Regulation of video on demand : solely a question of implementation of the new European guideline 2007/65/EC?

Current Swiss law regulates available video on demand services the same as print media. But the RTVG (the Federal Code on Radio and Television) which codifies all electronic mass media only regulates traditional radio and television services. The European guidelines on audio-visual media services and the draft of the new European Council Convention on cross-border audio-visual services are moving on-demand services closer to current television regulations. This will inevitably lead to necessary amendments of the RTVG. With the predicted rise in video on demand services the question also arises whether or not and to which extent the state may claim a right to organize and interfere with this new media. This in mind, particular attention will have to be devoted to the fact that the statutory program mandate as stated in Art. 93 Abs. 2 BV (Swiss Constitution) only applies to radio and television. Therefore, interference in other electronic media is not permitted. Further, the introduction of an approval procedure for video on demand content is prohibited due to the constitutionally guaranteed freedom of the press. But youth and consumer protection constitute important public interests, which would justify infringements of the video on demand market. The applicable principle of a light regulatory regime could then still be sufficiently upheld by restricting content-based obligations to programs with actual public mass relevance and not to any provided program. If, in future, the SRG (Swiss Radio and Television Company) is also required to fulfill its statutory program in the video on demand field, that mandate would have to be codified by the legislator. A full range of video on demand services provided by the SRG would then bear the risk of crowding-out respective private initiatives in this field and therefore would have to be restricted to the democratic, social and cultural demands of society ("Public Value Test"). The necessary public consultation processes, independent decision-making authorities and legal remedies for the statutory program mandate will ultimately have to be established by the time the European Council Convention on cross-border audio-visual services is implemented.