In brief: media law and regulation in European Union – Lexology

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Media
Summarise the regulatory framework for the media sector in your jurisdiction.
Articles 167 and 173 of the Treaty on the Functioning of the European Union (TFEU) can be considered the legal basis for audiovisual policy in the European Union, with the main objective being to create a single European market for audiovisual services. It encourages cooperation between the EU member states, in particular, in the audiovisual sector, and supports them where necessary. Within the European Union, the European Commission (the Commission) is responsible for any media policy.
Within the European Union, audiovisual media services (including broadcasting and on-demand services) are broadly regulated under Directive 2010/13/EU (Audiovisual Media Services Directive) (AVMS Directive). The AVMS Directive was adopted to codify and harmonise the existing legislation concerning audiovisual media services. Audiovisual media service is defined under article 1, paragraph 1a, of the AVMS Directive, as a service that is:
 
under the editorial responsibility of a media service provider and the principal purpose of providing programmes, to inform, entertain or educate, to the general public by electronic communications network
 
On 6 November 2018, the Commission adopted a revised version of the AVMS Directive, Directive 2018/1808 (AVMS Directive 2.0). EU member states had to transpose the new rules into their national legislation by 19 September 2020. AVMS Directive 2.0 ensures that EU regulation is adapted to the advanced convergence of audiovisual media services and current technological developments.
AVMS Directive 2.0 applies to broadcasts over terrestrial, cable, satellite and mobile networks as well as over the internet (platform and technology neutrality). It distinguishes between linear services (which push content to viewers (eg, by broadcasting via traditional television, internet or mobile phones) and non-linear services (which pull content from a network, eg, video-on-demand services), as well as video-sharing platforms (which, without bearing editorial responsibility, provide programmes and user-generated videos, or both). Under AVMS Directive 2.0, all three services are subject to tight regulations.
In 2014, the European Regulators Group for Audiovisual Media Services was established, which is responsible for advising on the implementation of the AVMS Directive.
The AVMS Directive, in particular, aimed to harmonise national rules on:
 
AVMS Directive 2.0 added in particular the following new elements:
 
In February 2018, Regulation (EU) 2018/302 on addressing unjustified geo-blocking and other forms of discrimination (Geo-Blocking Regulation) was adopted, which entered into force on 22 March 2018. The regulation took effect on 3 December 2018 and shall prevent geo-blocking (namely, businesses from discriminating (private or commercial)) end customers in obtaining goods or certain services being offered within the European Union. To this end, the following measures are prohibited:
 
The Geo-Blocking Regulation generally covers audiovisual copyright content, but not audiovisual content (eg, e-books, online music, software and videogames). On 20 November 2020, the Commission published a report on the first short-term review of the Geo-Blocking Regulation. Concerning extending the scope of the Geo-Blocking Regulation, the report identifies potential benefits, particularly for audiovisual content, the availability of which is often limited within the national territory. However, the report also identifies possible challenges for investment in content production and implications for the overall sector ecosystem and welfare impact requiring further assessments. Overall, the effects of extending the scope of the Regulation would largely depend on copyright-licensing practices and copyright-law considerations. Therefore, it remains to be seen whether the scope of the Geo-Blocking Regulation will be extended shortly.
Do any foreign ownership restrictions apply to media services? Is the ownership or control of broadcasters otherwise restricted? Are there any regulations in relation to the cross-ownership of media companies, including radio, television and newspapers?
The ownership of broadcasters is, to a great extent, regulated by the EU member states under their national broadcasting laws. National law must, however, comply with EU law, including (among others) the provisions of the TFEU and AVMS Directive 2.0.
EU law prohibits, in particular, any discrimination on grounds of nationality. Consequently, foreign ownership restrictions are generally prohibited. EU law also prohibits any actions that can prevent or impede the activities of persons or companies established in other EU member states. The TFEU outlines the following fundamental freedoms with which any national laws must comply:
 
National laws restricting any of these fundamental freedoms may be compliant with EU laws under certain circumstances (eg, where necessary for public safety or public health reasons) or in the case of an overriding public interest (eg, maintenance of the social order, protection of consumers’ rights, guarantee of the freedom of speech and plurality of media). However, such restrictions have to be interpreted narrowly and must be objectively justified.
According to recitals 8 and 94 of the AVMS Directive, EU member states shall prevent any actions that create dominant positions or a concentration of media ownership and shall contribute to the promotion of media pluralism. AVMS Directive 2.0 includes new provisions on the transparency of media ownership (recitals 15 and 16, article 5). According to the Commission, these provisions will have positive spillover effects on media pluralism. The revised Directive particularly allows EU member states to adopt legislative measures, obligating service providers under their jurisdiction to make accessible information concerning their ownership structure, including the beneficial owners. As far as Germany is concerned, the final proposal of the State Media Treaty implementing the revised AVMS Directive – currently under review by the Commission – does not make use of such legislative permission.
What are the licensing requirements for broadcasting, including the fees payable and the timescale for the necessary authorisations?
The licensing requirements, fees and timescales for authorisations are generally regulated by the EU member states. The AVMS Directive, however, specifies which EU member state is competent to regulate a broadcaster (under the country-of-origin principle) and sets out certain common minimum requirements and standards with which broadcasters have to comply and that are enforceable by national authorities. These minimum standards include, among others:
 
AVMS Directive 2.0 further introduced, among other things:
 
EU member states are not entitled to apply less stringent rules to broadcasters but may impose stricter rules on audiovisual media service providers under their jurisdiction, provided that these do not violate fundamental rights.
In view of the war in Ukraine, legislation has been put into force to invalidate the broadcasting licences of Russian broadcasters and ban them from broadcasting. Pursuant to Council Regulation (EU) 2022/350 of 1 March 2022 amending Regulation (EU) No. 833/2014, broadcasting licences or authorisation, transmission and distribution arrangements with Russia Today and Sputnik are suspended from 1 March 2022 onwards.
Are there any regulations concerning the broadcasting of foreign-produced programmes? Do the rules require a minimum amount of local content? What types of media fall outside this regime?
According to the AVMS Directive, EU member states shall ensure, where practicable, that broadcasters reserve a majority of their production, budget and transmission time (except for time allocated to news, sport, games, advertising, teletext services and teleshopping) for ‘European works’ (as defined in article 1 of the AVMS Directive). EU member states shall report on the implementation of this obligation. Such report shall, in particular, include a statistical statement on the achievement of the proportion for each television programme.
EU member states shall also ensure, where practicable, that broadcasters reserve at least 10 per cent of their transmission time for European works supplied by independent producers. Alternatively, EU member states may reserve at least 10 per cent of their programming budget for independent European works. EU member states shall define such ‘independent works’, taking into account the ownership of the production company, the number of programmes supplied to the same broadcaster and the ownership of secondary rights.
The AVMS Directive does not distinguish services through transmission (eg, online or mobile content). It rather distinguishes between linear and non-linear services. To the extent online or mobile content qualify as audiovisual media services, they are, thus, regulated in the same way as ‘traditional’ broadcast networks and fall under the scope of the AVMS Directive.
AVMS Directive 2.0 introduced a content quota according to which providers of non-linear services must secure at least a 30 per cent share of European works in their catalogues and ensure prominence of those works. However, this quota shall not apply to media service providers with a low turnover or a low audience.
In view of the war in Ukraine, legislation has been put into force to invalidate the broadcasting licences of Russian broadcasters and ban them from broadcasting. Pursuant to Council Regulation (EU) 2022/350 it is prohibited for operators to broadcast or to enable, facilitate or otherwise contribute to broadcast, any content by Russia Today and Sputnik, including through transmission or distribution by any means such as cable, satellite, internet protocol TV, internet service providers, internet video-sharing platforms or applications, whether new or pre-installed, from 1 March 2022 onwards.
How is broadcast media advertising regulated? Is online advertising subject to the same regulation?
The delivery of television advertising, sponsorship and teleshopping are broadly regulated by the AVMS Directive. A prerequisite for the applicability of the AVMS Directive is that the online service is qualified as an audiovisual media service or as a video-sharing platform.
The AVMS Directive aims at protecting consumers against excessive television advertising. It, therefore, outlines strict rules to ensure consumer protection, stipulating, in particular, that television advertising and teleshopping shall be recognised as such and shall be distinguishable from editorial content, either by optical, acoustic or spatial means. It allows for an interruption of the transmission of films (excluding series, serials and documentaries) once for each scheduled period of at least 30 minutes. Under the AVMS Directive, the proportion of television advertising and teleshopping spots within a given hour was not permitted to exceed a total of 20 per cent. Under the AVMS Directive 2.0, broadcasting companies are provided with more flexibility on the time frame of television advertising, changing the limit for advertising from 20 per cent per hour to 20 per cent per day (between 6am and 6pm and between 6pm and 12pm).
The AVMS Directive prohibits certain types of advertising, namely, advertising or teleshopping inserted during religious services and teleshopping for medicinal products subject to a marketing authorisation or medical treatment. It also restricts the advertising of alcoholic beverages to a large extent. However, AVMS Directive 2.0 widely waived the ban on product placement.
In addition to the restrictions under the AVMS Directive, Directive 2003/33/EC (Tobacco Advertising Directive) contains an EU-wide ban on cross-border tobacco advertising and sponsorship in the media other than television. The ban covers print media, radio, internet and events’ sponsorship involving several EU member states (eg, the Olympic Games or Formula One racing).
Any form of advertising is also subject to the fundamental principles of human dignity, non-discrimination on the grounds of race, nationality, religious or political belief as well as the protection of minors, health, safety and the environment. Further, Directive 2006/114/EC concerning misleading and comparative advertising stipulates general requirements for advertising, irrespective of the means of transmission. Additionally, article 13 of Directive 2002/58/EC on privacy and electronic communications establishes certain requirements for unsolicited communications such as electronic mail for direct marketing. These rules must be implemented into national law by the EU member states.
In 1992, advertising industry representatives in Europe launched the European Advertising Standards Alliance (EASA), an independent coordinating body promoting responsible advertising. EASA provides detailed guidance on how to advertise self-regulation for the benefit of consumers and businesses. It has become the single authoritative voice on advertising self-regulation and promotes high ethical standards in commercial communications. In 2016, the Commission explicitly recognised the role and effectiveness of advertising self-regulation.
Depending on the sector, additional national legislation on advertising remains possible. For example, with regard to gambling advertising, there are separate member state regulations. Most states of the European Union have imposed certain restrictions, including the requirement to obtain a licence to be allowed to advertise. In many cases, the national regulations are aligned with the 2020 ‘Code of Conduct on Responsible Advertising for Online Gambling‘ by the European Gaming and Betting Association. For example in 2021, Germany’s new State Treaty on Gambling (GlüStV 2021) came into force. According to the GlüStV 2021, holders of a licence for games of chance pursuant to paragraph 4 of the GlüStV 2021 are allowed to advertise their services, subject to provisions for the type and scope of advertising set out in paragraph 5 of the GlüStV 2021 (which are in addition to the requirements set out in other applicable legislation, eg, media law).
Are there regulations specifying a basic package of programmes that must be carried by operators’ broadcasting distribution networks? Is there a mechanism for financing the costs of such obligations?
According to article 31, paragraph 1 of Directive 2002/22/EC (Universal Service Directive), EU member states may impose must-carry obligations for the transmission of specific broadcast channels or services on companies providing electronic communications networks for the distribution of radio or television broadcast (eg, cable companies or telecoms operators). The prerequisite is that a significant number of end users use such networks as the principal means for radio and television broadcasts.
Must-carry obligations shall only be imposed to the extent necessary to meet clearly defined objectives of general interest (eg, media plurality). According to the European Court of Justice, economic considerations would not be considered general-interest obligations.
The rules for must-carry obligations must be transparent, proportionate and subject to periodical review at least every three years. They must be clearly identified and based on objective non-discriminatory criteria known in advance. Broadcasters and network operators have to be able to know their specific rights and obligations.
Must-carry obligations may also entail a provision for proportionate remuneration. However, it must be ensured that there is no discrimination in the treatment of different companies providing electronic communications networks in similar circumstances.
Article 31, paragraph 1 of the Universal Service Directive does not cover the content of the services delivered (eg, which broadcasters benefit from must-carry obligations). Such content issues are, however, subject to the principles of non-discrimination and proportionality.
AVMS Directive 2.0 introduced a content quota of 30 per cent share of European works. Where EU member states require media service providers under their jurisdiction to contribute financially to the production of European works, including via direct investment in content and contribution to national funds, they may also require media service providers targeting audiences in their territories, but established in other EU member states to make such financial contributions, which shall be proportionate and non-discriminatory.
Such financial contribution shall be based only on the revenues earned in the targeted EU member states. If the member state where the provider is established imposes such a financial contribution, it shall take into account any financial contributions imposed by targeted EU member states. However, the obligation to contribute financially to the production of European works shall not apply to media service providers with a low turnover or a low audience.
Is new media content and its delivery regulated differently from traditional broadcast media? How?
The delivery of new media content is regulated by the AVMS Directive, if and as far as it qualifies as an audiovisual media service.
Regulation (EU) 2017/1128 on cross-border portability of online content services (the Portability Regulation) obliges providers of online content, including audiovisual media services, to enable paying subscribers to access and use such service under terms equal to the offering at each subscriber’s residence, within all EU member states.
If a service does not qualify as an audiovisual media service, it is covered by Directive 2000/31/EC (e-Commerce Directive). A prerequisite for the applicability of the e-Commerce Directive is that the service qualifies as an information society service. According to article 1, paragraph 1 of Directive 98/34/EC (Information Society Services Directive), such information society service is any service normally provided for remuneration, at a distance, by electronic means and at the individual request of the recipient of the service (eg, web-based content, video portals, e-commerce and web-hosting).
Similar to the AVMS Directive, the e-Commerce Directive is also based upon the country-of-origin principle. A provider of information society services is therefore generally subject to regulation in the EU member state in which it has its establishment. In general, providers of information society services do not require prior authorisation under the AVMS Directive or the e-Commerce Directive.
On 6 May 2015, the Commission adopted the Digital Single Market Strategy, which announced a legislative initiative on harmonised rules for the supply of digital content and services and online and other distance sales of goods. These initiatives were followed by two new directives.
When is the switchover from analogue to digital broadcasting required or when did it occur? How will radio frequencies freed up by the switchover be reallocated?
According to the Commission, the European Union is leading the world in switching from analogue to digital television. The Commission recommended that switch-off in all EU member states should be completed by 2012. By the end of 2015, all EU member states had finally completed the switchover.
The re-farming of freed-up spectrum is mainly regulated by the EU Radio Spectrum Policy Programme (RSPP), which was established in 2012. The RSPP covers all types of radio spectrum use and sets general regulatory principles and policy objectives to enhance the efficiency and flexibility of spectrum use in the European Union. A key aspect of the programme is the establishment of an inventory of spectrum bands identifying the current use of spectrum together with an analysis of technology trends, future needs and spectrum-sharing opportunities. Through the use of spectrum bands, the Commission aims to identify inefficient spectrum allocations and to free up capacity for new (more economic and efficient) uses of such spectrum.
Does regulation restrict how broadcasters can use their spectrum?
No. This is regulated by the EU member states themselves.
Is there any process for assessing or regulating media plurality (or a similar concept) in your jurisdiction? May the authorities require companies to take any steps as a result of such an assessment?
Media pluralism is protected at the EU level as a part of the fundamental right to information and freedom of expression, which is stipulated in article 11 of the EU Charter of Fundamental Rights. Also, article 30 of the AVMS Directive assumed the independence of audiovisual media regulators. However, under the AVMS Directive, there were no clear and enforceable safeguards available to ensure the independence of regulators.
In October 2011, the Commission appointed a high-level expert group on Media Pluralism and Freedom to provide recommendations on media plurality. The Commission also established the Centre for Media Pluralism and Media Freedom (CMPF). The CMPF’s objective is to accompany the process of EU integration regarding media pluralism and to develop policy reports on EU competencies in this area.
In 2013, the CMPF conducted a pilot test implementation of the Media Pluralism Monitor Tool (MPM Tool). The MPM Tool was to identify potential risks to media pluralism in the European Union and provide support to policy and rulemaking processes. On 30 June 2014, the Commission adopted the Work Programme for ‘Measures concerning the digital content and audiovisual and other media industries’ and related pilot projects in the field of media pluralism and freedom to finance the implementation of the MPM Tool.
In 2016, an examination of the 28 EU member states, as well as two candidate countries, was carried out via the MPM Tool. The result showed that none of these countries was free from risks relating to media pluralism and media freedom. It also showed the erosion of freedom of expression and protection for journalists in one-third of the countries. The key findings of the examination were the following:
 
In November 2016, the Commission organised a colloquium on fundamental rights focusing on media pluralism and democracy, including topics such as:
 
AVMS Directive 2.0 includes new provisions on the independence of regulators (recital 53, article 30) and transparency of media ownership (recitals 15 and 16, article 5). According to the Commission, these provisions will have positive spillover effects on media pluralism (European Commission, 8 November 2018, answering the parliamentary question on the concentration of media ownership). AVMS Directive 2.0 particularly allows EU member states to adopt legislative measures, obliging service providers under their jurisdiction to make accessible information concerning their ownership structure, including the beneficial owners. As far as Germany is concerned, the new State Media Treaty, in force since 7 November 2020 and aimed to implement AVMS Directive 2.0, does not make use of such legislative permission.
Provide a summary of key emerging trends and hot topics in media regulation in your country.
On 15 December 2020, the Commission published a legislative proposal on a Single Market For Digital Services (Digital Services Act) (DSA), amending the e-Commerce Directive. The expressed purpose of the DSA is to update the EU’s legal framework, in particular by modernising the e-Commerce Directive adopted in 2000.
On 23 April 2022, the Commission, the European Parliament and the European Council reached a political agreement on the DSA. Once adopted, the DSA will be directly applicable across the European Union and will apply from 1 January 2024. As regards very large online platforms and very large online search engines, the DSA will apply from an earlier date, that is, four months after their designation by the European Commission according to the press release on the Digital Service Act by the European Commission of 23 April 2022.
The DSA contains EU-wide due diligence obligations that will apply to all digital services that connect consumers to goods, services, or content, including new procedures for faster removal of illegal content as well as comprehensive protection for users’ fundamental rights online.
In the scope of the DSA are various online intermediary services. Their obligations under the DSA depend on their role, size, and impact on the online ecosystem. These online intermediary services include:
 
Concretely, the DSA contains:
 
On 10 January 2022, the Commission published an open public consultation on the upcoming European Media Freedom Act, an initiative aimed to safeguard the pluralism and independence of the media in the EU internal market. It will build on the revised Audiovisual Media Services Directive, Directive (EU) 2018/1808 of the European Parliament and of the European Council of 14 November 2018 amending Directive 2010/13/EU 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 (AVMS Directive 2.0), which currently gives a framework for the Media Sector. The media Freedom Act aims to unify different national substantive rules and scrutiny procedures over media market operations, to create more transparency on media ownership and to establish comparable audience measurement mechanisms.
Consideration is being given to whether the Commission should only make recommendations or whether EU legislation is necessary to reach this goal. EU legislation would establish common principles for national scrutiny procedures of media market transactions and other restrictions to market entry and operation of the media. It would also envisage measures to enhance the transparency of media markets.
On 25 November 2021, the Commission published a proposal on transparency and targeting of political advertising, as part of measures aimed at protecting election integrity and open democratic debate. The proposed rules would require any political advert to be clearly labelled as such and include information such as who paid for it and how much. Political targeting and amplification techniques would need to be explained publicly in unprecedented detail and the use of sensitive personal data for such activities without the explicit consent of the individual would be banned. The aim is for the new rules to enter into force and be fully implemented by member states by spring 2023, namely, one year before the elections to the European Parliament 2024. The proposed Regulation builds on and complements relevant EU law, including the General Data Protection Regulation (GDPR) and the DSA.
On 16 September 2021, the Commission published the Commission Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union. Member States are expected to ensure full implementation of the European and national legal frameworks on confidentiality of communications and online privacy with a view to ensuring that journalists and other media professionals are not subject to illegal online tracking or surveillance.
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