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