101 UK Brexit Notes

Connemara Programme October 16 2018 pg. 62 Business: Broadcasting and Media Purpose The purpose of this notice is to set out the legal status for audio-visual services that media services providers may wish to consider in the unlikely event that the UK leaves the EU in March 2019 with no agreement in place. Before 29 March 2019 The Audio-visual Media Services Directive (AVMSD) (Directive 2010/13/EU) sets out a country of origin principle, according to which audio-visual media service providers are only subject to the jurisdiction of one EU country. Providers of broadcasting channels and of video on demand services based in one country are only subject to one set of rules and regulation from this ‘country of origin’. A broadcasting licence issued by Ofcom, the UK communications regulator, is valid in the whole of the EU. The provider therefore need only comply with Ofcom rules, regardless of where the licensed service is received within the EU. A provider requires a licence from the country which has jurisdiction over it. Under the AVMSD there is a specific hierarchy of rules for determining jurisdiction (Article 2): these include rules based on the establishment of a media service provider (“establishment criteria”) and technical criteria for providers broadcasting via a satellite (“technical criteria”), which apply where the establishment criteria are not met. The establishment criteria set out a series of rules which determine when a service provider is considered established within a EU country (Article 2 (3) of AVMSD) so that that country has jurisdiction over it. In the first instance a provider is taken to be established where the head office and editorial decisions for a service are taken. 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 multiple 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 the UK, and a significant part of the workforce is in multiple EU countries, the country with the head office will have jurisdiction. If the establishment criteria do not apply, the technical criteria may apply (Article 2(4) of AVMSD). According to the technical criteria a service provider will be deemed to be within the jurisdiction of an EU country if:  it uses a satellite uplink situated in that EU country, or  it uses satellite capacity relating to that EU country (this is a subsidiary criterion and will apply only if the jurisdiction of an EU country cannot be established under the “satellite uplink” criterion). If the service is uplinked from more than one EU country, the broadcaster will fall under the jurisdiction of the EU country where the first established uplink is located. However, if the oldest uplink relates to a satellite without a footprint focused on Europe, while the more recent one relates to a satellite with a footprint which is focused on Europe, the more recent uplink will determine jurisdiction. AVMSD is in the process of being revised and is in the later stages of the legislative process for doing so. A new version is expected to be adopted by December 2018 and implemented by EU countries by August 2020. Alongside AVMSD the UK, along with 20 other EU countries, is a signatory to the Council of Europe Convention on Transfrontier Television (ECTT), which entered 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. The Convention guarantees freedom of reception between the parties and sets out that parties to the Convention must not restrict the retransmission of compliant programmes within their territories. However, ECTT provides that EU countries will continue to apply the AVMSD in their mutual relations and not ECTT. This means that even the EU countries who have signed ECTT observe only AVMSD rules inside the single market. European Works is a content quota system for broadcasters and on demand services designed to promote domestic European production and preserve European cultural identity. It forms part of both ECTT and AVMSD. European Works classification requires a programme to originate in either an EU country or a non-EU European country which is party to the ECTT. The UK’s position as a party to the ECTT will not be affected by the UK’s withdrawal from the EU. Further, the EU’s ‘Notice to Stakeholders’ for audio-visual media services has confirmed works originating in the UK will continue to be classed as European Works after exit.