Comunicación Audiovisual

This post is also available in: Español

Last week, the Ministry of Economic Affairs and Digital Transformation submitted the General Audiovisual Media draft bill to public consultation for the second time. The draft bill transposes the 2018 reform of the Audiovisual Media Services Directive to Spanish law and is part of the “Spain, Europe’s Audiovisual Hub” side of the Recovery, Transformation and Resilience Plan, discussed previously in this blog.

This second public consultation comes after including the contributions from the previous consultation process, held in December 2020, discussed in this blog post. This time, the period to submit allegations opened on Tuesday, June 29, 2021 and will close on Monday, July 12, 2021.

We highlight the most significant changes in the new draft:

  • RTVE funding: final provision one of the new bill amends Act 8/2009, of August 28, on funding for Corporación de Radio y Televisión Española. A new obligation is created for on-demand video and video-exchange platforms, established in Spain or the European Union (if they offer services in Spain), consisting of  an annual contribution to RTVE’s budget.

    From 2009 to date, this was an obligation for private  and pay-TV.

    If this proposal goes through, on-demand video and video-exchange platforms, as well as linear pay-TV channels, will have to contribute 1.5% of their gross annual operating revenue. The contribution for free-to-air linear TV channels rises to 3%.

    The new draft also allows providers obliged to make the contribution to deduct 15% of the amounts invested in audiovisual co-productions with Corporación RTVE.

    Furthermore, the direct contribution of telecommunications operators for the part of their business not linked to audiovisual activity is removed, and new mechanisms are included for RTVE to monetize some forms of advertising.
  • Promoting European audiovisual works: another big change is increased mandatory investment percentages for European independent producers (meaning producers who, on their own initiative or having been commissioned, produce audiovisual content and make it available to audiovisual media service providers with which they have no commercial link).

    There are two mandatory individual investments (percentages are not added): (i) 3.5% (previously 0.9%) to be allocated to audiovisual works, in any format, by independent producers; and (ii) 2% (previously 1.8%) to be allocated to financing independent producer movies.
  • Child protection: the new draft proposes bringing back the watershed in free-to-air audiovisual media services and bans advertising alcohol directly to children, depicting minors drinking alcohol, suggesting that drinking alcohol contributes to social or sexual prowess, or linking drinking alcohol to success in personal, family, social, sporting or professional life. In any case, a “drink responsibly” message must be included.

    The time slot for advertising alcoholic beverages with ABV under 20% is maintained between 8:30 p.m. and 5:00 a.m. Beverages with ABV over 20% can only be advertised between 1:00 a.m. and 5:00 a.m., as with gambling, esotericism and parasciences.
  • Accessibility: the amendments to the draft bill include measures to progressively promote accessibility to audiovisual content such as increasing the percentage of accessible content that providers must guarantee and including new providers in this obligation (such as linear pay-TV and on-demand service providers).
  • Non-discrimination: to protect users from content that may infringe upon the dignity of women or promote discrimination against women, the draft envisages establishing codes of conduct.

    It also regulates the aid scheme through the Audiovisual Protection Fund of the Institute of Cinematography and Audiovisual Arts (ICAA) to encourage audiovisual production and direction by women and promoting and disseminating these works has been included among the measures of the sector’s Three-Year Stimulus Plan.
  • General user protection from certain audiovisual content: the changes to the wording of sections 87 (not present previously) and 88 (heavily amended) that previously targeted minors exclusively now focus on protecting users in general.

    In particular, the new section 87 gives an exhaustive list of the people that must protected by adopting measures, including: (i) minors, from content that could impair their physical, mental or moral development; and (ii) the general public, from content inciting violence, hatred or discrimination.

    Section 88 also extends the list of measures offered in the previous section 87 to meet those obligations. These notably involve including and implementing them in platforms’ terms and conditions; establishing transparent and easy-to-use mechanisms so users can notify providers of certain content and through which service providers can inform users of the progress regarding those notifications; establishing age verification systems preventing minors from accessing the most harmful content; and allowing users who have filed a complaint that has not been resolved properly to take the conflict to an alternative consumer dispute resolution procedure.
  • Other amendments: the draft includes certain nuances on the veracity of information, specifying that information must be distinguished from opinion. This duty concerns more the news and information programs than audiovisual media.

    The draft bill also envisages promoting co-regulation through cooperation agreements not only between the audiovisual authority and self-regulatory bodies but also with video exchange platforms or the organizations that represent them.

    Regarding licensing tenders, the two-month deadline for awarding licenses has been removed, and the consequences of the competent authority not having requested their assignment to the public audiovisual media service 6 and 18 months, respectively, after a radio-electric public domain reservation was planned are now regulated in detail.

    In terms of economic-financial control of the public audiovisual media service, external control bodies of autonomous regions (rather than the regions’ courts of auditors) are tasked with auditing the economic-financial management of public audiovisual media service providers under regional regulations.

We will follow the changes that may stem from this second public consultation closely and report any developments in this blog.

Authors: Nora Oyarzábal and Paula Conde

This post is also available in: Español

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paula.conde@cuatrecasas.com

Asociada

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nora.oyarzabal@cuatrecasas.com