Implementation of the Audiovisual Media Services Directive in Poland

On 4th January 2011 the Polish government proposed a draft bill amending the Radio and Television Act (ustawa o radiofonii i telewizji) with a view to transpose Directive 2010/13 /EU on audiovisual media services (so-called AVMS Directive).

The draft bill introduces significant changes to the existing media regulations. First of all, its scope of application will be extended: not only will it cover linear media services (traditional television and radio broadcasting), but also non-linear (on-demand) audiovisual media services, which escape regulation under the current legal framework. The new rules would not apply to audiovisual contents on Internet websites of private users, blogs, forums or electronic correspondence; electronic editions of newspapers and magazines; and gambling. Importantly, audio services transmitted via electronic communications networks (e.g. Internet radio) will also be exempt from regulation. Traditionally, television and radio services were regulated in a similar way. One of the main issues before the drafters was, therefore, whether the application of the new rules should go beyond the scope of the AVMS Directive (which only covered audiovisual media services) so as to cover audio media services conveyed over the Internet as well. The drafters finally decided not to subject such services to regulation for reasons such as, among others, audio media services not having such a strong influence over the public as audiovisual media services, difficulties in precisely defining audio media services and how they differ from other audio services, and the risk of over-regulation.

Furthermore, in line with the provisions of the AVMS Directive, the draft bill introduces new terms to the existing media act, such as “media service” (comprising both television and radio broadcasting, as well as on-demand audiovisual media services), “on-demand audiovisual media service” (i.e. a service enabling the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider), “editorial responsibility”, “commercial communication”. The term “broadcaster” has been substituted with “media service provider”.

The National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji) would see its powers expand so as to exercise control over all media services to which the Radio and Television Act would apply, including on-demand audiovisual media services. The National Broadcasting Council would maintain a registry of providers of linear audiovisual media services (television broadcasting) transmitted only via electronic networks. As regards on-demand audiovisual media services, the providers of such services would be subject to an entry onto a list of on-demand audiovisual media services providers, also kept by the National Broadcasting Council. Moreover, the Council will be charged with the task of supporting the development of media literacy among all age groups. Also, the President of the Council will have the right to issue fines to media service providers who fail to fulfill the obligation to have an entry in the relevant registry or list of media service providers.

The draft bill also introduces new rules concerning advertising and other forms of commercial communications. Pursuant to the provisions of the AVMS Directive, the proposed amendments also pertain to sponsoring, an absolute ban on surreptitious commercial communications and a general ban on product placement (with few exceptions). In line with the Directive, television advertising and teleshopping will be readily recognizable and distinguishable from editorial content. With respect to interrupting programmes by television advertising and teleshopping, the draft bill introduces rules stricter than those provided for by the AVMS Directive – there is an absolute ban on interrupting news and current affairs programmes, religious programmes, children’s programmes, and documentaries shorter than 30 minutes.

The draft bill also contains certain provisions on the promotion of European works, which should gradually occupy more and more of transmission time.

The draft bill will now be sent to the parliament for deliberation.