The Audiovisual Media Services Directive: A clash of interests?

Firstly, the interests of the two rapporteurs came under scrutiny; as Politico noted, Petra Kammerevert and Sabine Verheyen (representing S&D and EPP, respectively), have both declared monthly payments from Westdeutscher Rundfunk Köln, a German public broadcaster producing radio and television programmes. Given that the Commission report aims to bring ‘newer’ forms of media streaming on the same regulatory footing as television broadcasting, it is clear why this may be seen as a cause for concern, or as Politico quoted a Dutch MEP, Marietje Schaake, as saying; “I’m interested to know how my colleagues will avoid double hats.”

Secondly, the scope of the report is very broad; although the report has been described as “Netflix legislation”, the extension of the rules to any platform which uses video content as an “essential” part of the service lead one diplomat, quoted in the FT to comment that the legislation would “police any moving picture on any screen”.For companies previously used to self-regulation of content – such as Facebook and You-Tube, the rules will mean a legal obligation to “come up with measures to ferret out videos that contain hate speech, incitement to terrorism or simply harm the “moral development” of children.” (FT). Of course, this move can hardly have come as a surprise, with Facebook in particular having been accused of allowing extremists to propagate views, of facilitating the spread of fake news, and of not doing enough to prevent, for example, the live streaming of murders and suicides.

A third point of difficulty of the report is that it fell afoul of civil society in several aspects; CPME, the Comité Permanent des Médecins Européens, criticised the committee decision to remove the Commission proposals to limiting “marketing on foods high in fat, sugar and salt…to minors”, while the Netflix director of Public Policy criticised the new requirement that 30% of content would need to be European, describing the rate as “fantastically high”  and suggesting that it would lead to consumers in one market effectively subsidising content in another. For what it’s worth, the Commission’s report into the application of the current AVMS directive in 2012, found that although the provisions on protections of minors were “rarely breached”, advertising techniques targeting minors were “used frequently”.

Finally, the method by which the report was adopted led to sharp criticism from MEPs not from the S&D or EPP groups.  Despite opposition, primarily from Liberal MEP, the combined majority of the EPP and S&D groups was enough to see off a challenge brought, as mentioned above, under Rule 69C. Following a petition by 76MEPs, the rule forces a plenary vote on a matter already adopted by committee. In this case, a sufficient number of MEPs were found to trigger a vote, but not to overturn the committee’s decision, and thus the report will form the basis of the Parliament’s position in trilogies.  The passing of the report in plenary – albeit with 266 MEPs voting ‘No’ has led to accusations of a pact between the two largest groups, and indeed the appointment of two rapporteurs is in itself a highly unusual process.

The implications for lobbyists are unclear. That there has been a general view that tighter legislation preventing the broadcasting on social media of hate crimes, extremism etc is not in doubt – indeed a recent Economist leader opined that “one idea has gained momentum in both Europe and America—that internet firms are doing the jihadists’ work for them”. However, the quota for European content (and a requirement to advertise European works prominently) will cause discontent. How could the directive been better shaped, from the perspective of the tech lobby? Tech industry groups criticised the measure as vague and unworkable in parts. More attention will undoubtedly be paid to the committee structures- perhaps more vociferous objections to perceived conflicts of interest? Juncker, and others before him, have long called for a more political Europe, but it will be interesting to see if that desire could withstand US style deadlock via objection.