On 14 November 2018 the European Parliament adopted an amendment to the Audiovisual Media Services Directive (AVMSD). One of the main changes is to introduce a definition of video-sharing platform services. Who will be deemed to be a video-sharing platform provider, and what does this recognition entail?
The decision to regulate the status of video-sharing platforms was dictated by the recognition of their massive impact. It is estimated that over 500 hours of new content is uploaded to YouTube every minute, or 30,000 hours of new content every hour and 720,000 hours per day. Video-sharing platforms have altered social habits and behaviour, providing access to countless items of video content, allowing users to deepen their knowledge of such diverse fields as economics and physics on TED Talks, work out with international fitness gurus, and prepare new dishes with Gordon Ramsay or Jamie Oliver.
What is a video-sharing platform?
Under Art. 1(aa) of the amended AVMSD, a video-sharing platform is defined by the service it provides, where the principal purpose of the service (or a dissociable section or essential functionality) is devoted to providing programmes, user-generated videos, or both, to the general public, in order to inform, entertain or educate, by means of electronic communications networks. Under the definition, the video-sharing platform provider does not have editorial responsibility for the content, but determines how the content is organised and displayed, e.g. by automatic means or algorithms, tagging and sequencing.
Examples of a video-sharing platform under the newly introduced definition include services like YouTube, Vimeo and Dailymotion. The question arises whether the definition covers social media and websites whose main purpose is not to share videos but which contain much content of this type. As explained in the preamble to the amended AVMSD, “The definition of a video-sharing platform service should not cover non-economic activities, such as the provision of audiovisual content on private websites and non-commercial communities of interest,” e.g. blogs and forums. “Video clips embedded in the editorial content of electronic versions of newspapers and magazines and animated images such as GIFs” should also not fall within the definition.
Nonetheless, it appears that the EU lawmakers intended to extend the coverage of AVMSD to the broadest possible set of entities. The preamble to the amendment expressly states, “Where a dissociable section of a service constitutes a video-sharing platform service…, only that section should be covered…, and only as regards programmes and user-generated videos.”
The member states are required to maintain a register of video-sharing platform providers with their registered office in the member state’s territory.
Duties of platform operators
If an entity is deemed to be a video-sharing platform provider, that can have a major impact on its operations.
Numerous obligations are imposed on video-sharing platform providers, such as protection of minors against content that could impair their physical, psychological or moral development, and protection of the general public against content inciting violence or hatred, and content whose dissemination is illegal. To this end, AVMSD indicates 10 measures which should be applied by platform providers to protect users. These include, for example:
- Providing for systems of parental control over age-inappropriate content
- Establishing and operating transparent and user-friendly mechanisms for reporting or flagging inappropriate content
- Establishing and operating systems through which the platform provider explains to users what effect has been given to their reporting and flagging.
Video-sharing platform providers will also have to meet requirements concerning advertising, sponsoring, and product placement, specifically to inform users of such content. This could be a major step toward regulating hidden advertising online (which we have also discussed in the context of rules for cooperation with influencers). Providers will have to ensure that users have a function for flagging commercial content. Content shared on platforms will also be subject to restrictions and prohibitions on advertising of tobacco and alcohol. These are the same requirements that have been imposed for years on TV broadcasters and providers of on-demand audiovisual services.
The member states, in turn, must ensure that out-of-court mechanisms are available for resolving disputes between users and video-sharing platform providers relating to protection against prohibited content.
Status of implementation in Poland
The member states are required to implement the amended AVMSD by 19 September 2020. In Poland the implementation process is still at a very early stage, and no draft has been released yet for amending the Polish regulations.
Between October and December 2019 the National Broadcasting Council (KRRiT) conducted consultations on implementing the amended AVMSD into Polish law. The council distributed a survey with over 100 questions on this matter to 19 state offices and over 300 other entities. The responses were to help draft implementing provisions.
Over 60 of the questions involved the issue of video-sharing platforms, such as who should resolve out-of-court disputes arising out of the operation of such platforms, what should be the basis for setting fines imposed on platform providers, and what means should be applied by providers to protect minors against inappropriate content.
There were 36 entities taking part in the consultations, including television broadcasters such as TVN and TVP, and also the Ombudsman’s office, Google Poland, and the Polish Film Institute. The responses are available at the KRRiT website. But how the responses will be reflected in the new law remains to be seen.
Pamela Szwedko, Intellectual Property practice, Wardyński & Partners