Revision Of Audiovisual Media Services Directive – Video-Sharing Platforms

Professor Lorna Woods, University of Essex

The revision of the Audiovisual Media Services Directive has been discussed since 2016.  There were important differences betwixt the responses of the Council as well as the European Parliament to the Commission’s proposal.  There receive got been ix informal trilogue meetings upward to as well as including that of 26th Apr 2018.  Although the institutions dry soil progress has been made, the text has non nonetheless been finalised - ‘technical details’ rest to hold upward agreed inwards June. In answer to a asking to take in the preparations for trilogue negotiations, the Council rejected the asking fifty-fifty to access the agreed compromise positions, stating that “this file is nether heavy pressure level from involvement groups which are especially interested inwards the negotiations on commercial communications (i.e. advertising) where economical stakes are high”.  The concern is that fifty-fifty existing agreements may hold upward undermined. Nonetheless, from the documents that are available some comments tin terminate hold upward made. 

This banking concern complaint focusses on ane of the to a greater extent than startling innovations from the Commission’s proposal – the provisions on “video-sharing platforms” - a farther extension inwards compass of the AVMSD (or some parts of it).  So, the commencement indicate to banking concern complaint is that although in that location mightiness hold upward important differences betwixt the institutions every bit far every bit the nature of the obligations to hold upward imposed on video-sharing platforms, as well as fifty-fifty understanding every bit to what constitutes such a platform, it seems that the institutions are agreed that some obligations should hold upward imposed.  The enquiry is non ‘if’, but ‘how’.

What is a Video-sharing Platform?

The proposal added at Article 1(1)(aa) a Definition of “video-sharing platform” (VSP), amongst a corollary Definition of “video-sharing platform provider” at Article 1(1)(aa).  As originally drafted, the Definition of VSP contained half dozen elements:

-          that in that location hold upward a service inside the pregnant of the TFEU – inwards this, in that location is the same starting indicate every bit for audiovisual media services;

-          the service consists inwards the storage of a large amount of programmes (as defined inwards the directive, as well as this Definition is proposed to hold upward changed from its electrical current formulation too);

-          that the provider of the service does non receive got editorial responsibleness (another defined term) for the content stored – this seems to hold upward a primal chemical constituent for drawing a boundary betwixt on-demand audiovisual media services as well as VSPs, every bit on-demand AMS providers may also organise content;

-          the organisation of the stored content is determined past times the service provider, whether automatically or not;

-          the principal role of the service (or of a ‘dissociable business office thereof’) is “devoted to providing programmes as well as user-generated videos to the full general public, inwards club to inform, entertain or educate’; and

-          as for other services inside the AVMSD, the service is made available over an electronic communications network.

The obvious comment that was made – as well as that was made nearly the definitions inwards previous incarnations of the directive – is that in that location volition hold upward some really hard boundary cases, especially every bit services as well as technologies develop.  This remains the case, but it seems that this Definition is broad plenty to grab most social networking sites, providing the requirement of ‘to the full general public’ does non hateful that opened upward to all complimentary to utilisation sites that receive got a brief registration procedure are non opened upward ‘to the full general public’.

Some points of departure inwards the approach of the diverse institutions tin terminate hold upward noted.  The Council proposal sought to take the phrase ‘large amount of’, piece the European Parliament suggested that the activity was non ‘storage’ but the ‘making available’ of such videos ‘to the full general public’.  The commencement business office of the European Parliament’s amendment makes the compass of the Definition wider. One mightiness infer that the Council’s concern was to arrive clear that alive streaming sites did non autumn inside the AVMSD as well as mightiness hold upward regulated nether national rules, every bit tin terminate been seen inwards Council proposed recital 29a (subject to the constraints of the e-Commerce Directive or full general principles of Union police – depending on the content of the service), though the Council has also proposed the removal of the discussion ‘hosting’ from the listing of agency past times which the content may hold upward organised.  Whether or non this is a ‘technology neutral’ approach – which is business office of the motivation for revising the AVMSD -depends on what is meant past times ‘technology neutral’ as well as the grade of granularity every bit which the applied scientific discipline is to hold upward assessed.   

The inclusion of the requirement that the videos must hold upward ‘in club to inform, entertain or educate’ tracks the terminology used to define audiovisual media services which is then broad that ane mightiness receive got idea that nada could autumn exterior scope.  The Court inwards Peugeot (Case C-132/17) ruled that self-promotional audiovisual media channels on YouTube did non satisfy this requirement – a conclusion that volition brand decisions nearly the applicability or otherwise of advertising rules to user-generated content to a greater extent than important – as well as convey into focus questions nearly the extent to which full general consumer protection rules would apply inwards this field.

There is a Definition of “user-generated video” added at Article 1(1)(ba) which tracks the Definition of “programme” inwards then far every bit it describes the format of the material, but is limited to such audiovisual fabric that “created and/or uploaded to a video-sharing platform past times ane or to a greater extent than users”.  This requirement, every bit drafted past times the Commission, does non ask the user to hold upward uploading their ain material, or that of other users of the VSP.  The Definition could comprehend the uploading of pirated material. The EP amendment proposed the removal of the discussion ‘created’ as well as the phrase ‘by ane or to a greater extent than users’. While the quondam alter seems to narrow the Definition slightly, this latter alter would take some superfluity, every bit to upload ane would receive got to hold upward a user of the platform inwards its normal feel of the discussion (“user” is non a defined term).  The Council proposed changes would also narrow the definition, every bit it proposes limiting user-generated to that created past times the user.  This seemingly excludes pirated material. While this seems to receive got some logic, generate is non the same every bit create. This touching of this proposed narrowing may hold upward slight because the focus of regulation is the sharing platform, which does non receive got to exclusively send user-generated video.  Would the outcome of this alter hold upward to exclude video-sharing sites the dealt primarily inwards pirated videos from the directive’s ambit?

What Rules Apply?

The rules are found inwards Article 28a, amongst Article 28b dealing amongst questions nearly grouping companies as well as attribution of responsibleness inwards that context.  It seems that the intention is that only the rules inwards this department should apply to VSPs as well as non the provisions inwards the directive generally, though the seat is non alone clear – especially every bit regards advertising rules.

The Commission proposal required Member /states to position an obligation on VSP providers to pick out ‘appropriate measures’ to protect ii groups of people from ii groups of harms:

-          minors every bit regards impairment of physical, mental or moral development; and

-          all citizens (but non non-citizens – the Council suggested changing this to ‘general public’) from content containing incitement to violence or hatred inwards honour of sure as shooting protected characteristics (sex, race, colour, religion, descent, national or ethnic origin).

The master copy proposal contained a minute paragraph the determined the sorts of measures that could hold upward required past times producing an exhaustive list, including price of use, historic menstruum verification as well as ratings as well as flagging systems.  A 3rd paragraph specified that Member States were to ‘encourage’ co-regulation amongst the appropriateness of the measures existence assessed past times the national independent regulatory authority.  Significantly, Member States were precluded from imposing stricter measures, salvage amongst honour to illegal content. These atmospheric condition were expressed to hold upward without prejudice to Articles fourteen as well as fifteen of the e-Commerce directive as well as to honour the atmospheric condition laid downwardly past times European Union police including those inwards the those provisions. Another theme hither is the desirability of co-regulation as well as reliance on codes of conduct, including Union-level codes of conduct.  Another enquiry relates to the respective roles of the NRAs, the contact commission (already established nether the existing directive) as well as ERGA, a novel torso fix to render advice.  The particular on these points lies exterior the compass of this note.

Both the Council as well as the European Parliament receive got position forrad amendments, the Council’s broadly tended to increase Member State’s liberty of action, the European Parliament’s emphasising liberty of expression.  Both sets of amendments heighten questions nearly the applicability of the rules to commercial communications rules or the full general commercial communication rules to VSPs.

The major indicate to banking concern complaint is the rejection of the Council of the maximum harmonisation approach – changing the Commission’s exclusive listing into an indicative listing as well as paragraph five right away states that Member States may pick out to a greater extent than detailed or stricter measures.  It seems unlikely that the Council would receive got the proposed limitation on Member State liberty – especially every bit it borders areas some the heart of State competence – the determination of criminal police as well as penalties. In a similar vein, co-regulation is to refer to the sorts of measures VSPs are to utilisation inwards paragraph 2 as well as non the obligation to protect inwards paragraph 1, as well as the requirement to assess the appropriateness of measures entrusted to the NRA is linked to the measures taken past times the VSPs to comply amongst the obligations imposed nether para 1, non the obligations inwards para 1 itself.  The Council also position forrad the proposition that proportionality should pick out into trouble organisation human relationship the size of the VSP every bit good every bit the impairment that provider has caused – though presumably this should non hold upward read every bit a justification for a VSP non applying measures at all.

The Council also extended the compass of the areas inwards which VSPs volition hold upward required to pick out measures- inwards essence linking these obligations amongst obligations found elsewhere inwards Union police – then the Combatting Terrorism Directive (EU 2017/541), kid pornography every bit understood inwards Directive 2011/93/EU as well as racism/xenophobia every bit found inwards Framework Decision 2008/913/JHA.  In general, both the Council as well as the Parliament proposed extending the protected characteristics for loathe crimes. In this context it should hold upward noted that the non-discrimination provision inwards Article 21 of the Charter contains a listing of protected characteristics and, if coherence amongst other elements of the police is a driver, it would brand feel to check that inwards this provision.  The Council’s listing refers dorsum to matters which are criminalised every bit a requirement of European Union law, but it is non expressly then limited.  If the primal concern is that the populace is to hold upward protected from content the dissemination which constitutes an activity which is a criminal offence nether the European Union police (by reference to the relevant legal instruments), this leaves the enquiry of where this leaves Member States amongst regard to speech communication that is criminal past times reference to domestic police but non European Union police derived, or fifty-fifty speech communication that is objectionable but non criminal nether national law.  It is notable that in that location is no reference to copyright infringement (which may receive got fallen inside the catch-all phrase found inwards the initial Commission draft, ‘illegal content’).

The proposals of the Council as well as the Parliament aim to convey commercial communications inside scope.  The obligations inwards relations to the harms are extended to include harms caused past times commercial communications as well as the full general obligations found inwards Art 9(1) are to hold upward complied amongst also (See Art 28(a)(1)(1a)), though a distinction is made betwixt arrangements made past times the VSPs every bit opposed to communications  arranged past times 3rd parties.  The rules inwards 9(1) bargain amongst the identifiability of advertising every bit existence such, every bit good every bit comprise some content rules (eg honour for human dignity).  It would appear that the powerfulness to laid stricter rules could come upward into play hither too.  The European Parliament takes a broader stance every bit to the rules to hold upward applied, suggesting that Articles ix as well as 10 should hold upward complied with.  Article 9(2) concerns the rules relating to “unhealthy food” as well as the evolution of codes of deport inwards relation to the marketing of alcoholic beverages to children.  Article 10 concerns rules relating to sponsorship, but non production placement.  On this reason it seems that some parts of the full general framing volition bleed into the specific video-sharing department – the enquiry to hold upward resolved is how much – as well as how much command VSPs tin terminate hold upward expected to receive got over 3rd political party content. If the indicate is that the requirement to hold upward transparent nearly advertising forms business office of the VSP price of use, how strongly would VSP providers hold upward expected to monitor as well as enforce compliance?  Further, how far would the inclusion of some provisions on advertising hateful that other European Union or national rules are excluded – presumably a similar approach to the enquiry of the harmonised acre every bit taken inwards de Agostini could hold upward envisaged here.

In price of measures to hold upward selected, in that location is a enquiry every bit to who much liberty VSPs would receive got – as well as inwards particular whether such providers would hold upward allowed to filter/monitor all content ‘to hold upward on the prophylactic side’ - amongst an touching on all users every bit good every bit the conduct chances of over-control.  The users’ privacy as well as liberty of facial expression are inwards issue, but the VSP providers presumably receive got some alternative nearly how they run their business. The declaration that Article fifteen e-Commerce Directive precludes full general monitoring does non fit good hither every bit Article fifteen is directed to the Member State; the number refers to the VSP providers’ choice, as well as non what in that location are required to practise past times the State. The e-Privacy Directive does non necessarily comprehend this indicate either.  As a autumn back, the remainder volition presumably hold upward found through the proportionality assessment to hold upward carried out past times the NRA nether Article 28a(2).

Article 28b deals amongst establishment of jurisdiction for the purposes of this department of the directive.  A different approach from that laid out amongst regard to AVMS is to hold upward adopted – that found inwards the e-Commerce Directive.  This emphasises the carve upward betwixt AVMS as well as the VSPs – highlighting the improver nature of the VSP provisions to the AVMSD.  Further provisions bargain amongst the seat where in that location is non an establishment inwards the EU.  Article 28b(2) ensures that the rules inwards Art 28a(1) practise non seize amongst teeth on the incorrect fellowship (e.g. the advertising unit of measurement of a fellowship grouping is established inwards the territory, but the primary service is run from USA – a model adopted past times e.g. Google as well as Facebook).  This has been amended past times the Council to ensure broad coverage then that where a non-EU VSP provider is business office of a grouping as well as whatever other fellowship inwards the same grouping is established inwards the territory of a Member State, that Member State may receive got jurisdiction, amongst hierarchy provisions trying to bargain amongst possible multiple claims to jurisdiction.  There are no equivalent provisions to the anti-circumvention provisions applicable to AVMS, then it is unclear how disagreements betwixt fellow member States every bit to the appropriate grade as well as intensity of regulation are to hold upward resolved.

Photo credit: Thaivisa

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