EN Official Journal of the European Union C 34/157

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and the Council amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in the Member States concerning the provision of audiovisual media services in view of changing market realities’

(COM(2016) 287 final — 2016/0151 (COD))

(2017/C 034/26)

Rapporteur: Raymond HENCKS

Consultation European Commission, 6.7.2016 Legal basis Articles 53(1) and 62 of the Treaty on the Functioning of the European Union (COM(2016) 287 final — 2016/0151 (COD)) Section responsible Transport, Energy, Infrastructure and the Information Society Adopted in section 6.10.2016 Adopted at plenary 19.10.2016 Plenary session No 520 Outcome of vote (for/against/abstentions) 218/2/7

1. Conclusions and recommendations

1.1. The EESC recognises that, given the developments in the audiovisual market resulting from the emergence of new forms of services and new stakeholders and the development of new forms of ‘on-demand’ consumption, it is now essential that the European regulatory framework for audiovisual media services be adapted. It supports the European Commission’s efforts to update the 2010 Audiovisual Media Services Directive (AVMSD), subject to the remarks below.

1.2. Audiovisual media services must not be treated as having purely commercial value. The EESC believes that measures taken to protect minors and adolescents, as well as measures to ensure the participation of people with disabilities and elderly, poor and excluded people in social and cultural life, cannot be subordinated to economic considerations.

1.3. The EESC takes note of the plan to delete the current Article 7 of the AVMSD on accessibility for persons with disabilities and replace it with the proposal for a Directive on the approximation of laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services (COM(2015) 615 final). Should the Commission’s proposal not come to fruition, Article 7 should be upgraded to oblige Member States to promote, inter alia, sign language, subtitling, audio description and easily understandable menu navigation.

1.4. The EESC welcomes the fact that, in a spirit of cultural diversity, the Union is promoting the dissemination of European works and that major audiovisual media service providers will be obliged to offer them in their programmes and catalogues in accordance with a quota. The Committee nevertheless proposes that the minimum 20 % quota imposed on major video-on-demand (VOD) providers be increased to 50 %, in line with the minimum quota set for television broadcasting. It also proposes that a minimum 20 % quota be set for providers with a low turnover or low audience numbers, together with clarification of what is meant by ‘low turnover’ and ‘low audience’.

1.5. The EESC is opposed to the option granted to Member States to impose on on-demand services in their jurisdictions, as well as those established in a different Member State but targeting their national audiences, financial contributions in the form of direct investments in works or levies allocated to national film funds. This could distort competition, depending on whether or not a Member State introduces such contributions, and could penalise the audiovisual services of a Member State intended for its citizens established in another Member State.

1.6. With regard to the protection of minors, the EESC welcomes the fact that the draft Directive plans to align the standards of protection applicable to video-sharing platform providers with those applicable to television broadcasting. However, it calls for the opportunity to be taken to clarify the provision in Article 27 of the AVMSD (2010/13/EU), which requires Member States to take appropriate measures to ensure that, at times when minors are likely to be watching, broadcasts do not include any programmes which might seriously impair their physical, mental or moral development. The EESC suggests setting a specific time period, and including a ban on alcohol advertising during that period.

1.7. The EESC approves the proposed amendment in the new Article 6, stating that audiovisual media services may not ‘contain any incitement to violence or hatred directed against a group of persons or a member of such a group defined by reference to sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. However, it draws attention to the fact that, in the new Article 28a dealing with video-sharing platform services, the references to sex, sexual orientation and disability have been forgotten and that the terminology used is sometimes different. It is proposed that Article 28a(1)(b) use the same wording as in Article 6.

1.8. With a view to protecting everyone from content containing incitement to violence or hatred, and to protecting minors from material likely to be harmful to their development, the EESC supports the promotion of co-regulation and self-regulation by means of codes of conduct, provided that the European Regulators Group for Audiovisual Media Services (ERGA) is actually set up and equipped to effectively perform its functions, in particular as laid down in Article 30a(3)(c).

1.9. The EESC is opposed to the European Commission’s proposal to allow audiovisual media services more space and flexibility for advertising, to the detriment of consumers, who will be faced with more and longer commercial breaks during peak viewing hours. These new rules on commercial breaks also risk harming the integrity of works and the moral rights of authors.

1.10. In the EESC’s view, the rules concerning monitoring by national regulatory authorities have failed with regard to fictitious companies in one Member State that use the satellite capacity of a third country to reach a wide audience in another Member State; it believes that these rules need to be revised, and supplemented with a provision stating that operators who have an audiovisual licence in one Member State but provide audiovisual services in another, are subject to the legislation of both Member States.

2. Introduction

2.1. Since 1989, EU rules have governed audiovisual media and safeguarded cultural diversity and the free flow of content within the EU. The AVMSD, which has been updated several times to reflect technological and commercial developments, harmonises all national legislation on audiovisual media at EU level. It currently covers television programmes and VOD services.

2.2. However, the audiovisual media landscape is changing at a rapid pace due to ever-increasing convergence between television and services distributed via the internet. New business models, new technological instruments for communication and new stakeholders are emerging, particularly VOD providers and video-sharing platforms, offering online audiovisual content.

2.3. TV broadcasting and VOD are subject to different rules and varying levels of consumer protection. This is why the Commission is committed to establishing a better balance between the rules applicable to traditional television broadcasting bodies, VOD service providers and video-sharing platforms.

3. Content of the Commission proposal

3.1. As part of its Digital Single Market Strategy, the Commission has proposed updating the AVMSD in order to create a fairer environment for all stakeholders on the market, to promote European cultural diversity and European films, to better protect minors, to tackle hate speech and incitement to violence, to safeguard the independence of audiovisual regulatory authorities and to offer greater flexibility to broadcasters with regard to advertising. The amended AVMSD will also apply to online platforms and video and content sharing sites.

3.2. The Commission has proposed the following measures:

3.2.1. Responsibility of video-sharing platform providers

Video platforms should protect minors from harmful content and protect all citizens from incitement to violence, hatred or racism. The Commission will invite all video-sharing platforms to cooperate as part of the Alliance to better protect minors online, in order to develop a code of conduct for the industry. National audiovisual regulatory authorities will have powers to enforce the rules, which, in accordance with the applicable national legislation, could also result in fines. Consumer protection measures provided for in the E-Commerce Directive will also apply to video-sharing platforms.

3.2.2. An enhanced role for national audiovisual regulatory authorities

From now on, the Directive will guarantee the autonomy of national regulatory authorities. The role of ERGA, made up of the 28 national audiovisual authorities, will be defined in EU legislation. ERGA will assess codes of conduct in the area of co-regulation and will advise the European Commission.

3.2.3. Further developing European creativity

The Commission would like broadcasters to continue to allocate at least half of their viewing time to European works and it will oblige on-demand service providers to guarantee at least a 20 % share of European works in their catalogues. The proposal also specifies that Member States will be able to ask on-demand services available or distributed in their territory to contribute financially to the production of European works.

3.2.4. Greater flexibility for advertising by television broadcasters

The new audiovisual rules do not increase the total duration of advertising time permitted for TV broadcasters between 7 a.m. and 11 p.m. but give them greater flexibility over the timing of commercial breaks. It is thus proposed that the hourly limit be abolished and that a daily limit of 20 % advertising between 7 a.m. and 11 p.m. be introduced instead. Broadcasters and on-demand service providers will also have more flexibility to use product placement and sponsorship.

4. General comments

4.1. The EESC is committed to the diversity of audiovisual media services (AMS) and promoting the free circulation of information, cultural development and the freedom to form opinions, under conditions that safeguard the plurality of information and cultural and linguistic diversity.

4.2. It also welcomes the fact that the directive takes care to respect fundamental rights and to observe the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to freedom of expression, the freedom to conduct a business, the right to judicial review, and promotion of the application of the rights of the child.

4.3. It supports the Commission’s efforts to promote Europe’s heritage and develop Europe’s audiovisual creativity, and to increase the production and circulation of high-quality European programmes, while respecting the principles of human dignity and ensuring a high level of protection for minors, consumers and personal data, as well as equitable and fair competition.

4.4. The EESC recognises that, given the developments in the audiovisual market resulting from the emergence of new forms of services, new technological instruments for communication and new stakeholders and the development of new forms of ‘on-demand’ consumption, it is now essential that the European regulatory framework for audiovisual media services be adapted.

4.5. Given the complexity of the legislative provisions relating to the supply of audiovisual media services, the EESC considers that it would be appropriate, for reasons of clarity and rationality, for the amendments and additions that the Directive will introduce into Directive 2010/13/EU of 10 March 2010 (the AVMSD) to be set out in a consolidated text.

4.6. Audiovisual media services are essential economic, social and cultural public services that embody values and meaning, which to a large extent come under human rights and must not be treated as having purely commercial value. This is particularly true for children and adolescents, whose training and education depend increasingly on the media, taking into account the influence of audiovisual media services on viewers’ opinions, but it also applies to people with disabilities and elderly, poor and excluded people and to their participation in and integration into social and cultural life, which is inextricably linked with the provision of accessible and affordable media services.

4.7. The EESC acknowledges that the current Article 7 of the AVMSD, which is extremely vague and not particularly meaningful, is being deleted and will be replaced by the Directive on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services (COM(2015) 615 final), which is currently only at the proposal stage.

4.8. Should the Commission’s initiative to adopt a European legislative act establishing a general framework for accessibility of products and services, in accordance with the United Nations Convention on the Rights of Persons with Disabilities, not come to fruition, stricter legislative provisions obliging Member States to promote, inter alia, sign language, subtitling, audio description and easily understandable menu navigation, in line with recital 46 of the 2010 AVSMD, should be set out in a new Article 7 of the AVSMD. The EESC would point out in this context that, in Member States where broadcasts are generally subtitled, a particularly high proportion of the population are bilingual or multilingual.

4.9. The EESC welcomes the fact that, in a spirit of cultural diversity, the Union is promoting the dissemination of European works and that major audiovisual media service providers are obliged to offer them in their programmes and catalogues in accordance with a quota.

4.10. With regard to the 20 % minimum quota for European works applied to major VOD service providers, this obligation does not require an additional effort on their part as they have already reached this level (see the statistics from the European Audiovisual Observatory). In addition, this quota is very modest compared with the requirement applicable to linear television broadcasters, who are still obliged to respect a minimum quota of 50 % of European programmes. The minimum quota for VOD services should therefore be the same as that for television broadcasting.

4.11. The EESC has reservations about the possibility of granting exemptions on European works to small- and medium-sized enterprises with a low turnover or low audience numbers, as this could constitute a new form of unfair competition. It considers that a minimum 20 % quota should be set, and calls for clarification of what is meant by ‘low turnover’ and ‘low audience’.

4.12. Member States will be permitted to impose financial contributions, in the form of direct investments in works or payments to national film funds, on on-demand services falling within their jurisdiction, or those situated outside of their borders that target their national audience.

4.13. The EESC is opposed to making this measure voluntary, as it could distort competition rules, depending on whether a Member State decides to introduce these contributions, and it could penalise audiovisual services from one Member State designed for their citizens living in another.

4.14. With regard to the protection of minors, the EESC welcomes the fact that the draft Directive plans to align the standards of protection applicable to video-sharing platform providers with those applicable to television broadcasting. However, the EESC calls for the opportunity to be taken to clarify the provision in Article 27 of the AVMSD (2010/13/EU), which requires Member States to take appropriate measures to ensure that, at times when minors are likely to be watching, broadcasts do not include any programmes which might seriously impair their physical, mental or moral development. The EESC suggests setting a specific time period, and including a ban during that period on advertising alcohol, over-the-counter medicines and foods considered harmful because they contribute to child obesity.

4.15. With a view to protecting everyone from content containing incitement to violence or hatred, and to protecting minors from material likely to be harmful to their development, the EESC supports the promotion of co-regulation and self-regulation by means of codes of conduct, which much be designed such that they are widely accepted by the main stakeholders. The EESC reiterates its point (1) that, in order for these regulatory instruments to be valid, recognised tools in any legal system, their configuration and ambit must be defined by specific precepts that are legally binding and enforceable, whether at national or European Union level, respecting at the same time the nature of these instruments, especially the voluntary agreement of the participants. The need to set up ERGA and equip it to effectively perform its functions, in particular as laid down in Article 30a(3)(c), is especially important in this regard.

4.16. The European Commission aims to give more space and flexibility for advertising to all audiovisual media services. Thus, films made for television, cinematographic works and news programmes may be interrupted by advertising or teleshopping once in each scheduled period of at least 20 minutes, whereas at present the corresponding period is at least 30 minutes; this would mean one more commercial break per hour. In addition, the current limit on advertising in any hour-long period, currently 20 % or 12 minutes per hour, will be replaced by a daily limit on commercial breaks and teleshopping slots of 20 % between 7 a.m. and 11 p.m., i.e. 192 minutes in total. Isolated spots will also be allowed and provisions on sponsorship and product placement will be made more flexible.

4.17. Thus, it will be possible for the broadcasts in question to be interrupted more frequently and for longer during hours chosen by the TV broadcasters, within the limit of 192 minutes of advertising between 7 a.m. and 11 p.m.

4.18. It is obvious that from now on there will be frequent interruptions for advertising during peak viewing hours, while early in the morning and late in the evening advertising will be more intermittent, in order to create the room for manoeuvre required to comply with the 20 % limit on advertising during the day. These new rules on commercial breaks also risk harming the integrity of works and the moral rights of authors.

4.19. The EESC is opposed to these new advertising rules and asks that the rules currently in force in this area be retained or even strengthened, as previously recommended by the EESC.

4.20. The differentiation between ‘linear’ and ‘non-linear’ services, which has been rendered obsolete by digital developments, could be dropped.

4.21. The EESC welcomes the steps taken to guarantee the independence of national audiovisual regulatory authorities, given that, in some Member States, their legal separation and functional independence from any other public or private body was not guaranteed and was subject to abuse.

4.22. In the EESC’s view, the rules concerning monitoring by national regulatory authorities have failed with regard to fictitious companies in one Member State that use the satellite capacity of a third country to reach a wide audience in another Member State. To avoid such abusive practices, the EESC recommends adding to the directive a provision stating that operators who have an audiovisual licence in one Member State but provide audiovisual services in another, are subject to the legislation of both Member States.

Brussels, 19 October 2016. The President of the European Economic and Social Committee Georges DASSIS

(1) OJ C 248, 25.8.2011, p. 118.