As part of its Digital Single Market Strategy and following extensive consultation in 2015, in May 2016 the European Commission adopted new legislative amendments to the Audiovisual Media Services Directive (“AVMSD“). The proposals seek to modernise the Directive to reflect “market, consumption and technological changes”, largely arising from convergence between television and internet services and the increase in on-demand content consumption.

After a lengthy legislative process, the Council of the European Union formally adopted the AVMSD on 6 November 2018. The AVMSD was then published in the Official Journal of the European Union and entered into force on 19 December 2018. Member States now have 21 months to transpose it into national legislation (September 2020).

The draft Withdrawal Agreement agreed with EU negotiators in November 2018 includes a transition period through to 31 December 2020, during which EU law will continue to apply in and to the UK. If the draft Withdrawal Agreement is finalised and approved before the UK leaves the EU, the UK government will still be required to implement the new AVMSD into national legislation within the same timeframe (i.e. prior to the end of the Brexit transition period).

The Government’s “no-deal Brexit” technical note on broadcasting and video-on-demand confirms that if the UK leaves the EU with no deal (i.e. no withdrawal agreement and no transition period), the AVMSD will no longer apply to the UK. The Government would therefore have autonomy to determine the extent to which it implements the revised AVMSD into national law. Although, in doing so, the Government is likely to “focus on ensuring the ability to trade as freely as possible with the EU and supporting the continued growth of the UK’s broadcasting sector” as mentioned in its Brexit White Paper earlier in 2017.

The most significant change under the revised directive aims to create a level playing field between all audiovisual media service providers, to protect viewers (regardless of the service they provide and the platform they use). This expands the scope of the previous directive from broadcasters and video-on-demand providers, to also include video-sharing platforms (such as Netflix and Youtube), a well as live streaming on video-sharing platforms. This may well prove to be a steep learning curve for those service providers that will fall under the ambit of the directive for the first time, and who should be considering how best to implement the legislative requirements into any existing regulatory compliance programmes.

Click here for our full article on the AVMSD.

Claire Wiseman
Claire Wiseman
Senior Associate and Professional Support Lawyer, Digital TMT and Sourcing, London
+44 20 7466 2267