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Brexit – the Audiovisual Media Services Directive

18/09/2018

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United Kingdom

As a current Member State of the European Union, the UK regulates audiovisual media services in line with the requirements of the AVMS Directive.

"Country of Origin"

The principle behind the AVMS Directive is that each Member State must impose certain minimum requirements on audiovisual media services regulated by that Member State.  The quid pro quo is that a service regulated in any Member State may then be transmitted for reception in other Member States without further regulation (commonly referred to as the "country of origin principle").

The UK is currently a significant hub for audiovisual services, being the home to a wide variety of audiovisual media services intended for reception both within the UK and elsewhere.

If the UK were to cease to be party to AVMS Directive, there are some benefits in that the UK would no longer have to be bound by the minimum requirements laid out in the AVMS Directive (but, having said that, current UK regulation currently leans towards being more, rather than less, restrictive than those minimum requirements and the UK would still be bound by the European Convention on Transfrontier Television, discussed below).  However, services transmitted from the UK would cease to have the benefit of being licensed in a qualifying "country of origin" which may affect the attractiveness of the UK as a broadcasting hub.  The UK is also a signatory to the European Convention on Transfrontier Television which should be unaffected by the UK leaving the EU.  This provides similar rules to the AVMS Directive in terms of freedom of reception in of linear services originating from a signatory state.  The DCMS has pointed out that this will have increased relevance in a "no deal" Brexit scenario.  However, not all EU member states have ratified the Convention and unlike an EU Directive, the way the Convention has been incorporated in local law will be relevant, meaning that anyone seeking to rely on it will need to seek local advice in each relevant jurisdiction.   This factor, coupled with the fact that ensuring States' compliance with the Convention would be a more cumbersome process, means that the Convention is not an entirely satisfactory substitute.

"European Works"

Another limb of the AVMS Directive requires European broadcasters to reserve a majority of their airtime for European works and European on-demand services to actively promote European works. In practical business terms this means that works that qualify as European can command a premium in economic terms.  If the UK were to leave the European Union, would UK-originated works continue to be European?  The answer is "yes" provided the UK continues to be a signatory of the European Convention on Transfrontier Television because the definition of a "European work" in the AVMS Directive includes works originating both from Member States and (subject to some conditions) those originating from non-Member States which are parties to the European Convention on Transfrontier Television.

Please follow the link to access the DCMS guidance on Broadcasting and video on demand if there’s no Brexit deal published on 13 September 2018.

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