Brussels Wakes up to the Sound of Streaming

August 2, 2006

With an eye on the rapid growth of online streaming of moving pictures, new proposals from the European Commission may soon introduce a new layer of regulation to the Internet. The audiovisual media services (AVMS) directive is based upon an earlier directive (89/552/EEC) commonly known as the ‘television without frontiers’ (TWF) directive. So, what might the new proposals mean for web-based TV?

One of the primary goals of the original TWF directive was to create a single EU market for television services by prescribing minimum standards for television broadcasts within EU member states. The driving force behind the AVMS directive is the increasing availability of online services that have the potential to compete directly with traditional television broadcasters. In the Commission’s view the lighter regulatory touch at present applied to online providers distorts the regulatory playing field to the disadvantage of traditional broadcasters who must comply with the tougher, TWF-based rules.

As the Commission notes, the September 2005 Audiovisual Conference held in Liverpool concluded that: ‘… keeping the “Television Without Frontiers” Directive as it stands … would aggravate [the] increasingly unjustifiable differences in regulatory treatment between … various forms of distributing identical or similar media content … action at EU level [is] thus needed to enhance legal certainty … to ensure the best possible conditions for the competitiveness of the sector’.

The Commission believes that the new layer of regulation set out in the AVMS directive would benefit providers of on-demand audiovisual media services by creating legal certainty. Whether or not the additional regulatory obligations will benefit the small and growing providers that figure prominently in the online content sector, rather than the established broadcasting companies, is a matter that is hotly disputed.

What is an audiovisual media service?

The draft AVMS directive defines an audiovisual media service as: ‘a service… the principal purpose of which is the provision of moving images with or without sound, in order to inform, entertain or educate, to the general public by electronic communications networks…’. This would not, then, extend to services where the distribution of audiovisual content is incidental to the service (such as animated graphical elements, small advertising spots and information related to a product or non-audiovisual service). Also the directive does not extend to services provided on a non-economic basis (via, for example, private Web sites). Nevertheless, the definition is a very wide one.

The draft directive further distinguishes between ‘linear’ and ‘non-linear services’. The latter is a service where the user decides at what time a specific programme is transmitted by choosing from a list of content supplied by the media service provider. By default all other audiovisual media services will be deemed ‘linear’.

The AVMS directive would also introduce minimum regulation for all forms of audiovisual marketing (what it calls ‘audiovisual commercial communication’, services designed to promote, directly or indirectly, the goods, services or image of a person pursuing an economic activity) and extend the provisions regulating sponsorship and product placement that exist in the world of traditional television to cover any audiovisual media service.


Linear services would thus be subject to requirements similar to those imposed on existing television services by the TWF directive, although that regime would be simplified to some extent. Meanwhile, non-linear services would be subject to fewer requirements, which can be summarised as follows:

·         provision of information regarding the identity and location of the service provider;

·         protection of minors;

·         the prevention of incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation; and

·         the promotion, where practicable, of European audiovisual works.

The minimum requirements applicable to audiovisual commercial communications would require that they must be clearly identifiable as such – surreptitious commercial communications are prohibited – and that they must:

·         not use subliminal techniques;

·         not include discrimination on the grounds of race, sex or nationality;

·         not be offensive to religious or political beliefs;

·         not encourage behaviour prejudicial to health or safety, or encourage behaviour prejudicial to the protection of the environment;

·         not promote tobacco products;

·         not promote alcoholic beverages to minors nor encourage immoderate consumption; and

·         not cause moral or physical detriment to minors or exploit their inexperience or credulity.

The consequences of the new directive are potentially far-reaching and so it is no surprise that it has been met with widespread concern among online content providers. The draft must still pass through the legislative process in the EU Council of Ministers and, while dissenting views have been expressed (most notably by the UK government which has questioned the appropriateness of the regulatory approach), on the whole the directive appears to have some support from most EU governments.

Nonetheless, these are early days for the proposals. If passed the directive would not need to be implemented until 2010, so there will be some time for online providers to adapt. It is also likely that governments themselves will need time to work out how best to police the new regime. Meanwhile, the UK government is currently consulting on the issues raised. The deadline for responses is 8 September 2006 and details are available on the website of the Department for Culture, Media and Sport at

Alex Lundie is in the IT & Outsourcing Group at Lawrence Graham LLP. This article first appeared in SmartLaw, which is published by Lawrence Graham and which he edits: