The Anti-Circumvention Procedure in the Audiovisual Media Services Directive

Recent challenges in the EU business sector also comprise the revision of the Audiovisual Media Services Directive (the new text in force since December 2018), the main media policy tool of the EU which establishes the legal framework for a convergent media landscape that comprises linear, non-linear audiovisual media services and, recently, also video-sharing platforms (VSPs) and user-generated content. One of the novelties in the revised text of the AVMSD is the new set of legal provisions enshrined in Art. 4 referring to the anti-circumvention procedure, a phenomenon the European media landscape has long been familiar with (i.e. broadcasters from another Member State circumventing the stricter rules of the target Member State). The need for a more transparent and efficient regulation originated in the practical difficulties of applying (pre-revision) Art. 4 by national regulating authorities (NRAs) as in many cases providers of audiovisual media services falling under another Member State’s jurisdiction refused to comply with their stricter rules or did not show any willingness to collaborate. The burden of proving the existence of circumvention or the evidence base to identify has proved to be a particularly difficult task for NRAs. The amended text of the AVMSD extends the power of the Member States to trigger the anti-circumvention procedure based on reasonable cause rather than the former requirement to prove the intention of circumvention by the provider. Also, the new set of provisions allows Member States to have circumvention reasonably established. Another novelty in the anti-circumvention procedure is the mandatory opinion that is to be requested by the European Commission from the European Regulators Group for Audiovisual Media Services(ERGA). The paper proposes to discuss the evolution of anti-circumvention measures in the two versions of the AVMSD as well as the projected effect on the phenomenon of circumvention of stricter rules on the new provisions.