far as the choice of regulatory approach is concerned, the Directive expressly encourages the use of co-regulation. • For what areas is there actually a future for this form of regulation in the member states? • How is it organised? • When and why would a law passed by parliament perhaps be the better option? • How detailed should legal provisions be? • For what cases and to what extent should the regulation of specific issues or an entire set of issues be delegated to (independent) regulatory authorities? • What rights should the citizens have to be heard with regard to the various regulatory approaches and what rights should the industry stakeholders have? Finally, in order to transpose the Directive a number of organisational questions also have to be resolved. For example, it is necessary to lay down the rules and mechanisms that will enable co-operation between various decision-makers to take place and compliance with the law to be monitored.