CULT Committee discusses AVMSD

Written by Astrid Van Hecke on 23 November 2016 in EU Monitoring
EU Monitoring

On November 21, the CULT Committee discussed the draft report on the Coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services in view of changing market realities. 

Sylvia Costa (S&D, IT) explained that 950 amendments were tabled. The rapporteurs also tabled some amendments and she believed there is the possibility of reaching some agreements since some of the amendments are similar and could be melted together. The idea is to have various meetings to try to arrive at some compromises. The first upcoming meeting is on November 29. She explained that the CULT Committee will vote on its report on February 28 as they have to wait for the adoptions of the opinion-giving committees. The ENVI Committee is voting on December 5, the IMCO and JURI Committee on January 12 and the LIBE Committee on January 30. She said that the idea is to have a first reading agreement under the Maltese Presidency. The Council will adopt its general approach on May 23 2017.

Petra Kammerevert (S&D, DE) said that the large amount of amendments demonstrates that there is a great interest for the report in the house. 950 amendments were tabled. She said that 230 amendments relate to the recitals. She pointed out that anyone who has been in trilogues negotiation knows that the recitals are only negotiated in the technical meeting at the end of the negotiations. Therefore, she said that those who spent a lot of time on the recitals should not be sad if half a sentence does not make it into the final text. They will do their best to make sure that the amendments on the recitals are brought together in a logical whole, because they want a strong position of the Parliament when they go in the trilogues. The more they beat us down in the recitals, the harder it will be to have the text in the form we want, she said.

In term of the terminology of audiovisual media services, she said that some amendments prefer the old terminology of the audiovisual media services directive (AVMSD). The term of audiovisual media services has moved on because of the case law of the ECJ and we cannot just ignore that, she said. Other amendments request to enlarge the definition and the scope of the AVMSD to be extended to cover algorithms, implying that Facebook pages would also be covered by the AVMSD. She argued that she understands the desires but one has to be careful. If they overextend the terminology, they need to ask themselves what the AVMSD can achieve and if it is the right place to include all the problems of digitisation. They should also try to ensure that they go far enough so that the directive will stand the test of time for some years. She said they need to strike a balance between what the directive can achieve and making sure it is future proof. She said that they also need to look at the relationship with the e-commerce directive. They do not want to jeopardise the directive regarding the responsibilities of platform organisers. They will have to adjust things and make this clearer. There are some fears that the e-commerce directive might in some way be circumvented. She stated that some MEPs called for a clear line between video services and user generated content such as video platforms. She argued that the discussion should be about algorithms and whether they are the indication of positive awareness of the e-commerce directive. Some want livestreams to be included as well. She said they will discuss this in the shadow meetings.

She continued by mentioning that amendments were tabled on barrier freedom. She said that they need to ensure to strike a middle way that does not make it too difficult for those that offer content. She said that various good compromises are emerging. She added that it will also be discussed in the shadow meetings whether games of change should be included. There were some structural changes that were suggested to the AVMSD. Various amendments state that they go along with these structural changes and keep up the protection level of children and minors and increase that protection. There are many amendments on sponsoring and product placement. She said they would put this in brackets for the moment and apply the rules to all audiovisual media, and many go along with this. As for video sharing platforms, the view is that perhaps one should stick to the Commission proposal which would not include all of this in the regulation and perhaps they would stick to the code of conduct. If we were to decide to do that, then they should still leave it open to Member States in cases of doubts to take action if self-regulation is not enough. Concerning reliability, she said that they could perhaps consider a recital strengthening the point that the e-commerce directive takes precedence. They do not want to undermine that.

Legally speaking there is a difference between automatic content and compiling content. There is a whole area to do with advertising in general and the quantitative provisions for linear television. Many amendments want to go back to the 20 minutes per hour. She asked to bear in mind that the Parliament, on three occasions, asked for more flexibility in terms of advertising. The Commission followed that desire and also the Member States are in favour of this. She said that it would not help the credibility of the Parliament if they change their mind on this. She stated that they can perhaps combine the question of the windows and the single spots and the frequency of advertisements. They will also need to further discuss advertising on sugar and fat with the ENVI Committee committee. They need to look at what the ENVI Committee is suggesting on this. European works is also an important point. She explained that there is quite a range between no quotas and a quota of 50 percent. In terms of signal integrity, she said that their proposal will find support. She announced that there will be two shadow rapporteur meetings on November 29 and January 12. However, two meetings will not be enough as they also have to involve the LIBE Committee and they only vote on their opinion on January 30. She pointed out that the independence of authorities will also come up. They want the regulatory authorities to be independent, they want to strengthen that and embed that in the directive. Independence from the government has to be stressed and that is a good and healthy approach.

Sabine Verheyen (EPP, DE) said that the points of views are really far apart in some cases. There are different positions in terms of the flexibility of advertising for instance. Taking into account the developments which we see in the market as a whole, it is important to reach a sensible solution to get fair conditions for the advertising sector. She said that they need to have clear borders. The rules from the past do not work nowadays. She believes that they need to have more discussions on video-sharing platforms. Some people are demanding amendments that go beyond what the AVMSD can do. We have to take the e-commerce directive into account, we need better youth protection to guarantee more transparency without cancelling out the e-commerce directive, she said. She argued that some of the amendments will help them reach a good compromise on this point. She also pointed out that they do not want to weaken the ERGA. They did not want to create some kind of mega European regulator. The aim was to use the treaties they already have and to strengthen the European regulator. They need to guarantee that ERGA has the resources it needs to fulfil its mandate. They also need to listen to the political points of view and the expert knowledge that they have. They will be able to reach a compromise which will live up to the expectations people have and they will be able to introduce the changes that are required to do justice to this. She continued by saying that media supervision is something that came through many amendments. Regulators need to be independent from the governments. They need to guarantee that the systems that function well are not destroyed. She stated that independent and well-functioning regulators are vital. She believes they will be able to reach a compromise on this. She said that some amendments also refer to the fact that board members are being sacked at national level. They will be able to reach a compromise in terms of procedures. People are removed from boards and replaced by others for political reasons. She said they have a broad basis for discussion, also relating to European works. Some people do not want a quota at all while others want a 50 percent quota. She said that they will have to find a midway path which will promote cultural diversity.

Andrew Lewer (ECR, UK) stated that the rapporteurs’ choice to include video-sharing platforms is beyond what he thinks is practical or desirable. The ECR Group is in favour of increasing the protection of minors and backs therefore the Commission proposal to a limited and defined extension of the scope to video platforms based on a self and co-regulatory approach. They want to avoid overburdening the industry while providing protection online. He said there is a danger that some proposals appear to have gone some way beyond that. They extend commercial communications regulations to VSPs but that would be only be practicable in cases where VSPs are fully responsible for the advertising they place around content. However, that only happens in a limited number of cases. Where there is not that sort of editorial responsibility, a level of prior knowledge of content is required and that is not practical when it comes to user generated content, particularly the case where product placement is concerned. In addition, any measures that impose a responsibility on VSP to pre-screen generated content will be very difficult. This is a dangerous step in terms of restrictions, violating net neutrality. Such proposal would encroach on the limited liability of the e-commerce directive which is fundamental in developing the internet industry. He said that retaining articles 14 and 15 is helpful but not sufficient. When VSPs are asked to pre-screen, what would happen next? Such monitoring requirements would be impossible to implement on a proactive level as much content is uploaded per second. He said that they should not make changes for changes sake. If changes are made, then they should be evidence-based. He argued that they need to avoid unintended consequences.

Yana Toom (ALDE, EE) said that the Commission’s proposal included some very good aspects such as the relaxation of product placement, a more consistent approach on minor protection and the obligation to establish independent regulators. However some provisions should be removed, she said, such as the quota. She stated that ALDE supports the creation of European works as much as they can and wants to encourage people to watch, but a quota does not serve that purpose. The catalogue should be filled with national works. In addition, nothing is said about the quality of European works as such. On-demand services can buy cheap productions and remove non-European works to introduce the level of European works. Furthermore, she said that the introduction of a financial contribution is concerning. This creates an undesirable situation where on-demand services will have to contribute to 28 different national funds. Concerning platforms, she said that they should not be made responsible for each video uploaded on their platform. As for harmful content, the word moral is not suitable to measure if content is harmful or not. In terms of ERGA she said that they want further independence and they do not want their role to be minimised. In terms of accessibility, she said that they support article 7 in the directive but due to the Marrakesh Treaty, they remain open to how detailed the details have to be. 

Helga Trupel (Greens/EFA, DE) said that the Commission has good reason to keep the structure as it is. There should be no ex ante control on downloaded content; and this relates to the passive role. She argued that digital platforms are sometimes active: they monitor what is going on, they look at the content that is downloaded, they organise the material. The passive role that was in the e-commerce directive does not apply anymore. They want to clarify what they mean by active and passive and that requires a clear definition. As for the structure, on VSPs, there is content that qualifies as audiovisual material so it has to be more tightly regulated but there is also content uploaded by users and that does not fall under audiovisual media. She said that these two forms of content have to be separated. As for the role of ERGA, the Commission basic approach is that they need national regulators which have played a very important role: they need them to work more closely together. Their role is to monitor how the directive is implemented. They need to guarantee that their values and shared standards are correctly applied in all European states. We need to have this European requirement and the Commission is doing that, she said. It is an appropriate European requirement to guarantee a fair media regulation. However, there needs to be a compromise. They need to look at the wording so that the regulators are independent from the State. She agrees that VSPs should increasingly be subject to qualitative advertising rules but regarding quantitate advertising regulation, she does not think that they should be liberalised for television. She does not think that viewers want to see more ads. The 20 percent figures are good. She does not agree with the ALDE group on the promotion of European works and cultural diversity. She believes that her opinion is different from the ECR position as well. In her opinion, one has to promote European content because people want that. If one wants diverse material, then one needs European content. Content providers are already doing that. She said that their role is to encourage this and therefore she would like to see a 30 percent quota as a solution. As for social media, this should be covered by the directive, this relates to the issue of the active and passive role. She agrees that children need to be better protected; they need to have a clear vision regarding what they require for advertising and sponsoring of content that targets children. The current rule on half an hour is good. As for the issue of accessibly, this can be left up to the Member States. The issue of a freedom barrier for disabled people should be covered. She said that they have been contacted by disabled organisations. As for co-regulation, she argued that if co-regulation does not work, then she would leave the opportunity open to Member States to go beyond what is included in the directive. Advertising needs to be separate from editorial content. Product placement and sponsoring have to be recognised as such and this should also apply to video-sharing platforms.

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Astrid is Senior Monitoring Consultant at Dods EU Monitoring

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