The Audio-Visual Media Services Directive already implemented in the local Radio and Television Act
On 22 December 2020, a new Act for amendment and supplement to the Radio and Television Act was promulgated in the State Gazette and entered into force on the same day. With the amendments, Bulgaria has finally transposed Directive (EU) 2018/1808
On 22 December 2020, a new Act for amendment and supplement to Закон за радиото и телевизията (the Radio and Television Act - RTA) was promulgated in Държавен вестник (State Gazette) and entered into force on the same day. With the amendments Bulgaria has finally transposed Directive (EU) 2018/1808 (the Audio-visual Media Services Directive – AVMSD/Directive). This came shortly after the infringement procedure opened by the Commission against 23 Member States, including Bulgaria, for failing to transpose the Directive.
Video-sharing platform services
The main amendments concern the regulation of video-sharing platform services and providers within the meaning of the AVMSD. From now on, video-sharing platform providers under the jurisdiction of Bulgaria will be obliged to notify Съвет за електронни медии (the Council for Electronic Media - CEM) if they intend to provide such services. Respectively, CEM will keep a public register of all providers. The notification shall include various information on the provider and the platform. Among other things, what stands out is that a draft of the general terms and conditions (GTC) for the use of the video-sharing platform shall be attached to the notification. Moreover, the GTC will be subject to an ex-ante approval by CEM. If the GTC are not compliant with the applicable legislation, CEM will be able to give instructions to the video-sharing platform provider. Future amendments of the GTC shall be subject to the same approval procedure. In addition, CEM will have the right to take sole initiative to amend the GTC to ensure the interests of the audience.
Apart from the notification procedure, video-sharing platform providers shall take appropriate measures to protect the general audience and minors from different types of harmful content. These include discriminatory content, violence and hatred, content whose dissemination constitutes a criminal offence under Наказателен кодекс (the Penal Code), and other types of content which impair the physical, mental or moral development of minors. In addition, video-sharing platform providers shall comply with some requirements for commercial communications and Националните етични правила за реклама и търговска комуникация (the National Ethical Rules for Advertising and Commercial Communication) developed by Сдружение „Национален съвет за саморегулация“ (the National Council for Self-Regulation Association).
European works and on-demand media providers
Another important amendment concerns the promotion of European works by on-demand media providers. Before, the RTA was providing only general wording with respect to the promotion of European works, while the current regulation imposes specific obligations, the most important of which is reserving at least 30% of their content for European works. Their catalogues shall not only contain such works but also ensure they are given “sufficient prominence”. According to the RTA and the AVMSD, prominence can be ensured through various means such as a dedicated section for European works that is accessible from the service homepage, the possibility to search for European works in the search tool available as part of that service, the use of European works in campaigns of that service or a minimum percentage of European works promoted from that service's catalogue, for example by using banners or similar tools. The minimum share of 30% is calculated on an average annual basis and on the basis of the total number of works in the relevant catalogue. Further, the CEM shall adopt rules for determining the relative weight of individual types of titles in the catalogues of on-demand media services when calculating the share of European works in them. The rules shall also clarify the process of measuring the audience share of the on-demand audiovisual media services, subject to Communication from the European Commission (OJ C (2020) 4291 of 2 July 2020). The CEM shall publish annual reports for the European works contained in the on-demand media services.
It is worth mentioning that the RTA waives the EU quota requirements: i) for microenterprises (as defined in Commission Recommendation of 6 May 2003; ii) for on-demand providers with audience less than 1% of the total audience of all on-demand audio-visual media services offered on the territory of the country; iii) where it would be impracticable or unjustified by reason of the nature or theme of the audiovisual media services.
Closing on the topic of EU quotas, Bulgaria has decided not to transpose Article 13, paragraph 2 of the AVMSD, respectively media providers will not be obliged to contribute financially to the production of European works.
Accessibility of audio-visual media services for persons with disabilities
The amended RTA also ensures the accessibility of audio-visual media services for persons with disabilities such as impaired vision or hearing. Pursuant to the new provisions, the means to achieve greater accessibility shall include, but are not limited to, sign language, subtitling for the deaf and hard of hearing, spoken subtitles, and audio description. The RTA indicates that achievement of such accessibility shall be gradual and imposes obligations on media service providers to submit 3-year action plans for continuous and gradual improvement of the accessibility of their services as well as annual reports to the CEM. The first action plans shall be provided to the media regulator within 8 months.
It is important to note that media service providers shall ensure that emergency information which is made available to the public through audio-visual media services is accessible to persons with disabilities. Nevertheless, in exceptional cases where compliance with this requirement is not possible, emergency information shall not be prevented from being made public through audio-visual media services. The CEM shall provide on its webpage the contact details of an official appointed to provide information and receive complaints related to accessibility issues.
A specific and long-awaited obligation is introduced for: i) all national media service providers with digital terrestrial broadcasting and average audience share over 20%, and ii) for the public service broadcaster - Българска национална телевизия (Bulgarian National Television – BNT). They are now obliged to ensure the translation of at least one of their newscasts between 7 p.m. and 11 p.m. into Bulgarian sign language.
Important amendments are also introduced in the commercial communications section of the RTA. As per the AVMSD, the amended RTA now provides that the proportion of television advertising and teleshopping spots within the period between 6 a.m. and 6 p.m. shall not exceed 20%. For the period between 6 p.m. and 12 p.m. the maximum proportion is also 20%. The amended RTA does not provide any limitation for the broadcasters in the period between 12 p.m. and 6 a.m. The new approach permits broadcasters to schedule more advertising spots within the primetime. The requirements for non‑interruption of films made for television (excluding series, serials and documentaries), cinematographic works and newscasts for advertising for period of at least 30 minutes remains the same.
As regards product placement, it is noteworthy that the RTA waives the requirement set out in Article 11, paragraph 3, letter “d” of the AVMSD, except for programmes produced or commissioned by a media service provider or by a company affiliated with that media service provider. At the same time, both the AVMSD and the RTA refer to “affiliated companies”, but both acts do not stipulate a definition of the term which may lead to issues with the interpretation and application of the law.
Self-regulation and Code of Conduct (applicable to all media service providers)
The RTA provides a couple of new provisions changing essentially the current regime for minors’ protection. CEM together with media service providers must prepare Кодекс за поведение (а Code of Conduct), which shall include measures to assess, label and restrict access to programmes which are adverse to, or pose a risk of impairing minors’ physical, mental, moral and/ or social development. The Code of Conduct must be prepared within 8 months following the entry into force of the new legislation. Until then providers shall continue to apply the acts concerning minors‘ protection which are still in effect.
Also, a new uniform standard for regulation of sound levels in advertising will have to be developed. In addition, i) the existing National Ethical Rules for Advertising and Commercial Communication in Bulgaria developed by the National Council for Self-Regulation Association and ii) Етичен кодекс на българските медии (the Ethics Code of Bulgarian media) developed by Фондация „Национален съвет за журналистическа етика“ (the National Council for Journalism Ethics Foundation) will continue to apply. All of these would be mandatory and are considered as codes of conduct as per Article 4a, paragraph 1 of the AVMSD.
Country of origin principle (COP)
One comment deserves to be made concerning the COP. A new provision in the RTA essentially states that the rules of the Bulgarian audiovisual media services legislation shall be applicable also to providers under the jurisdiction of other Member States, which wholly or mainly direct their media services to the territory of Bulgaria. According to documents from the public consultations concerning the transposition of the AVMSD, this text aims to implement Article 4, paragraph 6 of the AVMSD, but it could be argued that this is not entirely compliant with the Directive. As a result, although it is too early to assess the implications of this text, the said local provision (Article 5b, paragraph 9 of the RTA) may potentially undermine to a certain extent the COP when applied in practice.
Other amendments in the RTA also include: extended competences for supervision of the media regulator – CEM; possibilities for derogation of the principle of freedom of retransmission in case of risk of prejudice to public health; providing for effective media literacy measures and tools and raising users' awareness of those measures and tools; enhanced principle of independency in the competences of the regulator; enhanced defense against public provocations to commit a terrorist offence and many others. What seems to be missing from the RTA is the lack of new provisions to ensure that the CEM have adequate financial and human resources to carry out their functions effectively. Nevertheless, with some exceptions the RTA seems to be mostly in line with the AVMSD and major deviations from the Directive cannot be identified at this stage.
The whole sector will now be expecting the secondary legislation that has to be adopted following the entry into force of the RTA, because it will have great impact on the content that can be broadcasted, especially in light of minors’ protection.