Who: The European Parliament and the Council of the European Union
Where: European Union
When: 28 November 2018
Law stated as at: 6 December 2018
What happened:
Broadcast law is changing. These changes are not only going to affect broadcasters and on-demand services, but have the potential to significantly increase the liability of online platforms, including for the ads made available by users.
Amendments to the Audiovisual Media Services Directive (2010/13/EU) (the “AVMSD“) were first proposed by the EU Commission on 25 May 2016. The AVMSD sets the framework for EU regulation of linear broadcasts and on-demand programme services, including rules and minimum standards for broadcast advertising.
The broad aim of the new AVMSD is to ensure broadcast rules can be applied more evenly across traditional TV, on-demand and newer forms of online video services. This proposal has subsequently been the subject of heated debate by parliamentary committees and council working parties.
Where are we now?
On 14 November 2018, a new directive amending the current AVMSD was agreed (the “Directive“). The amended Directive was published in the Official Journal of the EU on 28 November 2018 and member States now have until 19 September 2020 to implement the measures into national law.
The new Directive will change the way in which commercial video content is regulated across the EU.
We have summarised a few of the key changes for marketing and advertising. When considering these rule changes it is important to bear in mind that the scope of the new Directive has been significantly widened, as compared to the current regime. Not only will video-sharing platforms be subject to regulation for the first time, but many more services could be treated as linear broadcasters and on-demand services. This is because a “programme” no longer needs to be comparable to traditional TV shows. One result of this change is that collections of short, non-narrative clips on a vlog, for example, could potentially be treated as a regulated on-demand programme service.
Key marketing changes:
- Video-sharing platforms: A fundamental shift is the extension of the AVMSD to encompass online video-sharing platforms. These are platforms which allow users to share video content, but where the operator does not have editorial control over that content.
The revised AVMSD will impose the core broadcast ad requirements on these platforms where ads are “marketed, sold or arranged” by the platform. There is currently no guidance on the meaning of this phrase (market, sell or arrange), but it seems to be intended to apply where platforms have a degree of control over the ads. The most likely example is where media space is sold by a platform in the context of a regulated video service.
Where platforms have no control, i.e. they do not market, sell or arrange a particular ad, the platform will still need to take “appropriate measures” to comply with the broadcast ad rules.
Relevant obligations will include identifying commercial content posted by users, pester power restrictions, prohibiting tobacco ads and taking steps to limit children’s exposure to content promoting HFSS foods and alcoholic drinks.
- Broadcast ad minutage: For linear broadcast services, which can include live-streaming, the hourly limit on ad spots in a single broadcast hour (currently 20%) have been removed. Instead, the new AVMSD applies a more flexible approach with a 20% limit between 6am and 6pm, and then from 6pm to midnight. The programme day has been split up into two sections to avoid excessive advertising in prime time.
- Protecting minors: Emphasis is placed on encouraging member states to implement rules and codes of conduct to limit the exposure of minors to ads for alcohol and HFSS foods. The new text also mentions the importance of protecting minors from ads promoting gambling, but does not impose any specific obligations on broadcasters. These rules apply primarily to linear and on-demand services, but can also apply to video-sharing platform operators to a limited extent.
Why this matters:
If we have a transition period post-Brexit, which may run until the end of 2020, the new AVMSD will be brought into force in the UK. If we do not have a transition period, the UK may well still decide to align its broadcast rules with the EU in order to retain a semblance of the Single Market for video content services.
In terms of national implementation, the new AVMSD sets a minimum compliance regime. This means Member States can choose to impose stricter rules than those in the agreed text. Broadcasters, platform operators and owners of websites with distinct video sections should carefully monitor how each Member State chooses to adopt the new rules over the next 21 months.
