Advertising – Association of European Radios

World Radio Day 2023 – Celebrating “Radio and Peace” on 13 February 2023

Francesca Fabbri — Mon, 13 Feb 2023 14:52:42 +0000

The 12^th edition of UNESCO’s World Radio Day celebrates “Radio and Peace” and how independent radio provides the foundation for democracy and good governance by gathering evidence about what is happening, informing citizens about it in impartial and fact-based terms, explaining what is at stake and brokering dialogue among different groups in society.

Stefan Möller, President, Association of European Radio (AER) says:

“ Radio makes a critical contribution to media pluralism and diversity.

Radio provides significant social and public value, it keeps us up-to-date and well informed with uninterrupted news and information, it alerts us about emergencies and natural disasters

With their news services, radio make a crucial contribution to safeguarding democratic discourse. In the event of a disaster or an emergency situation, radio is the first – and often the only remaining – medium for informing the population.

Radio is our trusted guide, it creates awareness about social issues, it helps us understand complex public problems and ongoing conflicts, it plays a critical role in fostering dialogue among communities.

Radio plays a very crucial role in our lives.

In uncertain times like these it is of the greatest importance for radio to continue to ‘carry the crown’ of being the most trusted medium and continue to be the enabler for democratic societies thriving for peace”.

More about World Radio Day here.

About Us

The Association of European Radios (AER) is the Europe-wide trade body for commercial radio, representing the interests of companies operating over 5,000 commercial radio stations to the EU Institutions. The AER’s mission is to promote the development of commercially-funded radio broadcasting in Europe, by advocating for a fair and sustainable economic regulatory framework for radio, which will, in turn, allow commercial radio to continue to deliver significant public value and, beyond that, support media plurality, improve social cohesion and promote European culture.

AER statement on Ukraine

Francesca Fabbri — Mon, 28 Feb 2022 14:34:57 +0000

The conflict in Ukraine has put journalists and media workers on the front line, as they seek to monitor and report back to their newsrooms on what is happening on the ground.

AER believes that free and independent reporting from radio and other media outlets is an essential service at this time, providing trusted and accurate information on a difficult and fast-moving situation. Therefore it is vital that the freedom and security of journalists and news teams is prioritised so that they can continue to safely practice their job and deliver reliable, accurate and unbiased news worldwide.

Stefan Möller, AER President and Matt Payton, AER Secretary General

Joint Industry Statement by European Media Associations on the DSA trialogue negotiations

Francesca Fabbri — Mon, 14 Feb 2022 17:30:48 +0000

Download the joint statement here and the annex here.

BRUSSELS, 14 February 2022

As the Digital Services Act (DSA) reaches its final phase, Europe’s media sector reaches out to the negotiating teams with the aim of ensuring that our activities can not only survive, but thrive online. As online platforms have become important gateways to access and consume professional media content, their behaviour has serious impacts on media organizations‘ online activities. This is why we now draw the attention of EU decision-makers to business-critical points of the DSA text, in anticipation of the next inter-institutional negotiations. Below you will find our main policy asks, followed by technical comments in Annex.

Protection of editorial content (Article 12, Recital 38)

Social networks, search engines and video-sharing platforms have become important gateways for citizens to access editorial media content (press, audiovisual, radio) online. Many of these players, however, restrict the dissemination of lawful media content, based on unilaterally imposed terms and conditions (T&Cs). Platforms’ decisions can create serious blockages to the editorial reach of the media organizations we represent. More so, it defies existing EU and national media rules which already establish content standards and dissemination criteria.

The European Parliament tried to alleviate these concerns by inserting a minimum standard in Article 12 paragraph 1 of the DSA proposal. This would make intermediary service providers’ T&C bound by fundamental rights, including media freedom, and rules applicable to the media in the Union. We call on all policymakers to:

uphold this principle as a redline for the trilogues
enshrine this general principle in the final DSA text
provide further guidance in the accompanying Recital 38 on how intermediary service providers should implement this requirement.

Media brand attribution (Article 22)

The DSA should ensure that the identity (e.g. logos/branding) of media organizations as well as all other business users is clearly visible alongside the content, goods and services offered on third-party platforms. When consumers access media content through social networks, news aggregators, or search engines, they must be able to easily identify who bears the editorial responsibility.

We therefore call on policymakers to support Article 22 paragraph 3b new of the European Parliament’s report which introduces a brand attribution obligation. To make the provision meaningful to media organizations, its scope should, however, be extended so that not only online marketplaces, but all other kinds of platforms that play a significant role for the access to content, are covered.

Interplay between DSA and sector-specific rules and Member States’ prerogative (Article 1, Recitals 9 and 10)

Rules on copyright and specific rules for audiovisual media safeguard and promote our diverse and pluralistic European culture. Such rules also guarantee that the media can play its role as a fourth pillar of a functioning democracy. Neither the Council nor the European Parliament have so far introduced the necessary clarifications concerning the relationship between the DSA and sector-specific rules, such as the DSM Copyright Directive and the AVMSD. Co-legislators also fall behind an important principle of the eCommerce Directive (Article 1.6) leaving room to Member States to adopt measures to promote cultural and linguistic diversity as well as media pluralism online.

Hence, we call on policymakers to ensure that the DSA’s horizontal rules do not undermine the specific rules and regulatory achievements provided by the lex specialis or the prerogative of Member States to regulate cultural issues in Article 1 and Recitals 9 and 10.

Liability for search engines (Article 4)

Search engines play a crucial role in how information is being distributed and consumed online. We therefore find it beyond comprehension why EU co-legislators would grant an outdated liability exemption to search enginges without submitting them to notice and action obligations. The new safe-harbour proposed by the Council in Article 4 of its General Approach, which assimilates search engines to ‘caching services’, removes their obligation to act upon notices. In fact, it removes all incentives for them to contribute to the fight against illegal content. The negative impact would be significant, clearly undermining the stated goal of the DSA to create a safer, more accountable online environment.

This remains ever more incomprehensible since the European Commission in its impact assessment debates the fact that search engines belong to neither category, which is a situation that certainly worked in their favour. We therefore call on policy makers to not take a huge step backwards by mischaracterizing the role of search engines as being equal to ‘caching services’ and to delete their inclusion from Article 4 of the Council’s General Approach. Instead, policy-makers should reassess the legal qualification of search engines.

Targeted advertising (Articles 13a and 24)

Personalized advertising remains an indispensable source of revenue for the media sector. It is a way, in particular for commercial media, to keep online content open and accessible to all. We have taken note of the concerns in relation to data processing for advertising purposes expressed, in particular, by Members of the European Parliament during the DSA discussions. While we recognise the European Parliament’s efforts to address dark patterns and to create a safer internet and protect minors, we are concerned that Article 13a and particularly sub-paragraphs 1 (b) and (e) will adversely affect the capacity of digital offerings, including those of the media to obtain user consent and monetise their content legitimately through advertising. These provisions as well as Article 24 (1a new) go further than the current GDPR data protection provisions, leading to a conflict of rules and enforcement challenges. It is our view that the DSA is not the appropriate piece of legislation to regulate data protection, due to the risk of pre-empting the ongoing negotiations on the e-Privacy Regulation and the margin for legal uncertainty.

Furthermore, we know it is significantly easier for digital gatekeepers to obtain consent from users. Instead of targeting the largest platforms, these requirements will put media at an even greater competitive disadvantage and go against the initial objectives of the DSA. Restricting mass data collection must focus on those who cause the most harm, namely the digital gatekeepers via their data supremacy. Article 6 (1) (aa) in the adopted European Parliament’s report on the Digital Markets Act addresses this issue by focusing on gatekeepers and applying consent requirements consistent with the GDPR, as well as a prohibition on the processing of minors’ data.

Therefore, we call on the co-legislators to maintain the wording proposed by the European Commission and agreed in Council, that both focus advertising requirements on very large online platforms, and caution against over descriptive rules going beyond the provisions of the GDPR.

Know-Your-Business-Customer

In today’s economy, businesses should not be able to operate without accurately identifying themselves. This applies equally to the offline and to the online world, which is why the e-Commerce Directive 2000/31/EC (ECD) introduced an obligation on businesses to identify themselves on their websites (Article 5). Unfortunately, businesses that have the intention of making a profit out of illegal content have so far escaped this obligation without suffering consequences.

The Digital Services Act is an opportunity for the European co-legislators to address this shortcoming of the ECD. Many Member States have indicated their support for Italy and Spain’s Joint Statement, calling for Know-Your-Business-Customer (KYBC) provisions to be addressed during the interinstitutional negotiations. The European Parliament has also demonstrated majority support for a broad KYBC provision (see also corrected RCV on amendment 514). We urge policy makers to ensure that all intermediary service providers – not just online marketplaces – know who their business customers really are.

Country-of-Origin principle

The Country Of Origin principle (COO) is one of the core principles of the e-Commerce Directive (Article 3) and for twenty years, it has been an effective as well as necessary prerequisite for the cross-border distribution of press and media content. It ensures that providers of media content can provide their services cross-border in any EU Member State and, in fact, is a safeguard against censorship and legal uncertainty. It is important to continue to ensure a high level of protection for freedom of expression and intellectual property. As such, the COO as provided by the ECD must be maintained in the DSA, rather than allowing a Member State to remove content lawfully published in another Member State on the grounds of its stricter laws.

ACT – Association of Commercial Television and Video on Demand

AER – Association of European Radios

EBU – European Broadcasting Union

EGTA – Association of Television and Radio Sales Houses

EMMA – European Magazine Media Association

ENPA – European Newspaper Publishers’ Association

EPC – European Publishers Council

NME – News Media Europe

For more information, please contact the AER office in Brussels at aer(Replace this parenthesis with the @ sign)aereurope.org.

Download the joint statement here and the annex here.

About Us

Celebrating “Radio and Trust” on WORLD RADIO DAY

Francesca Fabbri — Sun, 13 Feb 2022 08:34:42 +0000

The 11^th edition of UNESCO’s World Radio Day celebrates on February 13^th, more than a century of radio and how radio continues to be one of the most trusted and consumed media worldwide. The 2022 theme is “Radio and Trust”.

Radio has always been easily accessible anywhere to everyone, has been innovating and adapting with changing technologies and consumer trends. Radio is nowadays accessible through computers, smartphones, smart speakers and in-car infotainment systems, so people can listen to their favourite station whenever, wherever and however they want.

And most importantly, people turn to radio because they trust it.

Radio is the trusted friend people take with them on their daily commutes, who keeps them company and improves their mood, helps them feel less isolated and more connected to their community.

Radio is a source of trusted information. In an era of fake news and unverified stories on social media, listeners value and trust the curated and high-quality content that radio provides, news that are required to be accurate, trustworthy and reliable.

It is no surprise that, according to the annual Eurobarometer survey from the European Commission, radio has been scoring very high in the level of trust of European citizens, confirmed being the most trusted medium in Europe compared to social media and the internet for more than a decade now.

The global pandemic has made it more important than ever for people all over the globe to get information they trust and to find ways to connect with people: radio has continued to play a crucial role throughout these uncertain times, providing a much needed and sought out trusted companionship and reliable information for millions of listeners worldwide.

Stefan Möller, President of AER says: “Today, on World Radio Day we celebrate how unique radio is and how vital is to have a source of information that you trust, and a friend you can turn to for reassurance but also entertainment, like your favourite radio station. For us at AER, it is extremely important to continue to work with the EU institutions to make sure radio is well protected so it continues to function effectively and continues to provide the widespread societal benefits we all know, especially during these times of crisis and increasing disinformation.”

To learn more on how great radio is, please see here.

European Parliament’s DMA vote paves the way for a future-forward media sector

Francesca Fabbri — Wed, 15 Dec 2021 18:30:15 +0000

Download the PDF here

Brussels, 15 December 2021

A broad coalition from the European media sector, including public and commercial broadcasters, radios and the press, applauds the European Parliament’s vote on the Digital Markets Act (“DMA”).

The agreement reached by the European Parliament reflects the political vision required to preserve a diverse, vivid and innovative media landscape. In particular, we welcome the Parliament’s commitment to tackle unfair conduct by gatekeepers that harms contestability and fairness in digital markets, and its resolve to provide practical solutions to real world business issues faced by the media sector.

Maintaining tight quantitative thresholds, introducing voice assistants, web browsers and connected TVs into the list of core platform services, future-proofs the regulation, which we wholeheartedly welcome.

On obligations, we welcome the amendments on self-preferencing practices (Article 6.1(d)), audience measurement (Article 6.1.(g)) and fair and non-discriminatory access (Article 6.1(k)). All these changes are preconditions to ensure the effectiveness of the DMA proposal.

However, we call on the co-legislators to fix loopholes which could undermine effective competition in the supply of media content to European audiences:

Access to data: article 11(2) should be amended to ensure that gatekeepers cannot circumvent the obligation to provide business users with access to non-personal and personal data.
Combination of personal data: article 5(a) should be further strengthened to address gatekeepers’ data power stemming from network effects.
Tying and bundling: article 5(f) should cover additional unfair practices through the notion of “use” of a service.
Preferential treatment of selected third parties: Article 6.I(d) should also cover situations where gatekeepers give preferential treatment to selected third parties.

We encourage the Council to look towards the European Parliament’s position to support the long-term sustainability of media services that rely on gatekeepers to reach digital audiences. This will in turn foster the ability of European consumers and citizens to access services that support the pluralistic flow of information and creative diversity in Europe.

Grégoire Polad, Director General of ACT, said: “The European Parliament showed real leadership and vision when tackling the conduct of gatekeepers. We hope the Council will look in the direction of the European Parliament when it comes to crucial aspects such as self-preferencing, to ensure that the DMA is an enforceable, robust instrument that will bring genuine change in the market”.

Angela Mills Wade, Executive Director of EPC, said: “Fairness and non-discrimination should become the guiding principles of the DMA. We welcome the European Parliament’s position on this issue and encourage Member States to remain open to the European Parliament’s position on this aspect”.

The trilogue phase will be decisive to determine whether the DMA can fulfil its promise to ensure contestability and fairness in digital markets. We rely on lawmakers to provide a sound and effective framework, both on the designation of the gatekeepers and on the obligations imposed on them.

Association of Commercial Television and VoD Services in Europe

Association of European Radios (AER)

European Publishers Council (EPC)

European Broadcasting Union (EBU)

News Media Europe

Association of television and radio sales houses (EGTA)

EMMA/ENPA

For more information, please contact the AER office in Brussels at aer(Replace this parenthesis with the @ sign)aereurope.org.

Download the PDF here

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The media sector calls for remaining loopholes in the Digital Markets Act to be addressed during trilogue

Francesca Fabbri — Thu, 25 Nov 2021 10:58:57 +0000

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BRUSSELS, 25 NOVEMBER 2021.

The European media sector, through the voice of public and commercial broadcasters, radios and the press, acknowledges the General Approach adopted by the Council of the European Union on the Digital Markets Act (“DMA”). This step forward reflects the political consensus across Member States that swift action is required to rebalance the digital competitive environment in order to preserve a diverse, vivid and innovative media landscape.

We welcome the Council’s commitment to shorten the designation process timeline and also commend recent improvements made in the Council’s General Approach, such as the clarification that voice assistants are covered under the definition of online intermediation services, although we believe that voice assistants, given their impact on the intermediation market, should be enshrined in the list of core platform services in Article 2.

However, given the remaining and substantial loopholes of the General Approach, we believe that there is still margin for important improvements. The trilogue negotiations represent a crucial opportunity to increase the robustness of the obligations (Articles 5&6) and enforcement mechanisms; the amendments set forth by the European Parliament provide a sound basis for discussion.

We draw the co-legislators’ particular attention to reflect upon and fix key loopholes which could undermine effective competition in the supply of media content to European audiences:

Combination of personal data: reinforcing article 5(a) to address gatekeepers’ data power stemming from network effects.
Access to data: strengthening articles 6(1)i and 11 to ensure that gatekeepers cannot circumvent the obligation to provide business users with access to non-personal and personal data.
Self-preferencing: ensuring that the prohibition of self-preferencing also applies to practices other than ranking, as proposed by the European Parliament and covers the preferential treatment of third parties chosen by the gatekeeper.
Tying and bundling beefing up article 5(f) to cover additional unfair practices through the notion of “use” of a service.
Fair and non-discriminatory conditions of access: extending article 6(1)k to all core platform services, as proposed by the European Parliament.
Audience measurement: obliging gatekeepers to provide granular, continuous, and real-time information, therefore enabling a meaningful verification of the ad inventory.

Failing to close these loopholes will impact the long-term sustainability of media services that rely on Gatekeepers to reach digital audiences and, thereby, the ability of European consumers and citizens to access services that support the flow of information and creative diversity in Europe.

Wouter Gekiere, Head of the European Broadcasting Union’s Brussels Office, said: “The recent Google Shopping judgement is further justification that action against self-preferencing by Gatekeepers is a crucial tool to promote and protect fair competition. The media sector however believes that, to be forward-looking, the DMA should also address self-preferencing practices that go beyond ranking”.

A spokesperson of EMMA & ENPA, EPC and NME, said: “Fairness and non-discrimination should become the guiding principles of the DMA regulations. All loopholes that would provide the Gatekeepers with opportunities to disrespect or avoid these principles should be tackled by the co-legislators”.

The trilogue phase will therefore be decisive to decide whether the DMA fulfils its promise to ensure contestability and fairness in digital markets. We rely on lawmakers to provide for a sound and time effective framework, both on the designation of the Gatekeepers and on the obligations imposed on them.

Association of Commercial Television and VoD Services in Europe

Association of European Radios (AER)

European Publishers Council (EPC)

European Broadcasting Union (EBU)

News Media Europe

Association of television and radio sales houses (EGTA)

EMMA/ENPA

For more information, please contact the AER office in Brussels at aer(Replace this parenthesis with the @ sign)aereurope.org.

Download the PDF here

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Broadcasters welcome political advertising initiative; encourage co-legislators to address political advertising online and deliver on transparency

Francesca Fabbri — Thu, 11 Nov 2021 08:00:32 +0000

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BRUSSELS, 25 NOVEMBER.

Public and Private broadcasters welcome the European Commission’s legislative proposal on political advertising and call on bold transparency measures and a proper framing of the micro-targeting of political advertising online through the proposed regulation on the transparency and targeting of political advertising.

Broadcasters play a major part in informing the public, offering diverse opinions and content. As such, they are subject to heavy regulatory requirements at national and European level, including national laws and rules on political advertising. These requirements may define strict periods when political advertising is allowed during elections, disclosure obligations related to electoral campaigns for political parties or candidates, or simply bans on political and issue-based advertising. These rules are essential to national democratic processes and must not be undermined. On the contrary, the effectiveness of these obligations could be improved by creating similar rules online.

Indeed, political advertising is barely regulated in the online environment. Yet, targeted and sponsored political content, including issue-based ads, is rampant online with very little oversight, transparency and accountability. This regulatory asymmetry is not only harmful to the democratic process, but it also contributes to growing imbalance between online intermediaries and media services.

The political advertising initiative, which the undersigned organisations will examine in more detail, appears to be an opportunity to tackle problematic online advertising practices without undermining the sustainability of Europe’s media. In line with the objectives of the DSA, this new legislative proposal has the potential to improve the transparency of online advertising. It also has the scope to address problematic targeting and micro-targeting practices in the context of political advertising, while avoiding devastating effects on the European media landscape and on media freedom and pluralism in the EU. We therefore call on the co-legislators to seize this opportunity and tackle problematic online advertising practices through the political advertising initiative.

ACT – AER – EGTA – EBU

For more information, please contact the AER office in Brussels at aer(Replace this parenthesis with the @ sign)aereurope.org.

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AER joins EDRA and EBU in calling the co-legislators to include Voice Assistants in the Digital Markets Act

Francesca Fabbri — Thu, 07 Oct 2021 09:50:42 +0000

AER, the European Digital Radio Alliance (EDRA) and the European Broadcasting Union (EBU) came together to co-sign a letter highlighting and addressing the growing dominance of digital voice assistant platforms: they are gatekeepers for radio services and they are going to have more prominent role in the future.

The three organisations urge the co-legislators to clarify the text and make sure the proposed Digital Markets Act regulation includes voice assistants in the scope of this new regulatory framework so to prevent any anti-competitive behaviors from the platforms.

Read the full joint letter here.

Joint statement to EU institutions:

Public service and private radio broadcasters call on EU lawmakers to include voice assistants in the Digital Markets Act.

Europe’s private and public service radio broadcasters have come together through the undersigned organisations – EDRA, EBU and AER – to request you to address the growing dominance of digital voice assistant platforms. Urgent intervention is required to prevent these platforms from being able to adopt anti-competitive behaviours; this could include charging for access, self-preferencing, restricting access to data, using data from third party services to develop their own services, and inserting publicity without permission.

We welcome the Digital Markets Act regulation (‘DMA’) as an essential step in restoring and promoting a fair relationship between gatekeepers and radio companies. Nonetheless, as it currently stands, it may fail to take advantage of this unique opportunity to provide appropriate regulatory safeguards for the online audio/radio environment, at a crucial moment for this emerging market. We, therefore, call on the EU legislators to clarify the text, by explicitly mentioning that the proposed Digital Markets Act regulation also applies to voice assistants.

Traditionally associated with smart speakers, voice assistants have now been adopted in environments where physical keyboards are absent, e.g. on smartphones or in the car via their integration into infotainment operating systems.

The growth in connected devices and the rapid growth in usage of voice assistants has started to change the way audio services are discovered and accessed. The European radio and audio sector is fully embracing the opportunities that digital technologies have to offer, having provided some of the first services available via voice assistants.

Access to broadcasters’ content via voice assistants is an important paradigm shift that will radically change our relationship with listeners. Historically, radio broadcasters have enjoyed a secure position in the audio value chain, where licences for broadcast have been granted by regulators, and broadcasters have owned or leased their own transmitters to reach their audiences, without any interference by third parties. With the adoption of voice assistants in the home, the car, on smartphones and tablets, access to audio and radio content will become increasingly intermediated by voice assistant providers, which will impact content transmission and users’ freedom of choice. Such new intermediation is particularly challenging, as the main tech industry players benefit today from significant market power in the voice assistant market as well as in adjacent markets, which enables them to impose conditions regarding the content accessible on their devices, and thereby impacting listeners.

The case for regulating voice assistants under the DMA is not just economic. It is also crucial to safeguard media pluralism and the provision of trusted information. Radio delivers a broad range of public value to listeners, including trusted local and national news bulletins that reach hundreds of millions of listeners daily across Europe, at a time when fake news is rife on social media networks. Clarifying the application of the DMA to the audio/radio sector is an important step in protecting the most trusted source1 of news and information and supporting media pluralism in Europe.

While the European Commission may have intended to include voice assistants in its DMA proposal2, the current text does not make this explicit enough. Later, the European Commission itself raised again concerns about the significant market power and gatekeeper role of voice assistant providers in the first findings of its investigation into the Consumer Internet of Things3. We note that the significant market power of voice assistants is often amplified in online environments where they are integrated, for instance, in in-car infotainment systems where typically listeners are only able to access their digital radio and audio apps via a single voice assistant platform, thereby strengthening the latter’s gatekeeper position with respect to radio content providers. Typically, they provide users with only one result, instead of a list of results, thus making the choice for the user and directly influencing the selection. For instance, in response to a request for news, a voice assistant will only provide one specific source.

Therefore, it is essential that the DMA covers this type of platform, either by clarifying the definition of “online intermediary services” or including them as a new “core platform service”.

Furthermore, considering the small size of the digital audio market, dominated by a limited number of gatekeepers enjoying significant market power, we welcome the possibility for the Commission to designate a provider of a core platform service as a gatekeeper, where such a provider fulfils the qualitative criteria of Article 3(1) without meeting all the thresholds of Article 3(2) through the flexibility offered by Article 3(6).

In her statement following the publication of the first findings of the sector inquiry on the Consumer Internet of Things4, Vice-President Margrethe Vestager stressed that a number of the practices reported in the inquiry feature in the “Do’s and Don’ts” of the Commission’s proposal for the Digital Markets Act, and that “the sector inquiry will certainly contribute to the debate on the scope of the Digital Markets Act”. We believe the Digital Markets Act regulation is an essential step in restoring and promoting a fair relationship between gatekeepers and radio services. This balance is first and foremost essential for EU citizens who trust such services every day. This is a unique opportunity to promote a fair and open online audio environment, at a crucial moment for this emerging market.

We would therefore urge the co-legislators to update the DMA along these lines to protect the radio industry, not just for economic reasons, but because of the widespread societal benefits – the most trusted news source (as demonstrated during the COVID crisis), connecting people to their communities, and providing companionship. If such modifications are not included, the DMA will have failed to provide the radio and audio market with the protection it requires to function effectively.

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European media call on policymakers to further strengthen the Digital Services Act proposal and to ensure that citizens can continue to engage online with the media they most trust and value

Francesca Fabbri — Tue, 22 Jun 2021 14:47:39 +0000

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Brussels, 22 June 2021

Europe’s media sector welcomes the Commission’s proposal on the Digital Services Act (DSA) and supports its aim of creating a safer, fairer, and more transparent online environment, based on European values and the protection of fundamental rights.

Global online platforms have become an important gateway for citizens to access and consume reliable information and diverse content of public and commercial broadcasters and press publishers. Many of these players, however, restrict the dissemination of lawful media content, and their monetisation, based on their unilaterally imposed terms and conditions. Their recommender systems have a profound impact on the information and facts that users can access, the way they are presented to, and on how opinions are shaped. At the same time, online piracy continues to deprive Europe’s creative and cultural ecosystems of revenues for reinvestment in production and creating jobs.

It is therefore time for Europe to impose more responsibilities on global online platforms – which have long ceased to be mere providers of technological infrastructure – and make them more accountable by reflecting their market power, daily mass reach and influence on societies. It is time to restore trust in the online environment and provide a safe space where media can fulfil its broader democratic function.

For these reasons, we advocate for targeted amendments to the DSA proposal, in no particular order of importance, to ensure that the DSA reflects the significant influence of global online platforms on access to content and information, on opinion-making and on the creative ecosystem. Certain smaller platforms operated by media organisations, such as discussion fora, should, however, not be overburdened by due diligence obligations. Particularly, we call on European policymakers to:

Ensure that the principle of “what is illegal offline should be illegal online” becomes an enforceable reality. Certain targeted amendments should be introduced on the notice and action mechanism (Art. 14), i.e. making the condition of the validity of notices less stringent, more future proof and less costly, for example by deleting the obligation to provide the exact URL when notifying illegal content. Moreover, the status of trusted flaggers (Art. 19) should be extended to rightsholders, which have demonstrated expertise and competence for the purpose of detecting, identifying and notifying copyright infringements.

Protect the editorial freedom of media organisations by introducing safeguards as to prohibit global online platforms from interfering with the content media organisation make available on their services, based on the platforms’ terms and conditions, moderation policies or community guidelines. To promote trust in media and press online, global online platforms should refrain from taking any editorial decision, in the sense of removing, suspending, disabling access to or otherwise interfering with editorial content and services lawfully uploaded by a media organisation. Global online platforms with no editorial responsibility should not take any editorial decisions or exercise unjustified scrutiny over content that is produced by editorially responsible and regulated actors. If a dispute arises, it is up to courts or national regulators to decide and instruct the platform operators to act accordingly. Such an obligation should, however, be without prejudice to the liability of global online platforms for illegal uploads of our members’ content by third parties.

Ensure proper brand attribution of media content. When audiences access media content through social networks, news aggregators, or search engines, they need to be able to easily identify who bears the editorial responsibility over it. Failure by platform operators to attribute content to its source or incorrect attribution of logos and branding deprives audiences of an essential element to judge the information they see and hear. The DSA should thus ensure that the identity of media organisations (e.g. logos/branding) is clearly visible alongside the content and services they provide.

Further enhance transparency in the online environment by extending the know-your-business-customer obligation (Art. 22). Only a broad obligation on platform operators to verify the identity of their business users will truly contribute to combatting fraudulent activities online and the dissemination of illegal content, such as copyright infringements.

Further enhance the transparency of platform operators’ recommender systems, as they impact the way media content can be found online. In particular, they should inform (business) users and regulators about the functionality of their recommender systems and the main criteria for aggregating, selecting and presenting content (Art. 29).

Oblige platform operators to set clear, transparent, non-discriminatory, unambiguous and predictable terms and conditions (Art. 12). The obligation should however clearly limit the possibility of platform operators to remove or delist content that is under the editorial responsibility of a media organisation. It is equally important to ensure that changes in the platform operators’ terms and conditions are duly communicated in advance, in order to limit the potential damages this could have on business users, such as media organisations and the content they made available, in terms of visibility, ranking, user traffic, advertising, etc.

Clarify the interplay with sector-specific laws and the Member States’ competence to regulate. Sector-specific rules best reflect the dual nature of the media, being cultural as well as economic goods. In particular, the Audiovisual Media Services Directive and national rules taken in accordance with it should not be affected by the DSA. Moreover, it should be specified that the DSA does not affect Member States’ competence to regulate issues related to cultural diversity and media pluralism, also in relation to intermediary service providers.

Ensure proper enforcement of the DSA rules. We agree with maintaining the country of origin principle, which is key for the free movement of digital services in Europe. With a view to ensuring swift and effective enforcement of the DSA throughout the EU, cross-border cooperation between the Digital Services Coordinators should be strengthened. As regards the European Board for Digital Services, we would consider useful if stakeholders could engage and raise concerns in cross-border cases. We also urge policymakers to make sure that independent national regulatory authorities for the media, which hold a great expertise in the regulation of certain online services with a view to promoting freedom of expression, are properly involved in the enforcement of the DSA, within the scope of their mandate.

Ensure the sustainability of the press and media. Online advertising is a particularly important source of revenue for media organisations. Funding their operations through advertising should not be undermined by the DSA. This could have a detrimental effect to media freedom and pluralism in the EU. Balanced legislation on advertising that safeguards both citizens’ fundamental rights and equal competitive opportunities in the online environment is crucially needed. The DSA should therefore tackle the data practices and monopolisation of advertising revenues by global online platforms, while ensuring the sustainability of the press and media.

Disclaimer: This document presents the common position of multiple organisations representing several media industries. Individual entities/media sectors may support additional or different demands that are not reflected here.

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About Us

AER position on the Digital Markets Act

Francesca Fabbri — Wed, 26 May 2021 06:03:15 +0000

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Background

Radio content reaches 85% of European citizens each week with a mix of music, news, entertainment and talk that brings great economic, societal and cultural value to a wide variety of Europeans on a local and national level

To remain relevant to its listeners, commercial radio has innovated, developed its content and presence in an extremely competitive digital environment. In addition to linear radio broadcasting (FM, AM and DAB), radio listeners can now access the radio content of their choice, and benefit from a personalised listening experience, via voice enabled connected listening platforms, including smart speakers, tablets, and in-car infotainment systems.

Identified Challenges

The quid pro quo of commercial radio innovating and adapting to changing consumer behaviour is that radio is increasingly dependent on large online platforms’ “core platform services^[1]. Voice enabled connected listening platforms, also known as digital voice assistant platforms, act as gateways to reach listeners, effectively putting both radio operators and their listeners at the mercy of the online platforms’ own commercial interests. The challenges and risks that the growing dominance of these online platforms pose to commercial radio are significant, and must be adequately addressed via the proposed Digital Markets Act (DMA).

Indeed, Europe’s commercial radio sector has been calling upon the Commission to ensure that none of the risks associated with gatekeepers arises, so that listeners can continue to discover and enjoy unfettered access, free at the point of use, to radio over the long term.

The DMA proposal, with its much-needed ex-ante regulatory approach, represents a unique opportunity for EU lawmakers to tackle the growing challenges that digital platforms with gatekeeper status pose to the radio sector, at a time when these platforms are increasingly taking control of large parts of the digital audio ecosystem.

Subject to certain clarifications, the obligations and prohibitions set out in articles 5 and 6 of the DMA proposal should be able to help preserve the contestability of the digital audio ecosystem.

Recommendations

The following clarifications are required from a radio standpoint:

Clarify that digital voice assistant platforms enjoying gatekeeper status constitute core platform services;

Ensure the findability of commercial radio services and content by listeners online, including via digital voice assistant platforms;

Prevent digital voice assistant platforms enjoying gatekeeper status from self-preferencing their own radio-like services, at the expense of the commercial radio services that they distribute;

Prevent digital voice assistant platforms enjoying gatekeeper status from being allowed to limit or restrict access to third party radio services (for example, by invoking any internal community guidelines), or charge for carriage.

Prevent digital voice assistant platforms enjoying gatekeeper status from inserting sponsorship or advertising around third party content services without the express consent of the radio operator.

In Detail

1. Scope

It is essential that the scope of the regulation remains tightly focused, as proposed by the Commission^[2]. We believe that any broadening of the scope would only serve those who oppose the proposed regulation or disagree with the opportunity of introducing it. Hence, the DMA should aim at regulating a small number of large digital platforms that are unavoidable gateways between digital service providers and their large user base. Afterall, it is the conduct of a few large digital platforms that threatens the contestability and fairness of digital markets and the DMA should focus on such platforms.

The AER calls on the EU institutions to clarify that digital voice assistant platforms enjoying gatekeeper status constitute core platform services which fall within the scope of the DMA. As the role and importance of DVAs will likely increase in the future, we consider that it is necessary to advocate for an explicit reference.

2. Discoverability & self-preferencing

The DMA Proposal must ensure the findability of commercial radio’s content and services by listeners online, including via digital voice assistant platforms. It is paramount that radio content can be easily found and discoverable by users of platforms. This includes ensuring that users are accurately and impartially directed to the content they have requested via the platform’s electronic programme guide (EPG) or voice activated ranking services (instead of being directed to the platforms’ own, competing, services). Moreover, platforms should provide transparent information on the algorithms which underpin the discoverability of the content they carry.

Related to this, the DMA must prevent gatekeeper’s capacity to self-preference their own services, including any radio-like services of selected third parties, at the expense of the commercial radio services that they distribute. This risk is increased by the fact that DVAs will typically generate a single response to a voice request made by a user, unlike the hundreds of results that a user could find on a typical search page.

Whilst the DMA Proposal includes provisions that seek to prevent self-preferencing practices by core platform service providers (Article 6(1)(d) and Recitals 48 and 49), AER calls for an explicit reference to DVAs to be incorporated into in Recitals 48 and 49, to clarify that such rules should also be applicable to DVAs

3. Access & Non-discrimination

The DMA Proposal must prevent gatekeepers from restricting listeners’ access to commercial radio’s content and services online. This includes clarifying that platforms enjoying gatekeeper status shall not be allowed to limit or restrict access to third party radio services, or charge for carriage.

Whilst the Proposal sets out an obligation to apply “fair and non-discriminatory conditions of access for business users,” this only applies to one category of CPSs, namely the app stores. However, given the nature of gatekeeping platforms and DVAs, which act as gateways to specific services, we call for an extension of the scope of Article 6(1)(k) to cover CPSs other than app stores and to explicitly include DVAs, requiring them to apply fair and non-discriminatory conditions of access to all business users.

It is imperative that the appropriate balance is struck between the gatekeepers’ freedom to conduct their business and ensuring the fairness and contestability of the digital markets in which they are present.

4. Advertising

The ability of online platforms to generate revenues by free riding on the content made by radio operators is detrimental to commercial radio’s viability. It is essential to clarify that platforms enjoying gatekeeper status cannot insert sponsorship or advertising around any third party radio content that they distribute, without the express consent of the content provider. Furthermore, where a radio service has consented to the insertion, by an online platform, of sponsorship or advertising around its radio content then said radio service must receive a fair share of any advertising revenue generated by such activity.

In our view, this can happen in two ways, either add this obligation as a separate obligation under Article 6(1) or amend Article 6(1)(k) to also include this obligation.

5. Data sharing & Sherlocking

As per Article 6(1)(a) of the DMA Proposal, platforms enjoying gatekeeper status must “refrain from using, in competition with business users, any data which is generated through the activities of said business users” including from their customers, via these platforms. Business users would include the radio broadcaster companies who use these platforms and this obligation would apply to any DVA platform enjoying gatekeeper status.

It follows from the above that DVA platforms must provide the third party radio services they distribute with unlimited access to and use of all of the data they have collected from or generated in relation to said radio services. This must be done free of charge, on a continuous and real-time basis. Furthermore, gatekeeper platforms should not be allowed to use this data for their own services, unless they have obtained prior consent from a radio station to do so. Platforms should not be allowed to circumvent these data sharing obligations through special agreements or by just using radio aggregators or other intermediaries (e.g. TuneIn).

In its current form, the Regulation connects the obligation to share the data to the gatekeeper’s capacity to obtain user consent for data sharing. However, it should be made clear that if the gatekeeper does not obtain consent from end users to share their data with its business users, the gatekeeper must also not use such data itself.

While this provision constitutes a step in the right direction to prevent “sherlocking” practices by gatekeeping platforms, including DVAs, it will not be sufficient to prevent gatekeepers from using business and end user data they have gathered thanks to their gatekeeping role. This data can provide them with unparalleled market intelligence, allowing the identification of successful services or products offered by the business users and the subsequent development of competing services or products by the gatekeeper. This is because Article 6(1)(e), in its current form, would allow gatekeepers to use such data if they are made publicly available. In order to, therefore, provide an effective solution to the problematic practice of platforms unduly competing with their business users thanks to the data insights which have obtained through their gatekeeper role, the reference to “any data not publicly available” should be removed. Otherwise, gatekeepers may be incentivized to circumvent article 6(1)(a) by making certain data which would normally not be publicly available, publicly available (where privacy rules permit) – which coupled with the economies of scale and scope and the network effects these gatekeepers enjoy – would still unfairly favour gatekeepers over their business users.

6. Timeframe for investigations and proceedings

Timely intervention in digital markets that are at risk of tipping, such as the digital audio market, is key. Several articles of the Regulation touch upon timeframes. In our view, if we want the Regulation to have a meaningful impact some of these timeframes should be shortened. Specifically:

Article 3.8: the regulatory dialogue between the Commission and the gatekeeper in order to specify the measures for compliance with the obligations is due to last 6 months, but it should be reduced to 4 months in order to ensure that business users of the gatekeeper and eventually end-users are not exposed to the harmful conduct for longer period. Every day counts for businesses and end users alike.
Article 16: the timeframe for market investigations into systematic non-compliance, currently set at 12 months, should be reduced to 6 months. The Commission is set to launch market investigations after at least three non-compliance or fining decisions against a gatekeeper in relation to any of its core platform services within a period of five years prior to the launch of market investigation for systematic non-compliance. This means that the gatekeeper has already demonstrated harmful conduct to the detriment of business repeatedly and for a long time and the Commission is already aware of the problem. We should not prolong a harmful situation.
Article 17: if the DMA wants to ensure that digital markets remain fair and contestable, then the timeframe for market investigations in order to add new services to the list of core platform services or adding new practices (in Article 5 or 6) should be reduced to 12 months. The Commission should be able to act swiftly to ensure and stop gatekeepers from practices that harm their business users and 2 year is far too long.
Article 25: a specific timeframe for the adoption, by the Commission, of non-compliance decisions should be introduced. We believe that such decisions should be delivered in no more than 12 months after the initiation of the proceedings by the Commission (as described in Art. 18).

Finally, it is critical that the Commission retains the power to adopt interim measures (Art. 22) when there is prima facie finding of infringement of Articles 5 and/or 6. It is a security net for the businesses to not be irreversibly harmed by the conduct and practices of gatekeepers while the Commission’s investigations are ongoing. We call on the European Parliament and the Council to resist any attempts to water down this article.

Conclusion

The Association of European Radios welcomes and supports the DMA Proposal, which with some targeted amendments will be a much-needed tool to prevent designated gatekeepers from taking advantage of their size, their strong market position and the dependency of the business users that rely on their platforms to provide their products or services to end users.

With the adoption of our proposed clarifications to the DMA, radio service providers, who play a critical role in delivering media pluralism, trusted news, and cultural enrichment within the digital ecosystem, at a time when fake news is rife online, will stand a better chance of being treated fairly by gatekeeper platforms, including app stores, digital voice assistants, online search engines, operating systems, online social networking services, Moreover, with our proposed improvements, we are confident that the contestability of the digital audio ecosystem will be greatly improved, to the benefit of competition, innovation and ultimately consumers. We invite the EU co-legislators, European Parliament and the Council, to act swiftly and decisively so that radio can benefit from the regulatory safeguards that it requires, over the long term.

[1] Article 2(2) of the European Commission’s Proposal for a Digital Market Act, 2020/0374 (COD)

[2] Without prejudice to the Commission’s powers to identify gatekeepers pursuant to article 3 paragraph 6 of the DMA.