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Broadcasting and video on-demand if there’s no Brexit deal

17/10/19

How the rules for broadcasters and providers of video on-demand services would change if there’s no Brexit deal.

After Brexit the Audiovisual Media Services Directive (AVMSD) and the country of origin principle will no longer apply to services under UK jurisdiction broadcast into the EU.

However, the European Convention on Transfrontier Television (ECTT) framework will still apply.

This means that the 20 EU countries that have signed up to ECTT must allow freedom of reception to services under UK jurisdiction. How this right is given effect in each country may depend on national law and how the ECTT has been implemented locally.

The UK must also permit freedom of reception for services that originate from all countries that are party to the ECTT.

Read the section About AVMSD and ECTT for more information about this legislation.

If your service is not available in the EU you do not need to take any action. Your Ofcom licence will still be valid after the UK leaves the EU.

UK services available in the EU

If your service is available in the EU you may need 2 types of licences:

  • an Ofcom licence for services receivable in the UK and in other ECTT countries (this includes the 20 EU countries that have signed and ratified the ECTT)
  • licences covering services receivable in EU countries that have not signed up to the ECTT

The EU’s ‘Notice to Stakeholders’ for audiovisual media services has confirmed that works originating in the UK will continue to be classed as European Works after exit.

EU services available in the UK

There are 2 types of services coming to the UK from the EU. They are:

  • services from countries that have signed and ratified the ECTT – no action is needed for these
  • services from one of the 7 EU countries that have not signed and ratified the ECTT

Services that are from countries have not signed and ratified for ECTT will need a licence from Ofcom to continue to be received in the UK. Alternatively, the broadcaster could change the way it operates so it falls within the jurisdiction of another ECTT country.

The UK is committed to continued licence-free reception for TG4, RTÉ1 and RTÉ2 to reflect the commitments in the Good Friday agreement.

The ECTT does not have the same enforcement mechanisms as the AVMSD. There is a standing committee to resolve disputes, but this has not met since 2010. Article 26 of the ECTT also has provision for arbitration between ECTT parties.

What you need to do now

Check your licence is valid

Find out whether your current licence will continue to be accepted in the EU countries where the service is available. It is your responsibility to ensure that you have a valid licence or authorisation

If your service is only available in one of the 20 EU countries that are also ECTT parties, freedom of reception should be allowed. Seek local legal advice to check how national law deals with ECTT.

Ofcom licences should still be recognised but the process may depend on national law. See also the list of media regulators in the EU.

If your service is available in one or more of the 7 non-ECTT countries (Belgium, Denmark, Greece, Ireland, Luxembourg, The Netherlands and Sweden) ensure that the service is correctly licensed on exit day by complying with AVMSD jurisdiction.

Get local legal advice about your video on-demand services

The ECTT does not provide for freedom of reception for video on-demand services. This means you need to comply with AVMSD jurisdiction rules. The regulation and authorisation of video on-demand service is determined locally. Seek local legal advice on the status of your service.

If you take no action, you’re likely to be viewed as a third-country broadcaster broadcasting into the EU. Under AVMSD, this would mean that EU countries are free to impose further conditions on transmitting services into their territories through national laws, although subject to the provisions of the ECTT itself.

Qualifying for AVMSD jurisdiction

After Brexit, you can still qualify for AVMSD jurisdiction in an EU state even if you keep your head office in the UK. Under AVMSD, if a provider’s editorial decisions are taken in an EU country, the provider will fall under the jurisdiction of that country, if a significant part of its workforce is located there.

How to tell if your organisation is established within an EU country under AVMSD

A service provider is considered established within an EU country (Article 2 (3) AVMSD) when its head office and editorial decisions for a service are taken within an EU country. If the head office is in one location but editorial decisions are taken in another EU country, establishment is based on the location of the office where a significant part of the workforce is located.

If a significant part of the workforce is in both locations, establishment is based on the location of the head office. For example, if a service has its head office in one EU country but editorial decisions are taken in another EU country, and a significant part of the workforce is in both EU countries, the country with the head office will have jurisdiction.

Seek local legal advice on the establishment requirements in the EU country concerned. If you do not have a significant workforce within an EU country, the technical criteria may still apply, as set out in Article 2 (4) AVMSD:

  • if a service is provided via a satellite uplink in an EU country then jurisdiction would fall to that country
  • if there is more than one uplink, jurisdiction will fall to the EU country where the first uplink was established
  • if the uplink is in the UK, the jurisdiction will fall to the EU country which operates the relevant satellite capacity

In most cases, satellite capacity would either be Luxembourg or France, as the majority of EU broadcasting satellites are operated by these 2 countries. These countries have different notification systems. Contact the local regulator to check the local regulatory requirements.

About AVMSD and ECTT

The Audiovisual Media Services Directive (AVMSD) (Directive 2010/13/EU) sets out a country of origin principle, where providers of broadcasting channels and video on-demand services based in one country are only subject to one set of rules and regulations from a ‘country of origin’.

In the UK a broadcasting licence issued by Ofcom is valid in the whole of the EU, so providers only need to comply with Ofcom rules, regardless of where the licensed service is received within the EU.

The UK, along with 20 other EU countries, is a signatory to the Council of Europe’s European Convention on Transfrontier Television (ECTT] which came into force in 1993. EU countries that have signed and ratified the ECTT are Austria, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, Finland, France, Germany, Hungary, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Romania, Slovakia, Slovenia and Spain.

ECTT guarantees freedom of reception between parties and sets out that they must not restrict the retransmission of compliant programmes within their territories.

However, ECTT sets out that EU countries should apply the AVMSD not ECTT between each other. This means that even the EU countries who have signed ECTT observe only AVMSD rules inside the single market.

 

Originally written and published by DCMS on 17th October 2019.

Written by DTG Team
 

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