EDF RESPONSE TO THE PUBLIC CONSULTATION
ON THE AUDIOVISUAL MEDIA SERVICES DIRECTIVE
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Table of contents
About EDF 3
Preliminary note 3
Ensuring a level playing field 4
Services to which the AVMSD applies 4
Geographical scope of the AVMSD 6
User protection and prohibition of hate speech and discrimination 8
General viewers' protection under the AVMSD 8
Strengthening media freedom and pluralism, access to information and accessibility to content for people with disabilities 9
Must Carry / Findability 9
Accessibility for people with disabilities 10
Captions 13
Sign language 14
Audio description and spoken subtitles 15
Public vs. Commercial channels 16
Quantitative targets 18
Standards and coordination 20
Monitoring and involvement of users 21
Quality standards 22
Related documents 23
Contact person at the EDF Secretariat 24
About EDF
The European Disability Forum (EDF) is the European umbrella organisation representing the interests of 80 million persons with disabilities in Europe. EDF mission is to ensure persons with disabilities full access to fundamental and human rights through their active involvement in policy development and implementation in Europe. EDF is a member of the Social Platform and works closely with the institutions of the European Union (EU), the Council of Europe and the United Nations.
Preliminary note
This present document contains EDF answers to the European Commission consultation “on Directive 2010/13/EU on audiovisual media services (AVMS)[1] A media framework for the 21st century”. The consultation[2] was launched from July to September following the Commission Work Programme for 2015, and in view of the revision of this Directive planned for 2016 in the Commission strategy for a Digital Single Market[3].
The consultation touched upon different aspects of the AVMS Directive, EDF in collaboration with its members and in particular with the EDF ICT expert group responded the questions most relevant for persons with disabilities, with a clear focus on the section on accessibility for persons with disabilities, but also covering other aspects that can make the media environment more inclusive and in line with the UN Convention on the Rights of Persons with Disabilities. Therefore, not all the questions are included in this document.
The different “preferred policy options” were given by the Commission’s consultation.
Some typos and expressions in the original text submitted have been corrected while preparing this document.
To have a general overview of the position of EDF regarding the AVMS Directive and related areas, please see “Related documents” at the end of this document.
Ensuring a level playing field
Services to which the AVMSD applies
Are the provisions on the services to which the Directive applies (television broadcasting and on-demand services) still relevant, effective and fair?
Relevant: Yes. Effective: No. Fair: No.
EDF welcomed the inclusion of on-demand services in the scope of the AVMS Directive as a complementary service to classic TV broadcasting, although some problems remain regarding on demand services in terms of accessibility for persons with disabilities. For instance, the latest report from the UK regulator ATVOD[4] found that of the 90 video on demand services they regulate, just 7% of these providers offer subtitles via mobile or tablet, and only 3.5% of Sky on demand content (the largest subscription service in the UK) has subtitles.
In an increasingly converged media environment, in which people access media content (sometimes even as preferred option) through other platforms, it is crucial that online video-sharing platforms and intermediaries have a clear legal framework to operate in, and pursue the same goals and values than the rest of the EU media ecosystem.
Are you aware of issues (e.g. related to consumer protection or competitive disadvantage) due to the fact that certain audiovisual services are not regulated by the AVMSD?
Yes. Many of these online platforms lack the appropriate access services for persons with disabilities, and in some cases they do not even enable the technical infrastructure to allow them, such as closed captions or a second audio track for audio description. For instance, the UK Sky platform provides access to several catch up services from the public service broadcasters but none of these have access services due to technical difficulties with the platform. This is despite the fact that the BBC has succeeded in getting subtitles to display on over 1.500 devices through which the iPlayer app is available.
Another good example is Netflix, which has almost 100% of its video on demand services with subtitles, and is increasingly offering audio description[5]. The reason behind these improvements is the U.S. 21st Century Communications and Video Accessibility Act (CVAA), as well as a lawsuit brought by the National Association of the Deaf (NAD) in Massachusetts after the trial court found that the Americans with Disabilities Act (the U.S. anti-discrimination legislation) also applied to Netflix services[6].
Thus, it is vital for the platforms and other services that provide access to on-demand content to have some legal responsibility regarding accessibility. They must be required to make sure that access services for persons with disabilities are technically possible in their platforms, as well as the content providers of those platforms should be aware of these technical solutions and provide the necessary accessibility features in their audiovisual content.
Preferred policy option:
Amending the AVMSD, namely by extending all or some of its provisions for instance to providers offering audiovisual content which does not qualify as "TV-like" or to providers hosting user-generated content.
EDF believes that all media providers, including online platforms, should be required to support access services for persons with disabilities. By allowing so, even users generating content in platforms such as YouTube will be able to make their videos accessible. Thus, whilst users should be exempted from the legal requirement, organisations with editorial responsibility should be required to progressively make their content accessible (see question 6.3).
Geographical scope of the AVMSD
Are the provisions on the geographical scope of the Directive still relevant, effective and fair?
Relevant: Yes. Effective: No. Fair: No.
In a globalised media world, operators outside the EU should meet the same requirements and standards of the EU legal framework if they target European audience, and EU regulators should be able to monitor and report their compliance.
Are you aware of issues (e.g. related to consumer protection problems or competitive disadvantage) caused by the current geographical scope of application of the AVMSD?
Yes. In Ireland, for instance, the regulator is unable to regulate the majority/largest Irish TV service provider, Sky, because it is not under Irish jurisdiction. This caused difficulties when attempting to leverage the "must carry" obligation from Article 31 of the Universal Service Directive to ensure that Sky would broadcast audio description provided by Irish broadcaster RTÉ.
Preferred policy option:
Extending the scope of application of the Directive to providers of audiovisual media services established outside the EU that are targeting EU audiences.
This could be done, for example, by requiring these providers to register or designate a representative in one Member State (for instance, the main target country). The rules of the Member State of registration or representation would apply.
In July 2012, EDF also answered a public consultation of the UK regulator Ofcom on proposals for access services on non-domestic channels[7]. EDF keeps that approach and considers that it is important to comply with the overall aim of the AVMS Directive (including the provision of access services) regardless of the origin of the broadcaster or media service provider. Under no circumstances EU regulation should be open for different interpretations. The requirements imposed on media services providers outside the EU must not be set below the requirements applying to domestic ones.
User protection and prohibition of hate speech and discrimination
General viewers' protection under the AVMSD
Is the overall level of protection afforded by the AVMSD still relevant, effective and fair?
Relevant: Yes. Effective: No opinion. Fair: No.
Social perception of persons with disabilities has been improving in the last decades. Nevertheless, a clear reference should be inserted in article 3.4.a.(i) and article 6 in order to explicitly prohibit discrimination and incitement to hatred based on disability. Cases of harassment to persons with disabilities still exist in Europe[8], and in some situations persons with disabilities, including those with intellectual and psychosocial disabilities or those living in institutions, are portrayed in a discriminatory way in the media[9]. For instance, persons with intellectual disabilities are often portrayed in a childish or offensive way or as people who cannot make their own decisions.
Therefore, the AVMS Directive must ensure that persons with disabilities are shown with dignity regardless of their impairment or the place where they live, and prevent certain misleading messages that put in danger their inclusion in the society[10]. Finally, it might also be important to review the complaint mechanisms to facilitate reporting violations, as well as to raise awareness of those.
Strengthening media freedom and pluralism, access to information and accessibility to content for people with disabilities
Must Carry / Findability
If you are a consumer, have you faced any problems in accessing, finding and enjoying TV and radio channels?
Electronic programme guides (EPGs) remain largely inaccessible for blind and visually impaired people to access. Most (though not quite all) TV receivers in the market do not provide EPGs with good colour contrast, displays that can be effectively enlarged for those with partial sight, and with spoken text-to-speech output for blind people. Another example can be found in the digital radio sets, which increasingly carry visual information on a screen without a good level of enhanced visual or text-to-speech features for people with visual impairments.
Furthermore, it is not always clear when and which access services are available according to the EPG, and access services are often not searchable. In Sweden, for instance, the broadcasters requests NGOs to inform their members on the availability of certain accessible content. Being good this regular communication between broadcasters and organisations representing persons with disabilities, EDF also believes that broadcasters should also spread this information by themselves, and make it easily “findable” to everybody.
Similarly, concerning other “public interest content”, if this is considered as such, it must be required to provide a high level of accessibility for persons with disabilities, especially in regards to emergency information.
Have you ever experienced problems regarding access to certain 'public interest' content?
Research by Action on Hearing Loss in 2015 found that 72% of respondents have paid for content that they haven’t been able to watch due to a lack of subtitles. Especially on on-demand services, consumers must be able to make an informed decision when purchasing them.
Preferred policy option:
Extending existing "must-carry" rules to on-demand services/and or further services currently not covered by the AVMSD.
By extending the must carry rules to incorporate on-demand services, and in particular the requirement to provide information about whether access services are available, would enable persons with disabilities to make informed decisions when purchasing content. Furthermore, more and more viewers opt for on demand services, including persons with disabilities when those services are accessible, therefore we consider that the must-carry obligations for linear content should also be extended to on demand services, and these should make sure an accessible way to access the “public interest content” which should have a high level of accessibility.
Accessibility for people with disabilities
Is the AVMSD effective in providing fair access of audiovisual content to people with a visual or hearing disability?
No. For EDF a fair access would be ensured when the AVMS Directive is fully aligned with the spirit and obligations of the UN Convention on the Rights of Persons with Disabilities (UN CRPD), which recognises accessibility as both a general principle (Article 3) and a standalone provision (Article 9). The UN CRPD is very clear on what State Parties should do to fulfil this obligation: they shall take appropriate measures to ensure to persons with disabilities access “on an equal basis with others”. This means that dedicated resources must be invested and progressive steps must be taken to live up to UN CRPD requirements. These steps must be deliberate, concrete and targeted as clearly as possible towards meeting the obligations.
Moreover, article 21 of the UNCRPD states that freedom of expression and opinion includes the “freedom to seek, receive and impart information and ideas” with appropriate and accessible information and communication technologies (ICTs). Accessibility of ICT is a basic requirement for persons with disabilities to exercise their freedom of expression and opinion. Finally, article 30 of the Convention provides that cultural and recreational activities should also be made accessible to persons with disabilities on an equal basis with others, and this includes provisions to “enjoy access to television programmes in accessible format” (Article 30.1(b)).
With the current article 7, the AVMS Directive is not ensuring an adequate level of accessibility to audiovisual content for persons with disabilities but just requiring Member States to “encourage” media service providers to do so. As a matter of fact, the current wording of this article only refers to people with visual and hearing disabilities, and not to “persons with disabilities” as such, disregarding the broad diversity of users that can benefit from accessible audiovisual media services (including those without a disability). Hence, EDF does not believe that this “soft” and “limited” requirement was an appropriate approach to ensure equal access to media content, and we therefore welcome the current public consultation on this matter.
Despite there have been some improvements in some countries thanks to this provision, a quick overview to the different levels of accessibility on media content across the EU proves that the interpretation of this article differs broadly among the different Member States. This has a direct impact on EU citizens in need of access services, and goes against the Commission shared goal of achieving a real Digital Single Market in which industry and consumers play and are protected under the same legal framework within the EU.
In the “Study on Assessing and Promoting E-Accessibility”[11], published by the Commission in November 2013, three areas were assed in the 27 Member States plus the U.S., Canada and Australia: web accessibility, telecommunications and accessibility on television. In the latter, one of the main conclusions of the study highlights that: “there is considerable variation across Member States in terms of the extent to which different types of accessibility measures are in place for broadcast programme content, as well as in the proportion of programming that is covered by these”. Therefore, to be fair, this provision should not be open for interpretation and should guarantee that EU citizens will have an adequate level of access services regardless of their place of residence without impeding industry innovation on this matter or further efforts or requirements by national authorities.