Converged Media: same content, different laws?

Connected smart TVThe European Audiovisual Observatory has published a new study on connected TVs and its legal challenges.

The purchase of smart TVs is taking off in Europe. However Europe’s lawmakers are already getting to grips with the legal challenges of this new technology which may one day be as present in our homes as today’s television sets.

Smart TV’s are capable of broadcasting both linear and non linear content, as so-called convergent devices. The regulation in parallel of these two types of content by the same legal instrument(s) is increasingly asking for attention, not only by EU policy makers but also by their national counterparts. The European Audiovisual Observatory, part of the Council of Europe in Strasbourg, has just published a new IRIS plus report on these legal challenges entitled: Converged Media: Same Content, Different Laws?

The Lead Article, authored by Alexander Scheuer of the Saarbrücken-based European Institute for Media Law (EMR) focuses concretely on the challenges set by connected TV for the EU legislative framework. After a useful overview of the definition and functions of today’s connected TV technology, Scheuer looks at the practical implications of connected TV for content providers and consumers. He underlines the multiplicity of ways in which content can be provided and therefore consumed on connected television – from link lists to catch-up TV websites, broadcasters’ video libraries through apps specialised in certain types of content to social networking sites devoted to individual programmes. In short, the classical notion of a TV Channel is history in the world of connected TV.

Given this myriad of different possibilities the lead article then looks at the regulatory approaches in EU law. Scheuer concentrates specifically on the fields of advertising, content services and the protection of minors in order to ask whether the current EU legislative framework is adequate to cover today’s convergent devices, and whether the rules are the same for linear and non-linear content. He explains that the main legal instrument for the regulation of audiovisual services – the AVMSD (Audiovisual Media Services Directive) – regarding the field of advertising “itself creates significant differences in the levels of regulation, with less stringent rules for non-linear media services.” Scheuer also points out that, whereas the practice of television regulation in Europe is a long-standing one, “providers of on-demand (audiovisual) services come under less scrutiny, partly because, in some countries, even though there is no licence obligation, no instruments are in place or used to cover such providers.”

Moving on to look at the regulation of technology, the article points out that four different instruments have a bearing on connected television: the AVMSD for media content, the E-Commerce Directive for transmission services, the Telecoms Package for electronic communication services and networks and, lastly, the Directive on radio equipment and telecommunications terminal equipment for end devices.

Scheuer concludes that “the debate on convergent devices […] has intensified in the last five years…”. He states that while there is no particular pressure to reform the already complex structure of legal instruments with a bearing on connected television, he predicts “a fascinating continuation of the debate, which is expected to intensify after the European Parliament elections and the appointment of a new European Commission in 2014.”

The Related Reporting section of this report provides a snapshot of legal developments in Germany, France, the UK and Italy with regards to the issue of media convergence. A recent German court judgement on the limits to which PSBs can offer on-demand content is analysed as well as two new French reports on connected television just published. The UK has also just released a report on media convergence. In Italy, the protection of minors is behind current reflections on the adoption of rules concerning the technical aspects of VoD services.

The final Zoom section of this new report concentrates on one of the most written-about aspects of converged media at the current time: Public Service Media in a connected environment by the Observatory’s new Executive Director, Susanne Nikoltchev. The article examines current Council of Europe and EU legal texts which provide the overarching framework to regulate PSM. Nikoltchev then goes on to look at specific issues under national law such as the use of public value tests, competition law aspects and the making available of PSB archives via their own on-demand services. She concludes that national regulatory authorities will figure prominently in the process of establishing the PSM remit: “As the case may be, they might have to multi-task as regulators, monitors, supervisors, reformers and sometimes cheerleaders. And they will have to grow alongside the technology that will continue to dictate the speed and the direction of all developments”.