Manuel José Damásio

• Head of the Film and Media Arts Department
• mjdamasio@ulusofona.pt

Until no later than September 2020, all EU countries will have to apply at the level of local legislation, the principles and norms of the new version of the European Audiovisual Media Services Directive (AVMSD).

Originally rolled out in 1989, and then named as “the television without frontiers directive”, the AVMSD is the key legal document defining the various pillars upon which the cross-border provision of audiovisual media services is built in the European Union (EU) and the coordination is assured between all national legal systems in regards to audiovisual media, both traditional TV broadcasts and on-demand services. More than just a regulatory piece, I also believe that the AVMSD is a key element molding the political economy of the television landscape in Europe, and we, in the realm of television studies should discuss the underlying ideologies this document depicts and the consequences it has on many levels, including at the level of the programme texts that constitute a core part of television.

Discussion about the new formulation of the AVMSD started as early as 2016 and were initially framed as part of the Digital Single Market Strategy of the EU. The current version of the directive was finalized on November 2018 and now awaits transposition to the national contexts until September 2020. The general focus of the proposed revision was initially around the idea of changing the scope of the directive to focus more on the single digital European market and also broaden it in order to introduce video-sharing platforms that were left out in the 2007 revision of the directive, like electronic newspapers or services like YouTube or Facebook. The 2018-2020 revision is first of all a reaction to the shortcomings of the 2007 version of the directive. What happened then was that the break-through which was expected in light of the convergence of media and which the directive assumed, was not accomplished.

Today, like in 2007, providing rules to shape technological developments in the EU, is one of the main ambitions of the directive. But that rarely seems to occur. Europe, and the different national funding schemes operating in all European countries, are very good at promoting the production of highly vibrant European content, but terrible at making it available outside the limits of existing nation-state borders.

Since the digital has come to be a major element of the television landscape in Europe, the EU and its regulatory bodies have been struggling to come to terms with phenomena like convergence and the uncertainties associated with it, but also with defining the ever blurring boarders of what an audiovisual service is. The quest for an appropriate and future oriented regulatory framework at the European level may be contrasted to the practice of national regulatory authorities. When faced with new media services and new business models, national regulators will inevitably have to make decisions and choices that take into account providers’ interests to offer their services as well as viewers’ interests to receive information. This balancing act performed by national regulators may tip towards the former or latter depending on the national legal framework, social, political and economic considerations, as well as cultural perceptions. This tension between a European regulatory framework and the national applications of the law is in my view one of the main problems associated with the AVMSD. One could say the directive is like the Pope showing all Catholics the ideal path to rectitude, but that the individuals that make up the church just don’t seem to listen to him. The tensions at the center of the AVMSD implementation are actually the tensions at the center of the overall “European Project”, and the current revision will not surpass them, unless clear political action is taken the moment the directive is transcribed into the different national contexts.

In a context where the business model of audiovisual producers and distributors is completely based on territoriality, there are clearly conflicting views the directive tries to balance. The European quest for a single digital market contrasts with the geo-blocking provisions for audiovisual content that are still maintained in order to preserve the diverse and multilingual nature that characterizes and differentiates European audiovisual content. At the same time, we repeatedly say we want European content to travel more inside the European geographies, but besides assuring the portability of locally produced content, and some support to distribution, in the context of the Media programme, we clearly are not doing enough in this regard, as figures from the European Audiovisual Observatory for the last decade show. The European audiovisual production and funding landscape is still concentrated in a small number of countries, in particular when we talk of “high-end” content; and the circulation of films and series coming from small countries or peripheral regions like the South of Europe, is still very limited.

But the new version of the AVMSD is not only focused on what to do with platforms in the era of multi-platforms. Other key proposed changes include a greater focus on minors’ protection, with the inclusion of mechanisms for the report of harmful content, age verification systems and parental control systems. But the changes that generated more commotion are the ones related to the imposition of a system of quotas and prominence to all operators in Europe, with related geo-blocking features – remember that audiovisual works are an exception on what concerns the provision of the EU Regulation 2018/302 , and for now are not affected by the EU decision that prohibits the use of geo-blocking methods in electronic commerce within the EU and bans the discrimination among European citizens based on their nationality, place of residence or place of establishment -, along with the principle of establishing a clear separation between operators and the national regulators and, probably even more importantly, changes in the definition of “programme”, “audiovisual service” and “European works” within the AVMSD.

Even if we will only know what the final outcomes of this process will be when each European country transcribes the directive to its local regulatory framework, and Brexit brings a lot of uncertainties about what will happen in the UK, the core idea that the directive intends to create a “level playing field” for emerging audiovisual media and preserve cultural diversity in Europe, seems to be the dominant ideological trace of the directive. This is where the topic of “quotas” enters the debate. The idea of a “level playing field” implies, on one side, that content sharing platforms that were not previously considered are now integrated into the regulatory framework, such as all platforms for video-sharing, but also that the independence of audiovisual regulators is also reinforced and that more flexibility is given to broadcasters, that now can extend their advertising time to 20% of broadcast time. Quotas appear on top of all this and should be understood in association with two of the main principles of the directive: the Country of origin Principle and the protection of European Audiovisual Works.

The problem is that since the first version of the directive in 1989 and, differently from concepts like the protection of minors, that have always generated consensus when transposed to the different national legislations, the aims, and in particular the means, whereby the cultural objectives of plurality and diversity of content should be reinforced in Europe via a system of quotas, have been interpreted and implemented in different manners by European countries and have polarised the unified vision the directive embodies. Once again, the already mentioned tension between the European and national regulatory contexts, prevents the directive from fulfilling its noble objectives. We can assume the introduction of clear quotas in the current version of the directive is a response to previous versions of the directive that were very ambivalent and soft in this regard and that, although regarded as successful in 2012 by the commission on what concerned “traditional” broadcast environments, were deemed as much more complex when digital environments of audiovisual distribution and sharing of content were at stake. That is why quotas for SVOD providers is at the center of the new directive: because it exemplifies the ambition of Europe to impose across all media its ideology of cultural diversity and plurality. In its legislative effort, the commission has pushed for initiatives in related domains, like the already mentioned directive on electronic commerce and geo-blocking and the 2017 Regulation on cross-border portability of online content services in the internal market that seeks to broaden access to online content services for travelers in the European Union.

The goal of all successive revisions of the directive has been, as already mentioned, to shape changing technological developments in Europe. While around 2002 the focus was mainly on the role Telcos would have in the future European landscape in a context of media convergence, the focus in 2007 was already on bringing VOD – video on demand platforms - on board, and again in 2018 and 2019 the goal is to “level the playing field” and extend the ability of the provisions laid down by the directive of being effective across all areas of the digital landscape. 

This implies the directive is able to define what an audiovisual service is, in a manner that includes all those services that are constantly emerging and changing. This ability of the legislation to adapt itself to a technological landscape that changes at a Breath-taking pace, has always been a problem. To deal with this, the directive introduced in the past the distinction between “linear” and “non-linear” services. While a VOD service may be viewed at the “moment chosen by the user and at his individual request” though being considered a “non-linear” service, broadcasts are transmitted simultaneously to the general public “on the basis of a [chronological] programme schedule”. The differentiation between linear and non-linear services is crucial for the application of the graduated approach to regulation. Accordingly, VOD services are regulated more lightly whereas a tighter regime applies to television broadcasting. The rising importance of SVOD in the European Union and the fast pace of technological change, again forced the directive to be revised in order to increase its ability to intervene upon SVOD platforms and assure the promotion of the production and distribution of European works on television that has been at the center of the directive since 1989. Since the moment the problem entered the European debate in 2012, quotas have been advocated by many countries, such as France, as the best way to assure that SVOD operators comply with the rules of the field and contribute to the objectives of a European audiovisual landscape where European works have a relevant part. But quotas by themselves seem not to be enough, and many countries, including Belgium, came up with the idea that only via the imposition of a protective regime based on prominence, can the survival of European audiovisual works be assured.

And this is where we are. The quotas – 30% - are defined and agreed upon. The GAFAN will happily comply with them – both Netflix and Amazon are already above 18% in most European countries where they operate – because in the meantime they have already started to adapt their marketing strategies to fit the requisites of the directive. But the problem remains. Without prominence, there is no certainty the quotas regime will be effective, and even with prominence, the problem of the circulation of content is not solved, because the European audiovisual landscape will continue to be shaped and reshaped, not only by technology, but also by territorial borders and the transaction of rights that occurs across those borders and assures the maintenance of the system.

When you go through all the successive debates that have underpinned the successive revision of the directive, some topics are always present: the need to protect European works, the need to protect diversity, the need to use regulation as a means to shape technological advancements. And we always end up using the same arguments to support yet another revision of the directive… until the next time we have to revise it because it proved once again to be deficient!

My argument is not at all against the enforcement of the principles laid down in the directive. I agree with many of them, and I think their enforcement is essential, at least if we want to maintain some sort of European identity and cultural diversity. What I’m saying is that regulatory action sustained on the basis of a determinism that assumes we can, via legislation, shape technology and its uses, is not the way to go. If we want to preserve and develop a richer European television landscape, we have to do more than what we are currently doing, and, considering the situation, that should start at local and national level, but always having the principles of the directive as a final objective. Two core areas must then in my view be addressed: the clear definition of prominence criteria and the establishment of quotas based also on formats and not only on the country of origin principle. But that is still up for discussion...