Germany

[DE] German regulators responsible for Amazon Prime Video post-Brexit

IRIS 2021-2:1/27

Christina Etteldorf

Institute of European Media Law

After the end of the Brexit transition period, Amazon’s Prime Video on-demand service within the European Union will fall under the jurisdiction of German regulators, and more specifically the Munich-based Bayerische Landeszentrale für neue Medien (Bavarian new media authority – BLM). The BLM and Amazon recently announced that, following joint discussions, Amazon had met the necessary conditions for its service to come under German jurisdiction, in accordance with the relevant provisions of the Audiovisual Media Services Directive (AVMSD).

Under Article 2 of the AVMSD, which applies to on-demand audiovisual media services such as the Amazon Prime on-demand service, legal jurisdiction within the European Union depends on the state in which the service provider is established, which in turn is largely determined by where editorial decisions on the service are taken or, if necessary, where a significant part of the workforce involved in the pursuit of the programme-related audiovisual media service activity operates. Since, under those criteria, the service had previously been operated in the European Union by the UK-based company Amazon Digital UK Ltd, the British regulator Ofcom had been responsible for its supervision. However, in cooperation with the Munich-based subsidiary Amazon Digital Germany GmbH, Amazon Digital UK Ltd has now ensured that editorial decisions regarding Prime Video in the European Union are mainly taken in Bavaria. As a result, once the United Kingdom has finally left the European Union, Ofcom will only regulate the Prime Video on-demand service in the United Kingdom.

The AVMSD contains a series of obligations for providers of on-demand audiovisual media services regarding matters such as advertising, protection from certain types of harmful content and the promotion of European works, compliance with which will in future be monitored by the BLM. The BLM will also therefore be the point of contact for regulatory bodies in other EU member states as regards the popular on-demand service. By ensuring that jurisdiction over its service lies in an EU member state, Amazon also benefits from the country-of-origin principle, which is enshrined in the AVMSD. Under this principle, the EU member states guarantee freedom of reception and must not impede the distribution of audiovisual media services from other member states in their territory on grounds related to matters coordinated by the AVMSD. By complying with the German rules implementing the AVMSD, Amazon can therefore continue to distribute its service to other member states without any restrictions. After Brexit, this provision of the AVMSD will no longer apply to audiovisual media service providers under the United Kingdom’s jurisdiction, who will instead be subject to international agreements and conventions that, in many cases, at least for the time being, have a narrower scope of application. For example, the Council of Europe’s Convention on Transfrontier Television, which still applies to the relationship between the European Union and the United Kingdom, does not cover video-on-demand services. Similarly, not all audiovisual services are governed by the EU-UK Trade and Cooperation Agreement.