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 significant differences
between the responses of the Council and the European Parliament to the
Commission’s proposal.  There have been 9
informal trilogue meetings up to and including that of 26th April 2018.  Although the institutions state progress has
been made, the text has not yet been finalised – ‘technical details’ remain to
be agreed in June. In response to a request to see the preparations for trilogue
negotiations, the Council rejected the request even to access the agreed
compromise positions, stating that “this file is under heavy pressure from
interest groups which are particularly interested in the negotiations on
commercial communications (i.e. advertising) where economic stakes are
high”.  The concern is that even existing
agreements may be undermined. Nonetheless, from the documents that are
available some comments can be made. 

This
note focusses on one of the more startling innovations from the Commission’s
proposal – the provisions on “video-sharing platforms” – a further extension in
scope of the AVMSD (or some parts of it). 
So, the first point to note is that although there might be significant
differences between the institutions as far as the nature of the obligations to
be imposed on video-sharing platforms, and even understanding as to what
constitutes such a platform, it seems that the institutions are agreed that
some obligations should be imposed.  The
question is not ‘if’, but ‘how’.

What is a Video-sharing Platform?

The
proposal added at Article 1(1)(aa) a definition of “video-sharing platform”
(VSP), with a corollary definition of “video-sharing platform provider” at
Article 1(1)(aa).  As originally drafted,
the definition of VSP contained 6 elements:

         
that there be a service within the meaning of
the TFEU – in this, there is the same starting point as for audiovisual media
services;

         
the service consists in the storage of a large
amount of programmes (as defined in the directive, and this definition is
proposed to be changed from its current formulation too);

         
that the provider of the service does not have
editorial responsibility (another defined term) for the content stored – this
seems to be a key element for drawing a boundary between on-demand audiovisual
media services and VSPs, as on-demand AMS providers may also organise content;

         
the organisation of the stored content is
determined by the service provider, whether automatically or not;

         
the principal purpose of the service (or of a
‘dissociable part thereof’) is “devoted to providing programmes and
user-generated videos to the general public, in order to inform, entertain or
educate’; and

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

The
obvious comment that was made – and that was made about the definitions in
previous incarnations of the directive – is that there will be some very
difficult boundary cases, especially as services and technologies develop.  This remains the case, but it seems that this
definition is broad enough to catch most social networking sites, providing the
requirement of ‘to the general public’ does not mean that open to all free to
use sites that have a brief registration process are not open ‘to the general
public’.

Some
points of difference in the approach of the various institutions can be
noted.  The Council proposal sought to
remove the phrase ‘large amount of’, while the European Parliament suggested
that the activity was not ‘storage’ but the ‘making available’ of such videos
‘to the general public’.  The first part
of the European Parliament’s amendment makes the scope of the definition wider.
One might infer that the Council’s concern was to make it clear that live
streaming sites did not fall within the AVMSD and might be regulated under
national rules, as can been seen in Council proposed recital 29a (subject to
the constraints of the e-Commerce Directive or general principles of Union law
– depending on the content of the service), though the Council has also
proposed the removal of the word ‘hosting’ from the list of means by which the
content may be organised.  Whether or not
this is a ‘technology neutral’ approach – which is part of the motivation for
revising the AVMSD -depends on what is meant by ‘technology neutral’ and the
level of granularity as which the technology is to be assessed.   

The
inclusion of the requirement that the videos must be ‘in order to inform,
entertain or educate’ tracks the terminology used to define audiovisual media
services which is so broad that one might have thought that nothing could fall
outside scope.  The Court in Peugeot
(Case C-132/17) ruled that self-promotional audiovisual media channels on
YouTube did not satisfy this requirement – a conclusion that will make
decisions about the applicability or otherwise of advertising rules to
user-generated content more significant – and bring into focus questions about
the extent to which general consumer protection rules would apply in this field.

There
is a definition of “user-generated video” added at Article 1(1)(ba) which
tracks the definition of “programme” in so far as it describes the format of
the material, but is limited to such audiovisual material that “created and/or
uploaded to a video-sharing platform by one or more users”.  This requirement, as drafted by the
Commission, does not require the user to be uploading their own material, or
that of other users of the VSP.  The
definition could cover the uploading of pirated material. The EP amendment
proposed the removal of the word ‘created’ and the phrase ‘by one or more
users’. While the former change seems to narrow the definition slightly, this
latter change would remove some superfluity, as to upload one would have to be
a user of the platform in its normal sense of the word (“user” is not a defined
term).  The Council proposed changes
would also narrow the definition, as it proposes limiting user-generated to
that created by the user.  This seemingly
excludes pirated material. While this seems to have some logic, generate is not
the same as create. This impact of this proposed narrowing may be slight
because the focus of regulation is the sharing platform, which does not have to
exclusively carry user-generated video. 
Would the effect of this change be to exclude video-sharing sites the
dealt primarily in pirated videos from the directive’s ambit?

What Rules Apply?

The
rules are found in Article 28a, with Article 28b dealing with questions about
group companies and attribution of responsibility in that context.  It seems that the intention is that only the
rules in this section should apply to VSPs and not the provisions in the
directive generally, though the position is not entirely clear – particularly
as regards advertising rules.

The
Commission proposal required Member /states to put an obligation on VSP
providers to take ‘appropriate measures’ to protect two groups of people from
two groups of harms:

         
minors as regards impairment of physical, mental
or moral development; and

         
all citizens (but not non-citizens – the Council
suggested changing this to ‘general public’) from content containing incitement
to violence or hatred in respect of certain protected characteristics (sex,
race, colour, religion, descent, national or ethnic origin).

The
original proposal contained a second paragraph the determined the sorts of
measures that could be required by producing an exhaustive list, including
terms of use, age verification and ratings and flagging systems.  A third paragraph specified that Member
States were to ‘encourage’ co-regulation with the appropriateness of the
measures being assessed by the national independent regulatory authority.  Significantly, Member States were precluded
from imposing stricter measures, save with respect to illegal content. These
conditions were expressed to be without prejudice to Articles 14 and 15 of the
e-Commerce directive and to respect the conditions set down by EU law including
those in the those provisions. Another theme here is the desirability of co-regulation
and reliance on codes of conduct, including Union-level codes of conduct.  Another question relates to the respective
roles of the NRAs, the contact committee (already established under the
existing directive) and ERGA, a new body set up to provide advice.  The detail on these points lies outside the
scope of this note.

Both
the Council and the European Parliament have put forward amendments, the
Council’s broadly tended to increase Member State’s freedom of action, the
European Parliament’s emphasising freedom of expression.  Both sets of amendments raise questions about
the applicability of the rules to commercial communications rules or the
general commercial communication rules to VSPs.

The
major point to note is the rejection of the Council of the maximum
harmonisation approach – changing the Commission’s exclusive list into an
indicative list and paragraph 5 now states that Member States may take more
detailed or stricter measures.  It seems
unlikely that the Council would accept the proposed limitation on Member State
freedom – especially as it borders areas close to the core of State competence
– the determination of criminal law and penalties. In a similar vein,
co-regulation is to refer to the sorts of measures VSPs are to use in paragraph
2 and not the obligation to protect in paragraph 1, and the requirement to
assess the appropriateness of measures entrusted to the NRA is linked to the
measures taken by the VSPs to comply with the obligations imposed under para 1,
not the obligations in para 1 itself. 
The Council also put forward the suggestion that proportionality should
take into account the size of the VSP as well as the harm that provider has
caused – though presumably this should not be read as a justification for a VSP
not applying measures at all.

The
Council also extended the scope of the areas in which VSPs will be required to
take measures- in essence linking these obligations with obligations found
elsewhere in Union law – so the Combatting
Terrorism Directive
(EU 2017/541), child pornography as understood in Directive
2011/93/EU
and racism/xenophobia as found in Framework
Decision 2008/913/JHA
.  In general,
both the Council and the Parliament proposed extending the protected
characteristics for hate crimes. In this context it should be noted that the
non-discrimination provision in Article 21 of the Charter contains a list of
protected characteristics and, if coherence with other elements of the law is a
driver, it would make sense to match that in this provision.  The Council’s list refers back to matters
which are criminalised as a requirement of EU law, but it is not expressly so
limited.  If the key concern is that the
public is to be protected from content the dissemination which constitutes an
activity which is a criminal offence under the EU law (by reference to the
relevant legal instruments), this leaves the question of where this leaves
Member States with regard to speech that is criminal by reference to domestic
law but not EU law derived, or even speech that is objectionable but not
criminal under national law.  It is
notable that there is no reference to copyright infringement (which may have
fallen within the catch-all phrase found in the initial Commission draft, ‘illegal
content’).

The
proposals of the Council and the Parliament aim to bring commercial
communications within scope.  The
obligations in relations to the harms are extended to include harms caused by
commercial communications and the general obligations found in Art 9(1) are to
be complied with too (See Art 28(a)(1)(1a)), though a distinction is made
between arrangements made by the VSPs as opposed to communications  arranged by third parties.  The rules in 9(1) deal with the
identifiability of advertising as being such, as well as contain some content
rules (eg respect for human dignity).  It
would seem that the ability to set stricter rules could come into play here
too.  The European Parliament takes a
broader view as to the rules to be applied, suggesting that Articles 9 and 10
should be complied with.  Article 9(2)
concerns the rules relating to “unhealthy food” and the development of codes of
conduct in relation to the marketing of alcoholic beverages to children.  Article 10 concerns rules relating to
sponsorship, but not product placement. 
On this basis it seems that some parts of the general framing will bleed
into the specific video-sharing section – the question to be resolved is how
much – and how much control VSPs can be expected to have over third party
content. If the point is that the requirement to be transparent about
advertising forms part of the VSP terms of use, how strongly would VSP
providers be expected to monitor and enforce compliance?  Further, how far would the inclusion of some
provisions on advertising mean that other EU or national rules are excluded –
presumably a similar approach to the question of the harmonised field as taken
in de Agostini could be envisaged here.

In
terms of measures to be selected, there is a question as to who much freedom
VSPs would have – and in particular whether such providers would be allowed to
filter/monitor all content ‘to be on the safe side’ – with an impact on all
users as well as the risk of over-control. 
The users’ privacy and freedom of expression are in issue, but the VSP
providers presumably have some choice about how they run their business. The
argument that Article 15 e-Commerce Directive precludes general monitoring does
not fit well here as Article 15 is directed to the Member State; the issue
refers to the VSP providers’ choice, and not what there are required to do by
the State. The e-Privacy Directive does not necessarily cover this point
either.  As a fall back, the balance will
presumably be found through the proportionality assessment to be carried out by
the NRA under Article 28a(2).

Article
28b deals with establishment of jurisdiction for the purposes of this section
of the directive.  A different approach
from that set out with regard to AVMS is to be adopted – that found in the
e-Commerce Directive.  This emphasises
the split between AVMS and the VSPs – highlighting the add-on nature of the VSP
provisions to the AVMSD.  Further
provisions deal with the position where there is not an establishment in the
EU.  Article 28b(2) ensures that the
rules in Art 28a(1) do not bite on the wrong company (e.g. the advertising unit
of a company group is established in the territory, but the primary service is
run from the States – a model adopted by e.g. Google and Facebook).  This has been amended by the Council to
ensure broad coverage so that where a non-EU VSP provider is part of a group
and any other company in the same group is established in the territory of a
Member State, that Member State may have jurisdiction, with hierarchy
provisions trying to deal with possible multiple claims to jurisdiction.  There are no equivalent provisions to the
anti-circumvention provisions applicable to AVMS, so it is unclear how
disagreements between member States as to the appropriate level and intensity
of regulation are to be resolved.

Photo credit: Thaivisa



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