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#AVMSD Reform Series – #1: Video-Sharing Platforms

Cavalcanti C.V.

This is the first of a series of 10 posts regarding the EU Commission proposal of May 25, 2016 for a reform of the audio-visual media services Directive no. 2010/13/EU (“Proposal”, available here).  The Proposal is currently under scrutiny: in particular, the European Parliament’s Committee on Culture and Education on April 25, 2017, voted to amend the Proposal.  The subject matter is constituted by video-sharing platforms.MALANDRINO_cv

1. Video-Sharing Platforms: Current Regulatory Framework

The Italian AVMS Code – in accordance with the AVMS Directive – expressly states that video-sharing platforms do not fall within its scope of application (mainly because there would be no accountability / editorial responsibility in connection with the user-generated content).As a consequence, the regulatory framework on video-sharing platform is mainly laid down by the Directive no. 2000/31/EC (so called “E-Commerce Directive”), according to which video-sharing platform providers should be regarded as “hosting providers” and so they benefit from the “no general obligation to monitor” principle set forth by Section 15 of the same Directive.

2. Video-Sharing Platforms Under the Proposal

2.1 Introduction. The Aim of the Proposal According to the EU Commission

Mr. Andrus Ansip (Vice-President of the European Commission and Commissioner for the Digital Single Market) in his speech accompanying the publication of the Proposal argued that “[The] aim is that online platforms, the creative sector and the audiovisual sector become the driving forces of the digital economy; I do not want them to be weighed by useless or overdue standards. They need the certainty of a modern and equitable legal framework […]. This does not mean that the provisions currently in force need necessarily to be amended, such as those relating to the responsibility of online service providers.  It means deregulating, as necessary, traditional sectors such as broadcasting, or extending certain obligations to platforms and other digital operators to improve user’s protection and ensure equal conditions“.

2.2 Definition of “Video-Sharing Platform Service

In the scenario drawn up sub paragraph 2.1., the Proposal sets forth a brand-new definition of “video-sharing platform service” which falls within the scope of the AVMS Directive, i.e. the service which meets the following requirements:

(a) the service consists of the storage of a large amount of programmes or user-generated videos, for which the video-sharing platform provider does not have editorial responsibility;

(b) the organisation of the stored content is determined by the provider of the service, including by automatic means or algorithms, in particular hosting, displaying, tagging and sequencing;

(c) the principal purpose of the service is the provision of programmes and user-generated videos to the general public, in order to inform, entertain or educate;

(d) the service is made available by electronic communication networks.

2.3 “Video-Sharing Platform Service“: Regulatory Framework

The EU Commission remarked that “[it] will maintain the existing intermediary liability regime while implementing a sectorial, problem-driven approach to regulation”.

That said, Section 28a of the Proposal obliges video-sharing platform providers to:

(A) protect minors from content which may impair their physical, mental or moral development;

(B) protect all citizens from content containing incitement to violence or hatred directed against a group of persons or a member of such a group defined by reference to sex, race, colour, religion, descent or national or ethnic origin.

The features of such obligations depend on the type of content displayed and shall consist of (“as appropriate“):

(a) defining and applying in the terms and conditions of the video-sharing platform the concepts of incitement to violence or hatred as referred to in letter B) above (and of content which may impair the physical, mental or moral development of minors);

(b) establishing and operating mechanisms for users of video-sharing platforms to report or flag to the video-sharing platform provider concerned harmful content as per letters A. and B. above;

(c) establishing and operating age verification systems;

(d) establishing and operating systems allowing users of video-sharing platforms to rate the harmful content as per letters A. and B. above.  This is particularly worth noting, as rating systems currently in force are generally based on a self-assessment carried out by AVMS providers;

(e) providing parental control systems (in connection with content which may cause prejudice to minors);

(f) providing systems through which the users’ reporting as per letter b) above is actually enforced (or the reasons why it has not been enforced).

Such obligations are actually borne (directly) by Member States (and not by the providers) and shall be performed through a co-regulation procedure (i.e., codes of conduct).  This approach is aimed at ensuring a tailor-made regulation; however, it could determine regulatory asymmetries in this field, to be carefully assessed also in light of the rules on jurisdiction set out by the Proposal (which will be the subject matter of our next AVMS #AVMSD Reform Series post).

The latter conclusion has been also flagged by the European Audiovisual Observatory which, along with the European Platform of Regulatory Authorities (EPRA) on January 17, 2017 published the summary (available here) of a workshop entitled “Addressing Regulatory Asymmetries: Video-Sharing Platforms, Targeting On-Demand Services, and Services Outside the EU“.

We will keep you updated on the next steps of the ongoing legislative procedure. Feel free to contact us if you want to discuss the above!

saverio.cavalcanti@dlapiper.com / @Zagherio

dario.malandrino@dlapiper.com / @DarioMalandrin1