EU policies contributing to cultural diversity in the audiovisual and online sectors
To trace the role of EU instruments that contribute to cultural diversity, this section covers EU legislation and action in the field of audiovisual and media policy, in addition to regulatory instruments in the field of electronic communications. This combined treatment is a reflection of the reliance on electronic communications infrastructure and services for imparting and receiving audiovisual and online media, even though there exists a division of labour between the regulation of transmission and the regulation of content.
The AVMS Directive
The AVMS Directive forms the centrepiece of EU regulation in the audiovisual sector today. It succeeds the 1989 TWF Directive, which already featured certain regulatory elements on cultural diversity. Thus, for quite some time now cultural diversity cannot be regarded as a mere by-product of the freedom to provide services in the internal market.
The AVMS Directive was conceived as a response to converging media and transformations in media production, formats and distribution, testifying to the fact that audiovisual and media policy is at a new crossroad. The very introduction of the notion of 'audiovisual media services' (Article 1(a)) marks this adjustment because it brings together well-known television formats with on-demand offers in edited content libraries.
Like its predecessor, the TWF Directive, the AVMS Directive establishes an internal market for audiovisual media services through a combination of the country of origin principle and positive harmonisation. The country of origin principle, also known in EU law as 'mutual recognition', entails that a provider of audiovisual media services is only subject to regulation in the member state of its establishment and that a receiving member state may not impose additional restrictions except where provided for by the Directive. This is accompanied with positive harmonisation, which ensures the transposition of a harmonised layer of regulation into member states' national laws pertaining to audiovisual media services. Audiovisual services originating in an EU member state must adhere, as a minimum, to national laws aligned to the AVMS Directive ('minimum harmonisation'), but member states may prescribe additional requirements, for example in the pursuit of cultural diversity.
The AVMS Directive applies indiscriminately to all audiovisual media services in the member states, including public service media, which is not in conflict with member states' autonomy to organise their system of public service broadcasting. However, it makes a distinction between linear services (traditional one-to-many broadcasting services) and on- demand services in terms of applicable rules, with a lighter set of rules applying to the second category ('graduated regulation').
The following section discusses several provisions in the AVMS Directive that aim to foster cultural diversity. More generally, it can be noted that the free circulation of audiovisual media services in the internal market, as facilitated by the Directive, has fostered transnational television in the EU. Obviously, it is hard to quantify the contribution of the Directive to cultural diversity, not least because certain audiovisual formats are expressly produced for audiences in the receiving member state. Generally speaking, the free circulation of audiovisual media services has been instrumental to permeate what were previously national domains, in particular contributing to the diversity of private television and audiovisual formats.