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The Romanian audio-visual media market is nowadays in constant development, as both local and foreign players on such market are in fierce competition to offer as many options as possible regarding the media content provided. Although the positive effects of such competition cannot be overlooked, as it leads to a wide range of media content and an increased quality of the media services, it may also attract a series of negative side effects such as increasing unfair practices, breach of mandatory underage protection rules or run afoul of the consumer protection laws. Therefore, in order to avoid or at least to reduce such negative effects, supervising compliance with the applicable audio-visual media legislation is essential and cannot be overlooked. This supervision, although significantly reduced for cross border audio-visual services, may, however directly or indirectly affect the foreign broadcaster.
At a European level, provision of audio-visual media services is regulated by Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 (“AVMS Directive”). The direction governs the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning audio-visual media services. This Directive is committed to ensuring the transition from national markets to a common program production and distribution market in the audio-visual media services, which results naturally from the principle of free circulation of services within the European Single Market.
However, although the aforementioned Directive targets a common European market in the audio-visual media field, to ensure a higher level of protection for the recipients of audio-visual media services, the country of origin principle remains the core of the AVMS Directive. According to this principle, the originating member states must ensure compliance by broadcasters under their jurisdiction with the legal regulations applicable to the audio-visual media content provided both on the territory of that member state and abroad, as well as other European member states. Even though the originating member state has the main role in the aforementioned compliance process, recipient member states are also entitled to oversee the audio-visual content offered by foreign providers in line with the local legal provisions and even sanction, where the case may be, breaches of local legal provisions by a foreign provider offering cross border audio-visual services.
In Romania, the provision of audio-visual services is governed mainly by the Audiovisual Law no. 504/2002 (the “Audiovisual Law”) which implements the AVMS Directive and by the secondary applicable legislation. With regards to the incidence of the aforementioned legislation on the audio-visual media services offered by foreign providers, it is foremost necessary to establish whether such a foreign provider falls under the Romanian jurisdiction or not. In this respect, according to the Audiovisual Law, foreign media service providers shall fall within the scope of Romanian local legislation if one of the following criteria is fulfilled:
(i) audio-visual service provider’s headquarters are located in Romania and the editorial decisions on the relevant services are adopted in Romania;
(ii) the headquarters are located in Romania and a significant part of the workforce involved in providing the service is operating in Romania;
(iii) the editorial decisions on the services are adopted in Romania and a significant part of the workforce involved in providing the service is operating in Romania;
(iv) part of the workforce is operating both in Romania and in an EU member state and it cannot be determined in which state is the significant part of the workforce, the provider shall be considered under Romanian jurisdiction if the headquarters is located in Romania;
(v) if a significant part of the workforce operates neither in Romania or in an EU member state, the provider will fall under Romanian jurisdiction if the activity first began in Romania and the provider continues to have a stable and effective connection with the Romanian economy.
Where none of the above is fulfilled, then, the foreign audio-visual content provider will not be subjected to Romanian jurisdiction and consequently the Audiovisual Law will not generally apply to such provider. However, even in such cases, local regulations may not be overlooked by the foreign providers, at least in some essential aspects, since certain provisions will in fact apply to such providers irrespective of the protection granted by the country of origin principle, as we will further explain.
Romanian regulatory authority in the audio-visual field
The main role in controlling the audio-visual media content provided in Romania, both by local and by foreign providers, pertains to the National Audiovisual Council (“NAC”). The NAC is the only regulatory authority in Romania with regard to the media audio-visual services, being a public autonomous authority that aims to guarantee the public interests within the Romanian audio-visual field.
As mentioned from the outset, the legal regime applicable to foreign broadcasters is quite permissive, as retransmission in Romania of audio-visual programmes broadcasted by operators under the jurisdiction of EU Member States is free and does not require any prior approval. However, this does not mean that the foreign broadcasters will not be compelled to observe a set of minimal rules of conduct while broadcasting on the Romanian territory, rules that are generally accepted throughout the European Union.
Particular areas of control
As already mentioned above, when providing audio-visual content in Romania (i.e. the receiving state), foreign media service providers must also observe, apart from the applicable legislation in their country of origin, the mandatory legal requirements applicable in Romania. Such requirements refer inter alia to certain sensitive aspects, like underage protection or hate speech.
Protection of minors
This concept is paramount in the audio-visual media services provided to Romanian recipients and it is one of the main objectives targeted by the control activity performed by the NAC.
Applicable legislation converges in regulating and mainly forbidding the broadcasting of those programmes that may severely affect physical, mental or moral development of minors. Such programmes may be offered only if age gating measures are in place, in order for minors not to be able to hear or listen, normally, those programmes. Age gating may be established in accordance with a series of criteria, such as the intensity of violence; the drugs and alcohol use; minors’ presence and role in violence scenes; language quality and typology or a programme’s type or theme.
However, although legislation on minor’s protection with regard to the audio-visual content is quite strict as it relates to local broadcasters, the legislation becomes more permissive with regard to the content provided by broadcasters located in other member states of the European Union. For instance, Romanian media services providers cannot themselves broadcast adult only (18+) programmes, yet, such programmes may be included in the offer of local distributors by European broadcasters if adequate age gating systems are implemented, but only at subscriber’s request and within service packages that are not more advantageous than other packages not including such programmes.
This is another particularity that raises interest with respect to audio-visual content provided by foreign broadcasters to the Romanian public. According to the audio-visual law, broadcasting of any programs that contain any incitement to hatred on the grounds of race, religion, nationality, sex or sexual orientation is forbidden. Moreover, it is forbidden for the audio-visual services providers to broadcast within the audio-visual programmes of any anti-semitic or xenophobic manifestations or any discrimination on grounds of race, religion, nationality, sex, sexual orientation or ethnicity.
Breaching the aforementioned legal provisions may be sanctioned drastically, leading even to the temporary restriction of the free retransmission right of such audio-visual programmes originating in EU member states. The primary competence in applying sanctions to broadcasters breaching Romanian mandatory legal provisions pertains to the competent authorities in the EU Member State where said broadcasters operate. Such competent authorities will be notified to take action by the NAC.
However, in case the competent authority from the originating EU Member State does not apply any sanctions or the sanctions are not adequate, as per the Romanian NAC, the latter may further escalate the procedure, notifying the European Commission and the competent authority in the originating state of its intention to apply the sanctions it considers reasonable and grounded in the case at hand.
If all actions taken by NAC will not result in an amicable resolution with the service originating Member State or European Commission, the NAC may even directly suspend the free retransmission right of the foreign broadcaster. Although we are not currently aware of any such extreme suspension measures taken by NAC, we nevertheless note that the authorities in Romania have become lately more and more fervent in performing controls with respect to the observance by the foreign service providers of Romanian audio-visual legislation.
In conclusion, although the country of origin principle regulates the provision of audio-visual services abroad by operators located in EU Member States, any such foreign operators aiming to provide audio-visual content in Romania must also observe a series of mandatory regulation of the receiving state. As a natural consequence of the fact that any state must offer its citizens the same level of protection with respect to audio-visual content irrespective of the nationality of the operator offering the service, the controlling campaigns performed lately by NAC reveal an upward trend to compliance of all operators (including foreign ones) with local mandatory provisions, a trend that we predict will remain ascending in the following period.
Although currently the reach of NAC and of the Romanian audio-visual legislation to offshore service providers is rather limited, there are signals that audio-visual legislation will soon change in order to allow NAC a higher array of competencies and sanctions that will be available to it in relation to foreign broadcasters and especially VOD providers. This tendency is not new, proof of this direction is the 26 amendments brought to the relevant enactment since it was passed in 2002, out of which six amendments occurred only in the last year. Therefore, our recommendation will be that all potential new foreign providers that intend to enter the Romanian market should consider this trend and closely follow draft legislation that might enter into force, since such future amendments may have a significant impact on business decisions of such providers.
Iulian Popescu is an experienced practitioner in corporate and commercial matters, with a focus on public and private mergers and acquisitions, corporate finance, disposals, joint-ventures and the negotiation of various commercial contracts. He distinguished himself as an experienced and dynamic lawyer being involved in advising a significant portfolio of clients from sectors such as energy, constructions, pharmaceutical and telecom on all aspects of their businesses. Other areas of expertise include telecom, IT and media. Mr Popescu advised international and domestic telecom operators, media and technology companies on a full range of matters related to IT law – software and service distribution, interconnection and outsourcing agreements, online commerce or data protection. His diverse practice also focuses on shipping, aviation and transport, with particular emphasis on shipping and admiralty, where he has proven extensive experience in dealing with contentious and non-contentious matters related to multi-jurisdictional disputes and transactions.
Cross Border Reach of the Romanian Audio-Visual Legislation
Musat & Asociatii
The wide tendency of development within the Romanian audiovisual sector cannot be contested and it comes as a natural result of both globalisation and the increasingly high interest of the public in audio-visual content. This context determined the entry of various foreign audio-visual content providers, located particularly in EU Member States, to the Romanian market. Hence, in order to tackle the challenges involved by such a trend, transboundary applicability of the local audio-visual mandatory rules has become a main focus both for the Romanian legislator and foreign content providers.