October 17, 2016

The ERGA brings together heads or high-level representatives of national independent regulatory bodies in the field.

The ERGA says that it welcomes the review of the AVMSD and has already produced several reports making specific recommendations.  It says it is “pleased to note” that the European Commission has drawn from these in preparing its legislative proposal.

The ERGA says that it has looked at the legislative proposals from a practical point of view, considering what the consequences would be in terms of day-to-day regulation if the proposals were to become European law and what the implications and needs when applying and enforcing the proposed rules would be.

Considering the scope of the proposed Directive, the ERGA examines:

• the revision of the definition of “Audio Visual Media Service” to reflect the possibility that an element of a service might be an AVMS: “the principal purpose of the service or a dissociable section thereof…”;
• the removal from the definition of programme of the criterion “the form and content of which are comparable to the form and content of television broadcasting”; and
• the introduction of a definition of “user-generated video”: “a set of moving images with or without sound constituting an individual item that is created and/or uploaded to a video-sharing platform by one or more users”.

As for Video Sharing Platforms, the ERGA raises the following issues of a practical nature:

• the practical steps VSPs and regulators will need to take under the provisions of Article 28a;
• the ability of NRAs to establish jurisdiction; and
• the interpretation of “editorial responsibility”, and “dissociable content” within the meaning of VSP providers.

The ERGA also highlights the practical aspects of the proposed changes in the following areas:

• the replacement of children’s programmes by “programmes with a significant children’s audience”;
• the removal of the criterion of “undue prominence” and “special promotional references” in product placement; and
• the removal of the criterion of “special promotional references” in sponsoring.

As for European Works obligations, the ERGA discusses the following practical issues:

• the identification and monitoring of the share of 20% of European Works in the catalogue of on-demand audiovisual media services;
• the prominence of European Works in this catalogue;
• the imposition of financial contributions; and
• the application of the waiver.

On the protection of minors, the ERGA expresses concerns surrounding “protection tools” under Article 12 and the issue of who should bear the responsibility of protecting minors.

Finally, on territorial jurisdiction, the ERGA comments on the practical implementation of the provisions regarding attachment to the jurisdiction of a Member State (Article 2), derogations (Article 3) and the anti-circumvention procedures (Article 4).  To access the Opinion, click here.