On 2 October 2018, the European Parliament overwhelmingly voted to update the rules on audiovisual media services, the Audiovisual Media Services Directive ("AVMSD"), to apply the rules to both traditional broadcasters as well as Video-on-Demand ("VOD") providers such as Netflix, YouTube or Facebook, and live streaming on video-sharing platforms. The revised AVMSD makes a number of key changes:
(1) 'Country of Origin' Principle and Jurisdiction Issues
The 'country of origin principle' (which states that broadcasters / providers can broadcast throughout the EU and only need to abide by the rules of one Member State rather than in each of the Member States that it broadcasts to) is further clarified to ensure there is no confusion as to which Member State's rules apply. These rules apply to both TV broadcasters and VOD service providers.
For example, the new rules clarify that a broadcaster / provider will be considered to operate in the Member State in which "a significant part of the workforce involved in the pursuit of the programme related audiovisual media service activity operates" (previously this was not limited to programme related activity but the workforce as a whole which could include sales or other back office staff). Additionally the new rules outline that broadcasters / providers must inform the national regulator of any changes that may affect its jurisdiction and Member States will be required to maintain an up to date list of the broadcasters / providers under their jurisdiction and indicate the criteria for accepting jurisdiction (which will be publicly available).
Broadcasters / providers currently operating in the UK and regulated by OFCOM will need to closely examine the revised AVMSD jurisdictional criteria in a post-Brexit scenario as it is not clear if such broadcasters / providers will be able to avail of these 'freedom of reception' rules in the absence of this being agreed as part of the Brexit negotiations.
(2) Financial Contributions
The new rules clarify that Member States may impose financial contributions (direct investments or levies payable to a fund) on broadcasters / providers who are targeting their national audiences from other Member States. This is a decision for each Member State to consider and there is no obligation to impose contributions.
The rules outline that any contribution should be proportionate and non-discriminatory and based on the revenues earned in the targeted Member State...