EU Regulatory Update: AVMSD - Post Revision is Pre-Revision vs. the European digital single market of multi-channel transaction ...

... & Others

Prof. Dr. Mark D. Cole Director for Academic Affairs at the Institute of European Media Law (EMR) / Professor for Media and Telecommunication Law at the University of Luxembourg ERA MCMS Congress 2018, 20 June 2018, Seville

2 ERA MCMS Congress 2018, Seville Institute of European Media Law | www.emr-sb.de

GDPR and e-Privacy

§  GDPR although continuation of DPDirective in many ways significant overhaul, especially concerning enforcement

§  Alignment of e-Privacy Directive with conditions and at same time was planned

§  Commission proposal Jan 2017, EP position Oct 2017 (narrow majority), pending MS General Approach à opening of trilogue negotiations any time soon unlikely, potential delay for at least a year after GDPR applicability •  Serious possibility of failure to agree

à uncertainty beyond new elections 2019

3 ERA MCMS Congress 2018, Seville Institute of European Media Law | www.emr-sb.de

e-Privacy-Proposal

§  Also Regulation (à directly applicable and same in all MS)

§  Question of scope (type of data, type of providers)

§  ‘cookie consent‘ and potential problem with browser setting solution (impact on third party cookies) à main reason for prolonged discussion now

§  Not clear what type of audience measurements possible, what impact it will have on OBA, on IoT (M2M-communication) and who will be responsible

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e-Privacy – Where are we now?

§  Overlap or exclusion of old rules? •  Problem: national implementation measures stay in place in

principle, but no laws allowed that contradict GDPR (later rules and primarily applicable as Regulation)

•  But: scope exception in GDPR concerning e-Privacy Rules (Dir. 2002/58/EC) that should remain untouched

•  Therefore potentially clash especially in cases where MS law did not fully transpose e-Privacy-Directive (cf. Discussion in Germany)

•  And especially relevant where certain processing is not covered by special rules of e-Privacy-Directive although in connection with provision of communication services

§  Positioning of DPAs will be decisive •  Cf. First statement by EDPB (= European Data Protection Board,

former Art. 29 WP, but now with decision-making powers)

5 ERA MCMS Congress 2018, Seville Institute of European Media Law | www.emr-sb.de

AVMSD – a reminder

§  The very original 1989 Television without Frontiers Directive

§  Significantly amended 1997 incl. Teleshopping §  Transition to “Audiovisual Media Services“ 2007 §  Directive

•  à 28 differing Member State transpositions in national law – but: major elements harmonized in detailed manner

•  à in addition 28 differing ways of implementation by NRAs

§  2016 Proposal by Commission, trilogue negotiations completed end of April, formal text available:

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AVMSD – the synopsis

§  Available at: www.emr-sb.de

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AVMSD – a quick overview

§  Basic principles upheld (e.g. Country of Origin) §  Extension of scope to VSPs (Video Sharing Platforms)

•  with graduated approach TV – On Demand – VSP

§  Protection of minors-rules newly formulated and including provisions about personal data

§  Co-Regulation encouraged (codes of conduct), Role of ERGA, procedural aspects such as circumvention procedure facilitated

§  Some other aspects such as •  Quotas/levies, potentially more extensive transparency

requirements (ownership), widening of ‘incitement to hatred‘-provision (e.g. terrorism), accessibility

8 ERA MCMS Congress 2018, Seville Institute of European Media Law | www.emr-sb.de

AVMSD – what about TS and CommComm?

§  Art. 7b: potentially of interest if MS decides to implement measures against “overlays“

§  Some clarifications (isolated TS spots in sports admissible, but: not TS during children‘s programmes)

§  Facilitating TS spots by introduction of prime time windows and calculation of 20% in relation to time slots, not clock hour (6-18 and 18-00.00); cross-promotion of own services excluded from calculation as well as black seconds

§  Exemption of TS channels remains as well as TS windows (min. length 15 mins.)

9 ERA MCMS Congress 2018, Seville Institute of European Media Law | www.emr-sb.de

...& Others: E-Commerce

§  E-commerce Directive 2000/31/EC remains untouched, esp. liability regime

§  But: Commission very active in introducing measures (mainly in form of non-binding Communications so far) directed at online platforms •  Hate speech (Removing Illegal Content) •  Fake news (Disinformation Online) •  P2B-Regulation proposal just out

§  But also connected: Cross-Border Parcel DeliveryRegulation; Consumer protection rules; Digital Content/Services Contracts

10 ERA MCMS Congress 2018, Seville Institute of European Media Law | www.emr-sb.de

...& Others: Telco/IP

§  ECC (Electronic Communications Code) – agreement just reached •  Main point: extension to OTT services •  Joining all telco rules into one ruleset but including many of the

existing provisions such as from Universal Services Directive

§  IP •  Enforcement Directive (2004/48/EC) not included in reform

proposals, but evaluation of provisions and communication on how to improve use (combatting counterfeited products selling)

•  Substantive provisions such as potential necessity of including ‘upload filters‘ identifying copyright violations by UGC depending on outcome of negotiations on reform of Copyright Directive (2001/29/EC)

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The DSM train/schedule...

§  Available at: http://www.europarl.europa.eu/legislative-train/theme-connected-digital-single-market/dashboard/05-2018

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