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07 March 2019

Exercising control over other EU countries' TV shows

Background

All audiovisual media, including our favourite TV shows from across the EU, whether they are delivered as traditional broadcasts or as on-demand services, are governed by the AVMSD. Similarly to other goods and services, this type of media must follow rules that apply across the EU.

The purpose of the AVMSD, as set out by the European Commission is to move towards:

  • providing rules to shape technological development
  • creating a level playing field for emerging audiovisual media
  • preserving cultural diversity
  • protecting children and consumers
  • safeguarding media pluralism
  • combating racial and religious hatred
  • guaranteeing the independence of national media regulators

The AVMSD is part of the “Digital Single Market” strategy. If you are reading this in the UK you are probably already asking – how is this relevant in light of Brexit? In September 2018 the Department for Digital, Culture, Media & Sport published government guidance for media services providers in relation to broadcasting and on-demand services, in the event that there is ‘no-deal’ in Brexit negotiations.

Please see our review and analysis of the main points from that guidance here

However, given that broadcasters in the UK may also have – or may be seeking to obtain – relevant EU licences which could reduce the impact of a ‘no-deal’ Brexit on the delivery of their services outside of the UK, we think the Advocate General’s Opinion is still of interest.

Baltic Media Alliance C-622/17, ECJ

Baltic Media Alliance, which is a UK registered company, broadcasts a particular channel into Lithuania. The Radio and Television Commission of Lithuania imposed a restriction on operators broadcasting that channel by any means to Lithuanian consumers, whereby it could only be broadcast as part of a paid-for package.

Enshrined in Article 56 of the Treaty on the Functioning of the European Union is the freedom to provide services within the EU. One of the questions considered in the Advocate General’s Opinion was whether or not this measure adopted in Lithuania to restrict certain transmissions from another EU Member State was compatible with this fundamental freedom.

Opinion

While the AVMSD requires Member States not to restrict retransmissions of broadcasts from other Member States for reasons such as incitement to hatred, it does not go so far as to prevent Lithuania from adopting a measure such as requiring the broadcast of a particular channel to be available only to consumers who subscribe to an appropriate package.

Advocate General Saugmandsgaard Øe considered that a measure such as that taken in Lithuania, on public interest grounds, did not impede the retransmission or reception of the relevant channel as it could still be legally broadcast and viewed by consumers who subscribed to the relevant package.

It was concluded that the measure adopted was indeed compatible with the freedom to provide services within the EU under Article 56 of the Treaty on the Functioning of the European Union and it was justified and proportionate. Lithuania was legitimately seeking to protect its consumers from propaganda which could incite hatred and adopted a reasonable measure to do so.

An interesting side point which arose from the Opinion was the observation that in this instance, the UK registered company was in fact broadcasting predominantly Russian language programmes solely into Lithuania. Could it be that countries outside the EU could take advantage of the freedom of broadcasting and distribution of content within the EU by simply retransmitting their programmes through an EU-based company?

Commentary

It must be noted that the Judges of the European Court of Justice are not bound by the Advocate General’s Opinion. It is an independent proposal of a legal solution to a case which is under the European Court of Justice’s review and which the Judges may consider in their ongoing deliberations. Judgment has not yet been given in this case, so watch this space for a further update.


This article was written by Tanya Wilkie. For more information, please contact Tanya on +44 (0)20 7203 5058 or at tanya.wilkie@crsblaw.com.

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