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 nine informal trilogue meetings up to and including
that of 26 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 (ie 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 six 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 with 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. That conclusion 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’ insofar as it
describes the format of the material, but is limited to such audiovisual
material that is ‘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. The 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 that 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 which
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.
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 by 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 – such as 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 containing
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 how 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 of
the 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 (eg 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 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.
Lorna Woods is Professor of Internet Law at the
University of Essex.
This article is an edited version of her blog post on the EU
Law Analysis blog: http://eulawanalysis.blogspot.co.uk/.
