VoD platforms and prominence: a European regulatory approach

Introduction

Audiovisual industries worldwide have undergone profound changes illustrated by the production, distribution and consumption of audiovisual services online. Today, citizens have at their disposal a broad spectrum of contents with free or paid access that they can consume through myriad devices. Furthermore, such consumption takes place in an increasingly personalized way, on demand and through platforms. Notwithstanding, it is not enough that said contents be at the disposal of potential consumers so that they can be viewed: users must be able to find the contents with ease.

The importance and implications of this process of ease of discovery, called prominence, have been known to audiovisual players and regulators for quite some time. In Europe, for example, as of the late 2000s, interesting debates have ensued about how to put in place rules to ensure that European works can be easy to find and consumed (Attentional et al., 2009, 2012). This is intrinsically linked to the fact that in the European Union (EU) prominence has been a key concept for addressing how works can be promoted by on-demand services since the adoption of the so-called Audiovisual Media Services Directive (AVMSD) in 2007.

In light of the recent reformulation of this norm in November 2018 (Directive 2018/1808/EU), this article provides an overview of the regulation regarding prominence of on-demand audiovisual services (Video on Demand (VoD)) at the EU level. The aim is to analyse its transposition into national provisions to identify different approaches and characterize them according to their implications for the general interest. In doing so, our study sheds light on the challenges and implementation issues that might arise in a market scenario disrupted by the expansion of VoD platforms operating transnationally.

From a methodological perspective, this article offers a regulatory analysis that relies on a critical bibliographical and documentary review of how this matter is dealt with at the European and national levels (examining articles in academic publications and specialized media, official reports, white papers, studies and legal texts). A legal analysis approach is especially important when providing an interpretation of particular issues and cases (Milosavljević and Poler, 2019), and document analysis offers an efficient, cost-effective means to access debates, although it does pose limitations (Karppinen and Moe, 2019). This study tries to overcome them by placing research within the context of wider legal aspects and their historical evolution.

Although no European country has a regulatory framework for prominence per se, and the implementation of this principle in relation to the transposition of the AVMSD has been very heterogeneous within the EU (European Audiovisual Observatory (EAO), 2019), four national cases will be considered: France, Belgium (French Community), Germany and the United Kingdom. France and Belgium are of interest for three reasons: they are among the very few nations that have clear and specific references to prominence obligations beyond the wording of the directive; they are the only two States that after the 2010 amendment of the AVMSD set up criteria to monitor its implementation; and they had national legislation in place for on-demand services even before the so-called Television without Frontiers Directive (TVWFD) became the AVMSD in 2007 (i.e. they had measures that had some similar effect to Article 3i of the 2007 AVMSD before it was implemented; Attentional et al., 2009, 2012).In contrast, Germany and the United Kingdom have issued no prominence obligations for VoD services. Nevertheless, their interest lies in the fact that they incorporated earlier the concept of prominence to their legal frameworks in relation to electronic programme guides (EPGs; i.e. they did so under the European framework for EPG regulation created with the Directive 2002/19/EC – better known as the Access Directive).

It could also be said that these countries are of interest because they represent the diverse views that have existed in relation to the EU’s audiovisual policy for many years, being the most obvious contrast between ‘dirigiste’ culturally protectionist France and the enthusiastically free-market ‘liberal’ United Kingdom, with another fault line running between large countries with strong audiovisual production capacities and small countries with weak culture industries (Collins, 1994; Gibbons and Humphreys, 2012). This latter division can apply to Germany and Belgium according to their particular features.

The British case is of additional interest due to it having left the EU. If after the end of the transition period, set for 31 December 2020, the EU rules in the field of audiovisual and media services, and in particular the AVMSD, no longer apply to the United Kingdom, two questions arise. The first one is whether the prominence obligation will nonetheless have a place in the United Kingdom; the second is what will happen to the capacity of influence which the country has had over the years in EU policy-making (Harcourt, 2016).

Before presenting the findings, and as a way of introduction, the article examines the notion of prominence along with its relation to other terms such as discoverability. After explaining how prominence is dealt with in the European scenario, selected national cases are analysed as well as challenges characterized. Finally, the potential broader implications for the general interest are discussed, concluding that to guarantee and justify that certain contents are easy to discover by citizens in an audiovisual scenario increasingly populated by platforms, the formulation of principles-based prominence rules can be a viable alternative. It is maintained that such principles should guarantee ease of discovery for public service contents.

Prominence and discoverability

It is no simple task to define what prominence is in regard to the VoD services that platforms offer online, nor is it easy to decide to which contents this regulation must be applied. For the first task, we have to address the meaning of this multifaceted term that applies to very diverse communicative realities, and in the second one, because it must be decided what contents should be the objective of the prominence.

Regarding the first point, we note that the origin of the word can be traced back to the late 16th century to denote something that juts out. From the Latin prominentia (‘jutting out’), and in connection with the verb prominere, it refers to the idea of being noticeable, of standing out in relation to what is in the surroundings. The word prominence is intrinsically linked to the notion of discoverability since something prominent must be easily discoverable.

But what does the term discoverability imply? Borrowed from the field of law in English and the field of information technology in both English and French, it refers to the capacity to easily find an item, whether it be an application or a piece of content (Canada Media Fund, 2016: 10). The Observatoire de la culture et des communications de l’Institut de la statistique du Québec goes further in stating that découverabilité refers not only to the capacity of a content to be easily discovered by a consumer search for it, but also to the capacity to be offered to those consumers who are not aware of its existence (Observatoire de la culture et des communications du Québec (OCCQ), 2017: 23). In a similar vein, Ofcom (2008: 49) classified findability, on one hand, and awareness and serendipity, on the other hand, as potential barriers to the discoverability of online content. For McKelvey and Hunt (2019), discoverability is a kind of media power that concerns how platforms coordinate users, content creators and software to make content more or less engaging.

When it comes to defining prominence (and discoverability, of course) in its relation to the supply and consumption of audiovisual services, we must address its application to a multiplicity of phenomena characterized by the fact that these contents can today be searched for and found in very different ways – for example, through programme schedules for individual channels, A–Z lists of programmes, recommendation tools that give suggestions based on previous viewing history or hardware shortcuts that take the viewer directly to a particular third-party VoD app (Ofcom, 2019a: 19).

How then can we define making a content available in a platform that would be noticeable in relation to other contents? Let’s take, for example, the case of user interfaces (UIs). There is evidence that suggests that UIs have the capacity to condition the way in which consumers access the services and interact with them, facilitating or hindering discoverability (MTM, 2019). The issue is that these UIs are present not only in the services themselves (in the search tools included with platforms such as Netflix or YouTube) but also in the devices that we use for their access (smart TVs, set-top boxes and streaming sticks – that are USB-like media players).

In short, there are any number of different ways to discover content that surpass in terms of quantity and complexity the options offered up to now by EPGs as navigation tools for linear TV viewing. At the same time, the existence of UIs with enhanced programme recommendations and more sophisticated search functions adds to the possibility of personalization based on individual consumption data; this is precisely what characterizes VoD platforms. Among this range of possibilities, certain areas and positions for promoting content or apps within a service or device’s UI are more desirable than others.

So, how should we define the type of content that would be noticeable in relation to others? For the European Broadcasting Union (EBU, 2020), for example, ensuring prominence should translate into securing findability and accessibility of general interest content on significant audiovisual platforms. The logic is that if platforms promote only the content commercially viable for them, those contents dedicated to minorities or niche audiences or genres get buried. Michalis (2018) points out that the new technological giants have big ambitions and are disproportionately powerful in financial terms, which is why one could expect them to be in a position to pay for the prominence of their own applications and services in the online environment at the expense of competing public service applications and services if negotiations and decision-making are left entirely to the market. In our view, since commercial platforms will be unlikely to promote content for the public good (e.g. via children’s or factual genres), unless a case for business can be made, safeguarding public service content to be the one noticeable is key for the general interest. And that is so because public service content is vital for democratic societies in terms of social cohesion, cultural diversity and civic participation.

These are the types of regulatory challenges presented when it comes to deciding which contents should be the object of prominence and through which mechanisms. If in the analogue past governments were able to exercise direct influence on what nationwide audiences could discover, in the current scenario of transnational platforms, existing regulatory frameworks have been proven to be limited. Ensuring the discoverability and prominence of certain contents has turned into an increasingly complex challenge for public policy.

Europe and beyond

Due to its specificity and history, it can be said that no jurisdiction outside of the EU has developed a comparable legal and policy framework. Nevertheless, concerns regarding the regulation of prominence of VoD services can be detected across the world. These are usually linked to other preoccupations, notably those related to content quota obligations.

At the international level, concerns have been framed, for example, within the debates that have been taking place in UNESCO regarding the adaptation of the 2005 Convention on Cultural Diversity to the digital era (e.g. Convention on Cultural Diversity Secretariat, 2018). At the national level, the Canadian case stands out; however, examples can also be cited ranging from Australia to Colombia.

While the Colombian Ministry of Information and Communications Technology approved Decree no. 681 in May 2020, obliging VoD service providers to make Colombian works easily available and clearly identifiable in their catalogues, the resolution of the Australian Children’s Screen Content Review remains pending since its release in August 2017. It stated that Australian content might not be receiving prominent exposure and was consequently difficult to find or less discoverable in the digital scenario (Australian Government, 2017: 7). The Digital Platforms Inquiry (Australian Competition Consumer Commission (ACCC), 2019), at the same time, noted the ability of platforms to determine the content and prominence of material displayed to consumers and recommended a harmonized framework for digital platforms and the media. The Government has committed to implementing it (Fletcher, 2020).

We can affirm, nonetheless, that the Canadian debate is one of the most mature ones. Stemming from the 2013–2015 Let’s Talk TV consultations, the Canadian Radio-television and Telecommunications Commission (CRTC) noted that discovering Canadian content had become an issue in the digital environment. To continue the discussion, the Discoverability Summit was celebrated in May 2016 and a nationwide consultation took place between 2016 and 2017. This culminated in the release of the Creative Canada Policy Framework in September 2017 (Department of Canadian Heritage, Canada (DCH), 2017). Even though one of the three pillars on which it is built refers to promoting the discovery and distribution of Canadian content at home and globally, it did not pursue imposing regulations or taxes on new players. That might well change, especially in light of the Quebecoise experience (Montpetit, 2019) and its cultural policy Partout, la Culture. Accompanied by a 2018–2023 culture action, it includes measures such as the creation of a strategy to promote the visibility and discoverability of Francophone content from Québec across digital networks (Government of Quebec, 2018).

Within Europe, despite the fact that the Council of Europe (CoE, 2018) incorporates into one of its Recommendations the need to establish mechanisms that ensure due prominence of general interest contents in relation to the issue of diversity content, the fundamental debate has taken place at the EU level and in relation to the updating of the AVMSD.

The use of the term prominence in the specific area of the European audiovisual regulation can be traced back to the 1990s and must be seen more specifically in relation to the amendments of the TVWFD, which came about with the approval of AVMSD in 2007 (Directive 2007/65/EC). A notable aim of these amendments was to include non-linear services within the scope of the norm. One of the new provisions introduced in this regard was Article 3i, which put in place requirements to ensure that non-linear service providers promote the production of and access to European works, stating that such promotion could be linked to the sharing and/or prominence of European works (EU, 2007).

This text was maintained in the 2010 revised Directive (2010/13/EU), being moved to Article 13 without further specifications (it is, however, true that Recital 69 gave further examples of how the production and distribution of European works could be promoted: taking the form, for example, of the attractive presentation of such works in EPGs). Accordingly, the incorporation of the notion of prominence into the European regulation was produced through a loosely defined term and one particularly open to different interpretations, which could lead to a wide variety of indicators and procedures. This is precisely what happened. The norm was incorporated unevenly by EU Member States.

The AVMSD

Over the years, the implementation of the AVMSD provisions on prominence was monitored (Attentional et al., 2009, 2012), leading to the early conclusion that prominence was a budding concept with a rather vague implementation. In fact, by 2011 only France and Belgium were ready to monitor its implementation. Currently, there is no regulatory framework that provides a closed definition of what should be understood as prominence in relation to on-demand audiovisual services (EAO, 2019). Furthermore, the practice of VoD service providers has revealed many potential ways of ensuring the prominence of European works (EAO, 2015: 33), with the most commonly used methods being promotion and showing of European film trailers on homepages; special offers and recommendations through an algorithm were employed by less than half of the VoD services surveyed, while even fewer employed a search function by country of origin.

This had very much to do with the fact that Article 13 of the 2010 AVMSD presented prominence initiatives as one possibility among others to promote European works. As a consequence of the transposition, VoD services were invited to promote European works by way of access measures which could include prominence initiatives (or not). As the mapping of national rules for the promotion of European works in Europe drawn up by the EAO for the European Film Agency Directors (EFADs) clearly explains ¹ (EAO, 2019), this ended up being the case in the large majority of instances: 19 out of 31. Yet, out of these 19 cases, we can find a clear and specific reference to prominence obligations, beyond the wording of the directive, in 10 of them: Austria, Belgium – French and Flemish Community, Bulgaria, Finland, France, Italy, Poland, Portugal and Romania.

Among countries with strategies in place developed to assess how VoD service providers implement prominence, the following stand out (European Regulators Group for Audiovisual Media Services (ERGA), 2018: 45): monitoring the promotional intensity of European works and the proportion of dedicated promotional spaces; measuring the performance of providers regarding adherence to the obligation; and mandating annual reporting by the service providers on their activities, including prominence measures.

It has yet to be seen what will happen now that the AVMSD has been updated. Member States are obliged to transpose new obligations contained in Article 13 of the 2018 AVMSD, which, in regard to prominence, has been replaced with the following wording:

Member States shall ensure that media service providers of on demand audiovisual media services under their jurisdiction secure at least a 30% share of European works in their catalogues and ensure prominence of those works. ² (EU, 2018)

Once again, the Directive does not include a definition of prominence, although it provides guidance in Recital 25 when it explains that media pluralism, cultural diversity and free speech should be objectives under which the promotion of general interest content shall be ensured. In addition, Recital 35 explains that prominence involves promoting European works through facilitating access to them, and that it can be ensured through various means such as a section dedicated to European works that is accessible from the service homepage, the possibility to find European works with 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. Specifically prioritizing public service content is not contemplated and guidelines adopted in July 2020 did not clarify things further (European Commission (EC), 2020).

The text of Article 13 is the result of a long and complex debate that began in May 2015 when the public consultation on Directive 2010/13/EU on Audiovisual Media Services – a media framework for the 21st century first appeared (EC, 2015). The synopsis of the main responses to the consultation on promotion of European audiovisual content reveals that, in this respect, there was no clear consensus across stakeholders (EC, 2016).

At the same time, the interinstitutional trilogue negotiations on the text were not concluded until June 2018 because one of the touchstones of the agreement revolved around the need to ensure that the catalogues of VoD platforms contained a minimum share of European works (García Leiva and Albornoz, 2020). The European Parliament, together with some States (including France, Spain, Germany, Italy and Hungary), pushed for a minimum 30% share to which the phrase ‘ensure prominence of those works’ remained affixed.

National cases

Neither the United Kingdom nor Germany has prominence obligations in place for VoD services, although they have in fact regulated the matter in relation to EPGs since the mid-1990s. However, examples evidence a light-touch regulatory approach with a significant difference in terms of the aims pursued. Whereas the UK strategy is oriented towards securing due prominence for public service contents, the German concern is to avoid anti-competitive practices via balanced rules for both private and public providers. Therefore, where the former allows preferential treatment, the latter focuses on guaranteeing equal treatment.

In the United Kingdom, the question of due prominence first appeared in 1997 applied to EPGs and in a code of conduct drafted by what was then the media regulator, the Independent Television Commission (Van der Sloot, 2012: 142). The prominence regime in force is based on the Communications Act 2003 and its Code of Practice for EPGs which refers to appropriate prominence for public service channels. Ofcom (2004) considers that ‘appropriate prominence’ allows a measure of discrimination but does not propose to be prescriptive about what appropriate prominence means since there are many possible ways in which EPGs could display information (p. 6). Therefore, EPG providers are required to ensure that the approach they adopt is objectively justifiable, and that it is published in a statement. The final aim is to safeguard the position of all public service channels and improve the discoverability of some (Ofcom, 2019b).

Due to the fact that current legislation only covers prominence of linear public service channels within EPGs, but not of content provided on demand, Ofcom is moving forward recommending the creation of a new legal framework that should initially focus on securing discoverability of public service content on connected TV platforms (Ofcom, 2019a). This framework should be flexible enough to be adapted to changes in technology and viewer behaviour, and should allow viewers to easily find public content on the homepage of connected TVs while giving protected prominence within TV platforms’ recommendations and search results.

In Germany, the Interstate Treaty on Broadcasting and Telemedia (Rundfunkstaatsvertrag) has been the primary applicable legislation until early 2019 when it was amended and transformed into an Interstate Treaty on Media (Medienstaatsvertrag). Finally adopted on December 2019, it could enter into force in fall 2020. This new treaty, designed in part to take into account the provisions of the amended 2018 AVMSD, extended the scope of application to so-called intermediaries, platforms and UIs (Etteldorf, 2018), ensuring that media content with added social value can be easily found and is not overlooked in the superabundance of the digital world.

The main goals for reform include general principles such as technological neutrality, transparency and prohibition of discrimination (Rundfunkkommission der Länder, 2019). More specifically, section ‘National cases’ has a subsection dedicated to media platforms and UIs which refers to findability (Auffindbarkeit in Benutzeroberflächen). In a nutshell, it mandates that

Like the United Kingdom, Germany has a certain tradition regarding the regulation of EPGs: in 1996, the Rundfunkstaatsvertrag had already stipulated that the providers of systems which could control the selections of TV programmes had to offer all broadcasters their technical services in fair, reasonable and non-discriminatory conditions, with the homepage making equal reference to public and private channels. Precisely, this idea of equality in weight has remained one of the distinguishing features of the German regulatory approach towards EPGs – something that differs significantly from the British model that gives public channels due prominence (Van der Sloot, 2012: 143).

Both France and Belgium – French Community have had clear and specific references to prominence obligations for VoD services, beyond the wording of the AVMSD, since the mid-2000s. Although both examples share as a main concern the promotion of European and French-language content and therefore pursue similar aims, the regulatory approaches developed evidence important differences in terms of means. The flexible and consensual Belgian approach, based on legal guidelines and cooperation with providers, contrasts with the French heavy-handed approach that entails intervention via detailed obligations. Their advantages and disadvantages have been portrayed in the evaluations of the implementation of their prominence obligations.

In France, according to Article 13 of Decree 2010-1379 on on-demand audiovisual media services, VoD service providers must include European as well as French works, of which a substantial proportion needs to be present and given prominence on the service homepage, notably through the display of images and the provision of trailers. Different studies found that the real impact of these obligations was questionable – since few users accessed services via their relevant homepage – and that other alternatives – such as search tools by origin of production – needed to be considered (Conseil Supérieur de l’Audiovisuel (CSA-F), 2013; IDATE, 2016).

It was no surprise therefore that, when the time came to comment on the amended AVMSD, the position of the CSA-F regarding prominence was that this obligation needed to be clarified in the text or within guidelines issued (CSA-F, 2017). This is in line with the French government view of maintaining the regulatory framework in place and extending it to the various forms of audiovisual services – including those of foreign players – and the idea of relying on the transposition of the AVMSD to do so (Bouquillion, 2019).

Nevertheless, it is difficult to foresee how the implementation of the 2018 AVMSD will be undertaken in France, in general, and whether the definition of prominence will specifically be elaborated on further, in particular, since a new draft law on audiovisual communication and cultural sovereignty in the digital age was put forward by the Government in 2019. It is highly controversial because it affects several organic laws as well as major issues such as the reorganization of regulatory bodies.

In Belgium – French Community, according to Article 46 of the Coordinated Act of 26 March 2009 on Audiovisual Media Services, VoD services are to promote the European works in their catalogue, including those by authors from the French Community, by highlighting, through an attractive presentation, the list of available European works. As Metzdorf points out (2014), unlike the rather rigid legal order in France, the audiovisual regulator for French-speaking Belgium, the Conseil Supérieur de l’Audiovisuel (hereafter, the CSA-B), actively shaped the interpretation of this disposition; the French Community selected ‘prominence’ as the primary means of promotion while refraining from establishing quotas or soliciting investments from VoD providers (which France did).

When the changes that the 2010 AVMSD brought with it were implemented, there was already concern in Belgium about defining the ‘give prominence’ idea. So, although the same wording contained in Recital 69 of the Directive was adopted, the legislator had in fact already further specified this notion, stating that prominence would be achieved by increasing the visibility through the use of all possible promotional techniques. These included (Furnémont, 2013: 40) advertising inserts on the homepage of the provider’s EPG and website; the creation of a special category in its electronic catalogue, dedicated specifically to European works; or references to the European works available in its catalogue, in feature articles in its magazines or in brochures sent to its customers.

The CSA-B decided to suggest further possibilities such as giving prominence under headings (‘new releases’, ‘last chance’, ‘great classics’, ‘favourites’, etc.), via sections with preferential pricing or even available free of charge to users, or by using promotional campaigns for the VoD service itself. It also developed a structured methodology in collaboration with providers to facilitate enforcement of the requirements (Nikoltchev, 2013: 37; OMC Group, 2019: 12). Providers are expected to share a list of the tools used to implement prominence of European works, together with information about works consumed and the composition of catalogues, so that the regulator can put viewing numbers in relation to tools and strategies.

Even though the CSA-B ‘seemed to struggle with the establishment of a firm causal link between the measures taken to increase visibility and the consumption of the promoted works, inferring that further qualitative studies were necessary to that effect’ (Metzdorf, 2014: 3), it was allegedly verified that with this approach European works were boosted (CSA-B, 2012; Collège CSA-B, 2015). It is, therefore, foreseeable that this is the path they will continue to follow.

Diverse approaches and challenges

As can be readily surmised, the task of securing prominence is not any easy one. Nor has the regulation in the EU contributed to facilitating it as the norm regarding prominence is the bare minimum, and since it first appeared it has maintained its loose definition that has led to a vague and heterogeneous implementation. In any event, all of the Member States will have to develop their own approach to the issue to comply with the transposition of the 2018 AVMSD. There are many concerns that there might not be a consistent implementation across the EU: not only because few regulators are now ascertaining prominence, but also because of some of the challenges that may arise. In this respect, it should also be brought to the forefront that VoD platforms’ offerings evolve and include innovations on an ongoing basis (e.g. voice-driven search or casting content from mobile devices to the TV set). In other words, how prominence can be achieved today may be very different from how it can be achieved in 5 years’ time.

Evidently then, the main challenges to the regulation of prominence do not only come from the complexity inherent to the concept or from the scant or diverse experience in this matter among countries, both in terms of design and implementation. Challenges also arise from increasingly sophisticated technological and market dynamics that shape what can be classified as commercial prominence: availability and ease of discovery of content depend on commercial negotiations – rarely made public – between TV platforms, content providers and third-party technology providers, and these deals range from securing presence on the homepage or inclusion in recommended sections to the creation of hardware shortcuts for this purpose, such as buttons on remote controls (MTM, 2019).

The four cases presented here are of interest because they illustrate these problems and the array of possible solutions beyond the existence or not of specific obligations for VoD platforms under the umbrella of the AVMSD. Although one could think that those countries with specific references to prominence obligations for VoD services beyond the wording of the AVMSD have a heavy-handed regulatory approach to the matter, which is true for the French case that is founded on detailed obligations, it is not the case of Belgium – French Community, based on flexible guidelines and cooperation with providers. In a similar way, it could be posited that those countries without prominence obligations in place for VoD services, like Germany and the United Kingdom, have a regulatory hands-off approach in this matter. Nothing could be further from the truth since in both cases the concern regarding prominence for specific contents has a long history. However, what is true is that their perspective is one of minimalist action, but clearly differentiated by the objectives they pursue.

In short, the findings reveal very different national approaches that suggest – once again – the conflict between economic liberals and cultural policy-oriented dirigistes that has shaped EU audiovisual policy (Gibbons and Humphreys, 2012), among other existing frictions. We can also highlight what emerges as a common element to all cases considered: the existence of a previous concern about prominence issues that cannot be directly linked to EU regulation. This concern, which might well be characterized as sociopolitical, has emerged in each country in a historically complex way, hand in hand with the evolution of its own cultural and communicative policies. And for this reason, it is not a far-fetched supposition that the implementation of the 2018 AVMSD – and prominence obligations – will continue to be heterogeneous, as it has been until now, throughout the entire EU.

Another debate is to what extent and degree the United Kingdom’s exit from the EU on 31 January 2020 could have repercussions on these processes. Once the 11-month transition period is over, the United Kingdom will stop following EU rules and no longer will be part of the EU’s customs union and single market. In other words, the AVMSD will no longer apply to the United Kingdom, which will become a third country for the EU, and the framework would be that of the European Convention on Transfrontier Television of the Council of Europe signed by the United Kingdom in 1993.

In light of the possible flaws with this outdated norm and the rapidly diminishing likelihood of including audiovisual media services in any free trade agreement with the EU (Brady and Wiseman, 2019), some studies have already reflected on likely impacts of various post-Brexit scenarios on the EU regulatory environment for the audiovisual sector as well as major legal repercussions on both the United Kingdom and the EU (e.g. Cabrera Blázquez et al., 2018; Cole et al., 2018). We will have to wait and see because the true consequences of Brexit will depend on whether the transition period ends with or without terms being agreed upon.

With respect to our study, two reflections can be made. The first is whether the prominence regulation will at any rate have a place in the United Kingdom, with the answer being yes as it has held such a position for a long time and Ofcom has made important proposals to extend the regulation beyond linear services to secure discoverability of public service content online. The second reflection is whether the United Kingdom’s capacity of influence in EU policy-making could simply lead it to announce its end, together with a parallel strengthening of others’ positions, such as that of France. However, the importance of its market in the region, as well as the international projection of some of the United Kingdom’s audiovisual institutions (such as Ofcom and BBC), makes it feasible that the European audiovisual space will continue to be inclined to listen to what its former member has to say.

At the same time, we must not forget that in European audiovisual history, the United Kingdom has not been the only country that opted for liberalization and self-regulation positions (Collins, 2002; Gibbons and Humphreys, 2012). For this reason, many of the ideas personified by this country are not simply going to disappear from the European regulatory ambit because it no longer belongs to the Common Market. Hence, the reshaping of the balance of power in the future construction of the regulation and European audiovisual policy will be one of the great unknowns to be revealed in the coming years. At any rate, it does not seem likely that Brexit is going to alter how the 2018 AVMSD will be implemented in each Member State in regard to their regulations on prominence.

As a way of concluding

This article has offered an overview of the European regulation regarding prominence of VoD services analysing different national approaches. To conclude, it reflects on the implications for the general interest of such approaches in particular and also of regulating prominence in general in an increasingly competitive and complex audiovisual scenario.

Regarding the implications of approaches studied, due to ongoing developments in this field, any conclusions must be tentative. It is clear though that further research needs to be done since there is little evidence to suggest that one strategy is better than others. As to what our research has been able to ascertain, it is not possible to affirm that a heavy-handed regulatory approach can effectively guarantee prominence for certain contents without colliding with other objectives (notably those related to competition), nor, on the contrary, could a light-touch approach be possible without putting a strain on other principles (notably the protection of diversity). It also is unclear whether any of the approaches studied will serve as benchmark at a European level.

Having stated that, if we expand our gaze to the implications of regulating prominence in general, in order to contribute to protecting the general interest, our conclusion here is that the response must be formulated in a multi-dimensional way, and thinking in terms of audiovisual production, distribution and consumption.

In the first place, clarifying how prominence must be understood can have a direct and immediate effect on how contents are made available. Not only because it would influence the way in which said contents are presented to the viewer (tagged, location on the homepage, etc.), but also because it could have an impact on the routes by which they are accessed (EPG positions, search tools, players, etc.).

Second, in the mid- and long term, it could lead to the possibility of counterbalancing commercial prominence. This type of prominence, which currently dominates the distribution of content (coming about, for example, from negotiations between TV platforms and content providers), could be substituted by a new equilibrium in which the notion of public interest has a clear place (e.g. ensuring a certain location for public service contents).

Third, it is difficult to predict to what degree this could end up influencing the actual production of contents. However, what is clear is that the regulation of prominence cannot be thought of as an isolated measure. Its purpose and usefulness can only prosper within a set of decisions that are comprehensively aimed at protecting the general interest.

In Europe, where audiovisual regulation has been developed in conjunction with competition law, progressing to a closed legal definition of what it means to grant prominence for certain contents in a digital environment is most difficult indeed. What can then be done? How can it be guaranteed – and justified – that some contents are easy to discover by citizens in an overwhelming online world?

There is not one sole or linear response to this question that every audiovisual system must confront, but it does seem clear that the solution will not come from a closed list of obligations which might already be outdated when it emerges. The idea defended here is that the formulation of principles-based rules can offer instead an alternative (EBU, 2020; Ofcom, 2019a). Such principles should guarantee ease of discovery for public service offerings, in general (whether they are linear channels or on-demand catalogues), and public service productions, in particular (whether they are children’s, factual or indigenous fiction genres).

Why? Because public service contents are intended for everyone rather than for just some; because they serve the public interest, rather than private interests; and because they are geared towards social benefit rather than commercial profit. In other words, the idea is that when deciding what type of contents must benefit (or not) from obligations of prominence, the criteria be that the values and aims are essentially sociocultural and not merely commercial.

Who decides what is prominence is a question related to power issues, and unless a general interest-oriented regulatory answer is given the market alone will have the last word about what is prominent or not. How traditional regulation will translate into the scenario of transnational VoD platforms, nobody knows, but a protective framework based on securing prominence for public service contents – so that they are visible and findable – may at least offer a chance to protect the audiovisual general interest in the digital world.