Digital Single Market: briefly on updated audiovisual rules

The media landscape has shifted dramatically in less than a decade. Instead of sitting in front of the family TV, millions of Europeans, especially young people, watch content online, on demand and on different mobile devices.

The existing rules already cover traditional TV broadcasters and video on-demand services. In the updated rules the scope of application has been extended to also cover video-sharing platforms. In the revised Directive, a video-sharing platform is defined as a commercial service addressed to the public:

  • where the principal purpose of the service (or an essential functionality of such service ) is devoted to providing programmes and user-generated videos to the general public, in order to inform, entertain or educate;
  • which is made available by electronic communications networks; and
  • where the content is organised in a way determined by the provider of the service, in particular by displaying, tagging and sequencing;

This means that services such as YouTube will fall under the scope of the revised Directive. Audiovisual content shared on social media services, such as Facebook, will also be covered by the revised Directive. While newspaper websites remain outside the scope of the Directive, standalone parts of newspapers’ websites which feature audiovisual programme or user-generated videos will be considered as video-sharing platforms for the purpose of the AVMSD. However, any occasional use of videos on websites, blogs, news portals will be outside the scope of the Directive.

Member States should ensure that video-sharing platforms put in place measures to:

  • (i)   protect minors from harmful content (which may impair the physical, mental or moral development); access to which would have to be restricted; and
  • (ii)  protect the general public from incitement to violence or hatred and content constituting criminal offences (public provocation to commit terrorist offences, child pornography and racism or xenophobia).

Implementation of the new regime via co-regulation would be encouraged: the proposed rules provide basic requirements and partners who share responsibility and contribute to fulfilling the objectives.

The measures listed in the Directive that video-sharing platforms will need to put in place complement the E-Commerce Directive: this includes flagging and reporting mechanisms, age verification systems, systems to rate the content by the uploaders or users, or parental control systems, as well as clarification in the terms and conditions of the platform of a prohibition for users to share the content citizens should be protected from.

In addition, under the revised Directive, video-sharing platforms would also have to respect certain obligations for the commercial communications they are responsible for and to be transparent about commercial communications that are declared by the users when uploading content that contains such commercial communications.

Member States are able to adopt stricter rules for video-sharing platforms under their jurisdiction. Any measures under the new rules will need to remain compatible with the liability exemption for digital intermediaries provided in the E-Commerce Directive. The new Directive confirms and facilitates the country of origin principle in the following ways:

  • ensuring transparency among Member States on jurisdiction: it will be easier to determine the country whose rules apply to each provider, thanks to a database which will contain a list of providers under Member States’ jurisdiction. This information will be publicly available;
  • aligning the procedures in case of exceptions to the country of origin for TV broadcasting and video on-demand services;
  • introducing grounds for derogations for EU Member States as to serious risks to public health and public provocation to commit terrorist offences;
  • introducing a new urgency procedure for derogations in case of public security concerns and public provocation to commit terrorist offences.

Under the new rules, TV broadcasters will continue to be obliged to broadcast at least 50% share of European works (including national content) in viewing time. Video-on-demand services – which already have to promote European works under current rules – are subject under the revised Directive to more specific obligations: they need to ensure at least 30% share of European content in their catalogues and should give a good visibility (prominence) to European content in their offers.