Delany & Co series on London Technology Week continued…

Last night I had the pleasure of attending an International Institute of Communications seminar on the Audiovisual Media Services Directive at the rather grand room where Churchill gave his VE Day speech. It was not strictly part of London Technology Week – our blogging focus for this week – but maybe it should have been, as I’ll argue.

For the uninitiated, AVMS is the European Directive which sets out minimum standards across the EU for broadcast and on-demand video content in order to protect consumers (with rules on television advertising, the protection of minors and incitement to hatred) and to promote of certain types of content and services (European originated content, subtitling, audio description and so on).

The Directive is a mere 5 years old, but if you consider that when the current Directive was first being debated in Brussels YouTube had only just launched, compared with today when Facebook serves its users 4bn videos a day, then it’s ripe for review. When viewers are increasingly and seamlessly switching between linear content, on-demand content and other video content through platforms like Facebook, is a regulatory framework which treats all this content differently really future proof? Is there a need for a Directive at all?

At least, that should be the reason why it is being reviewed. The European Commission has indeed announced, as part of its Digital Single Market Strategy, that it will be making a proposal for a revised Directive early next year, with a consultation over the summer. However, as we heard at last night’s event, much of the pressure to review the Directive is not coming from consumers, confused by the patchwork of regulations protecting them from video content, or from the Commission, who have been conducting consultations on this very issue for years, but from the Member States, many of whom are demanding the Directive is reopened in order to deal with a technical mechanism at the heart of the Directive.

Without going into too much detail – and there is an awful lot of detail – the Country of Origin principle means that if a service is regulated in one EU member state it can automatically be distributed across the EU, even into countries where stricter rules apply. This creates an internal market. The UK has done rather well out of CoO, with almost half of the Ofcom’s 1100 licenses coming from non-domestic companies, many of whom have physically based themselves here in order to be licensed. Others countries, such as Sweden (who have long been upset that broadcasters can circumvent their stricter child protection rules by basing themselves in the UK and broadcasting back into Sweden) or France (unhappy that Netflix has managed to avoid their cultural content taxes by basing themselves in the Netherlands), have more reason to grumble. It is this issue which threatens to dominate the upcoming review.

But while this inter-Member State horse-trading takes place, there is a risk that the real point is missed: a seismic shift in the way that we consume video content is taking place, and will continue to take place. The purpose of the Directive is to protect consumers from harm, to promote European culture and to create a vibrant and economically successful European market. We may find that when it comes to video on online platforms, the Commission will attempt to deliver some of these policy goals through other means – such as the upcoming Platform Assessment and the e-Commerce Directive. But a revised AVMS Directive which fails to adequately respond to how we use our TVs, smartphones and tablets to consumer video, and instead gets caught up in political tit-for-tat, will be dead in the water.