The Modernisation of the European Television Without Frontiers Directive : Unnecessary Regulation and the Introduction of Internet Governance

This paper presents a critical analysis of the proposal for the amended Television without Frontiers Directive (the draft Audiovisual Media Services Directive). The following is argued in the paper: a) The revision lacks consistency from a regulatory point of view by using the artificial distinction between ‘linear’ and ‘non-linear’ services. Although based on jurisprudence from the European Court of Justice, there is no need to convert this jurisprudence into regulation. b) The directive introduces a wide range of new rules which are applicable to audiovisual services on the internet. It’s not less regulation, but more. c) The proposed harmonisation of the content regulation seriously conflicts with standard jurisprudence of the European Court of Human Rights. In its jurisprudence, the Court gives a substantial margin of appreciation to member states for the regulation of content (limiting the possibilities for fully-fledged harmonisation). d) The introduction of new regulation for non-linear services cannot be based on the lack of a transfrontier market. It’s an attempt to regulate the internet (aka ‘nonlinear’ services) and will have an adverse effect on the creation of a common market. The paper is still a draft. Certain topics raised require additional research and are not discussed in full detail. The notes and references also need to be supplemented further