Bringing the Web into the net
Upcoming changes to the Audiovisual Media Services Directive
Currently, streaming and video-on-demand (VOD) services are currently not subject to the same regulations as traditional television broadcasters. Video-sharing platforms fall outside the scope of media regulation entirely. This autumn, though, those rules are about to change across the EU and the UK.
With Netflix adding 16 million subscribers in the first quarter of 2020 and popular YouTube workout coach, Joe Wicks, starting his own show on Channel 4, the almost total lockdown of the world's population has led to a boom in the consumption of audio-visual entertainment.
At the same time, organisations across the arts, leisure and fitness industries are moving online to continue to provide a semblance of their usual services. Increasing numbers of recorded theatre productions, virtual gallery and museum tours, concerts and exercise classes are available to stream live and on-demand.
With online services already an established part of the media landscape, these responses to the COVID-19 crisis may be the acceleration of a long-term trend. So this is perhaps an opportune moment to reflect on forthcoming changes to the regulation of audio-visual media services in the EU.
These changes were adopted in a 2018 amendment to the EU's Audio-visual Media Services Directive 2010/13/EU ("AVMS Directive") and are due to be implemented by 19 September 2020.
The revisions were made against a background of rapidly changing viewing habits, the increasing importance of video clips or user-generated content, and new video-on-demand ("VOD") and video-sharing players becoming well established. They aim to:
The extension of regulation to VSPs, which includes standalone video-sharing sections of platforms whose overall focus may not be on audio-visual media or shared media content, is a significant development. VSPs, like social media platforms more widely, have historically operated on the basis that anyone is free to publish content with the platform exercising only minimal controls to enable takedown of illegal content. This lack of "editorial responsibility" is one of the reasons VSPs have so far escaped the clutches of media regulation.
As implemented currently by all EU member states, the AVMS Directive:
(a) What are VSP services?
VSP services are defined as services where the principal purpose of the service or of a dissociable section thereof on an essential functionality is devoted to providing programmes and/or user-generated content to the general public in order to inform, entertain or educate.
Unlike audio-visual media services already covered by the Directive, such platforms do not need to have "editorial responsibility" for the content they host. However, to fall within scope they must still determine how the content is organised (including by automatic means or algorithms).
This definition will undoubtedly capture apps and websites, like YouTube and Vimeo, whose main function (principal purpose) is the sharing of programmes and user-generated videos.
However, it will also catch other platforms whose main function is not the sharing of programmes or user-generated content, where either:
Whilst the intention is not to regulate social media platforms as such, social media platforms will need to review carefully how video content is presented and managed on their sites to determine whether they might fall within the revised AVMS Directive.
Video clips in newspaper websites and animated images such as GIFs are not however not covered.
Guidance from the European Commission on the concepts of "principal purpose", "dissociable section" and "essential functionality" is awaited.
(b) What rules will VSPs have to comply with?
The good news for VSPs that fall within the scope of the revised AVMS Directive is that the new rules do not impose the full panoply of media regulation on VSPs, nor require them to take editorial responsibility for the content on their sites (indeed, as noted above, the absence of editorial responsibility is one of the defining features of a VSP).
Specifically, VSPs will be required to put in place restrictive measures:
These measures should include, as appropriate, flagging, reporting and complaints-handling mechanisms, age verification systems, rating systems, parental control measures, and clarification of the terms of use of the platform.
Where content includes paid-for advertising, platforms should clearly inform users. In addition, subliminal communications are banned, as are all commercials for prescription drugs, cigarettes and tobacco products.
Alcoholic beverage adverts cannot be aimed at minors, nor can they encourage 'immoderate consumption'. Adverts must also not be prejudicial, or harmful to minors. Finally, codes of conduct should be developed with a view to protecting minors from adverts for foods that are high in fat, salt and sugars.
The details of the specific rules and the mechanisms for enforcing them are left to Member States to determine in relation to VSPs under their jurisdiction.
(c) Liability for content on VSPs under the new rules
The new measures that VSPs will be required to comply with relate to the organisation of the content, and not to the content as such.
VSP providers that are caught by the revisions to the AVMS Directive will continue to benefit from the "mere conduit" provisions of the E-Commerce Directive 2000/31/EC exempting them from liability for illegal information transmitted or stored in certain circumstances on their platforms.
Therefore, VSP providers will be responsible for the accessibility and availability of the content, but in general will remain free from liability for any unlawful content they might host.
That said there is clearly potential for regulation of VSPs under the revised AVMS Directive to come into conflict with the "mere conduit" provisions of the E-Commerce Directive. Where this happens the AVMS rules will prevail.
Where channels or any other audio-visual services under the editorial responsibility of a provider are offered on a VSP (e.g. YouTube channels), these can constitute audio-visual media services in their own right and may be regulated under the AVMS Directive. Although typically (in the UK at least) YouTube channels and the like have not hitherto been regulated, the recognition in the revised AVMS Directive that such channels might fall within the scope of media regulation is a further reflection of the crumbling boundaries between the different forms in which media content is provided.
(d) Jurisdiction over VSPs
A VSP which is caught by the AVMS Directive will be regulated in the Member State in which it is "established" for the purposes of the E-Commerce Directive. This is a less well-defined concept than the rules for establishment of media service providers in the AVMS Directive under which jurisdiction is determined by reference to specific factors including the location of the head office, where editorial decisions are made and the location of a significant part of the provider's workforce.
However, most existing VSPs established in the EU should be aware of where they are established for the purposes of the E-Commerce Directive, so it should be straightforward to identify the Member State of jurisdiction under the new rules in the AVMS Directive.
Importantly, jurisdiction over VSPs is extended to those that are not established in any Member State but who have a parent or sister company that is established in a Member State.
The UK government announced consultations on implementing the amendments made by the AVMS Directive and the VSP provisions in May and July 2019. In February 2020, the government published its response to those consultations. This acknowledged explicitly that the UK would implement the AVMS Directive, although the implementing legislation would be assessed at some point following the end of the transition period.
Extensive details are yet to be published, although it is likely that Ofcom's powers as currently applicable to VOD services will be extended to VSPs.
Content providers venturing for the first time into the realm of livestreaming or VOD services should be particularly mindful of the rules. The revised definition of "programme" can be interpreted more dynamically than before to reflect developments in broadcasting, leading potentially to more types of content and the platforms providing them falling within the rules. Equally, where a platform, or a distinct, standalone part, offers programmes or user-generated content, they may be caught.
For example, a cinema or theatre website that offers a separate section offering the latest productions to stream, could fall within the definition of an audio-visual media service, and be caught within the scope of the relevant national rules. Likewise, a platform that presents a variety of user-generated and programme content from different sources will likely meet the definition of a VSP.
The details of the new rules relating to VSPs remain to worked out by each EU Member State (and the UK). But the message is that VSP providers should prepare to implement more stringent measures to protect users from harmful content, where they have operations anywhere in the EU or the UK.
Currently, streaming and video-on-demand (VOD) services are currently not subject to the same regulations as traditional television broadcasters. Video-sharing platforms fall outside the scope of media regulation entirely. This autumn, though, those rules are about to change across the EU and the UK.
With Netflix adding 16 million subscribers in the first quarter of 2020 and popular YouTube workout coach, Joe Wicks, starting his own show on Channel 4, the almost total lockdown of the world's population has led to a boom in the consumption of audio-visual entertainment.
At the same time, organisations across the arts, leisure and fitness industries are moving online to continue to provide a semblance of their usual services. Increasing numbers of recorded theatre productions, virtual gallery and museum tours, concerts and exercise classes are available to stream live and on-demand.
With online services already an established part of the media landscape, these responses to the COVID-19 crisis may be the acceleration of a long-term trend. So this is perhaps an opportune moment to reflect on forthcoming changes to the regulation of audio-visual media services in the EU.
These changes were adopted in a 2018 amendment to the EU's Audio-visual Media Services Directive 2010/13/EU ("AVMS Directive") and are due to be implemented by 19 September 2020.
The revisions were made against a background of rapidly changing viewing habits, the increasing importance of video clips or user-generated content, and new video-on-demand ("VOD") and video-sharing players becoming well established. They aim to:
- create a regulatory level playing field between on-demand services such as Netflix and traditional television broadcasters as they compete head-to-head for the same audiences, and
- respond to the cultural and political debate across the EU about the responsibility of video-sharing platforms ("VSPs") for the content they host, and in particular the need to safeguard people from harmful content. Many of these platform services compete for the same audiences and revenues as audio-visual media services that are subject to extensive regulation. Further, they arguably have a considerable impact in the ways they enable content uploaders to shape and influence the opinions of viewers.
The extension of regulation to VSPs, which includes standalone video-sharing sections of platforms whose overall focus may not be on audio-visual media or shared media content, is a significant development. VSPs, like social media platforms more widely, have historically operated on the basis that anyone is free to publish content with the platform exercising only minimal controls to enable takedown of illegal content. This lack of "editorial responsibility" is one of the reasons VSPs have so far escaped the clutches of media regulation.
What is the AVMS Directive?
The AVMS Directive governs the EU-wide coordination of national legislation on all audio-visual media, including traditional scheduled television broadcasts, livestreamed programming, and video-on-demand services.As implemented currently by all EU member states, the AVMS Directive:
- establishes a country-of-origin principle within the EU for the regulation of audio-visual media services, so that media service providers are only regulated in the member state in which they are established;
- requires EU member states to allow freedom of reception and retransmission of audio-visual media services across borders within the EU; and
- sets baseline content standards for audio-visual media services within the EU and requires a degree of promotion of European works.
Key changes to the AVMS Directive
1. A more flexible definition of "programme"
The AVMS Directive currently applies to "programmes", whose form and content 'are comparable to the form and content of television broadcasting.' In effect, the audio-visual content must be "TV-like" in order to be covered by the Directive.
The revised Directive will remove this requirement that programmes be comparable to television broadcasting, thereby breaking the link between broadcasting regulation and TV-like content.
2. Increased regulatory burden on VOD services
Whereas the current version of the Directive takes a two-tier approach to regulation, with a heavier burden on broadcast television services, under the revised Directive there will be parity between the way television and VOD services are treated.
Strict rules regarding the protection against harmful content will apply to all audio-visual media services, with Member States required to ensure that such services do not contain any incitement to hatred directed against a group of persons or a member of a group, or public provocation to commit a terrorist offence.
Service providers will also be required to ensure content that might seriously impair the physical, mental or moral development of minors is only available in a way that minors will not normally hear or see it. Possible measures may include selecting the time of the broadcast, age verification tools or other technical measures (such as PIN codes, automatic filtering systems on services aimed at children, and clear programme labelling).
Further, the same rules that regulate advertising, sponsorship, product placement and accessibility of content will apply to all "programme" services, whether linear or on-demand. In addition VOD providers will have to secure a 30% share of their catalogues for European works and ensure prominence of those works.
3. Extension of the AVMS Directive to VSPs
(a) What are VSP services?
VSP services are defined as services where the principal purpose of the service or of a dissociable section thereof on an essential functionality is devoted to providing programmes and/or user-generated content to the general public in order to inform, entertain or educate.
Unlike audio-visual media services already covered by the Directive, such platforms do not need to have "editorial responsibility" for the content they host. However, to fall within scope they must still determine how the content is organised (including by automatic means or algorithms).
This definition will undoubtedly capture apps and websites, like YouTube and Vimeo, whose main function (principal purpose) is the sharing of programmes and user-generated videos.
However, it will also catch other platforms whose main function is not the sharing of programmes or user-generated content, where either:
- a dissociable (separate) section of the platform is devoted to such content, or
- an essential functionality of the platform is devoted to such content.
Whilst the intention is not to regulate social media platforms as such, social media platforms will need to review carefully how video content is presented and managed on their sites to determine whether they might fall within the revised AVMS Directive.
Video clips in newspaper websites and animated images such as GIFs are not however not covered.
Guidance from the European Commission on the concepts of "principal purpose", "dissociable section" and "essential functionality" is awaited.
(b) What rules will VSPs have to comply with?
The good news for VSPs that fall within the scope of the revised AVMS Directive is that the new rules do not impose the full panoply of media regulation on VSPs, nor require them to take editorial responsibility for the content on their sites (indeed, as noted above, the absence of editorial responsibility is one of the defining features of a VSP).
Specifically, VSPs will be required to put in place restrictive measures:
- to protect minors from harmful content, and
- to protect the general public from incitement to violence or hatred and content constituting criminal offences.
These measures should include, as appropriate, flagging, reporting and complaints-handling mechanisms, age verification systems, rating systems, parental control measures, and clarification of the terms of use of the platform.
Where content includes paid-for advertising, platforms should clearly inform users. In addition, subliminal communications are banned, as are all commercials for prescription drugs, cigarettes and tobacco products.
Alcoholic beverage adverts cannot be aimed at minors, nor can they encourage 'immoderate consumption'. Adverts must also not be prejudicial, or harmful to minors. Finally, codes of conduct should be developed with a view to protecting minors from adverts for foods that are high in fat, salt and sugars.
The details of the specific rules and the mechanisms for enforcing them are left to Member States to determine in relation to VSPs under their jurisdiction.
(c) Liability for content on VSPs under the new rules
The new measures that VSPs will be required to comply with relate to the organisation of the content, and not to the content as such.
VSP providers that are caught by the revisions to the AVMS Directive will continue to benefit from the "mere conduit" provisions of the E-Commerce Directive 2000/31/EC exempting them from liability for illegal information transmitted or stored in certain circumstances on their platforms.
Therefore, VSP providers will be responsible for the accessibility and availability of the content, but in general will remain free from liability for any unlawful content they might host.
That said there is clearly potential for regulation of VSPs under the revised AVMS Directive to come into conflict with the "mere conduit" provisions of the E-Commerce Directive. Where this happens the AVMS rules will prevail.
Where channels or any other audio-visual services under the editorial responsibility of a provider are offered on a VSP (e.g. YouTube channels), these can constitute audio-visual media services in their own right and may be regulated under the AVMS Directive. Although typically (in the UK at least) YouTube channels and the like have not hitherto been regulated, the recognition in the revised AVMS Directive that such channels might fall within the scope of media regulation is a further reflection of the crumbling boundaries between the different forms in which media content is provided.
(d) Jurisdiction over VSPs
A VSP which is caught by the AVMS Directive will be regulated in the Member State in which it is "established" for the purposes of the E-Commerce Directive. This is a less well-defined concept than the rules for establishment of media service providers in the AVMS Directive under which jurisdiction is determined by reference to specific factors including the location of the head office, where editorial decisions are made and the location of a significant part of the provider's workforce.
However, most existing VSPs established in the EU should be aware of where they are established for the purposes of the E-Commerce Directive, so it should be straightforward to identify the Member State of jurisdiction under the new rules in the AVMS Directive.
Importantly, jurisdiction over VSPs is extended to those that are not established in any Member State but who have a parent or sister company that is established in a Member State.
UK implementation of the new rules
The UK left the EU in 31 January 2020 and is no longer a Member State. However, it is currently in a "transition period" during which most provisions of EU law continue to apply to it, including the amended AVMS Directive.The UK government announced consultations on implementing the amendments made by the AVMS Directive and the VSP provisions in May and July 2019. In February 2020, the government published its response to those consultations. This acknowledged explicitly that the UK would implement the AVMS Directive, although the implementing legislation would be assessed at some point following the end of the transition period.
Extensive details are yet to be published, although it is likely that Ofcom's powers as currently applicable to VOD services will be extended to VSPs.
Conclusion
The changes to the AVMS Directive reflect the greater convergence of – and potential for competition between – broadcast television services and online audio-visual media, whether user-generated or "programme" content. The revisions recognise the greater diversity of content consumed by users, and the need to regulate new types of audio-visual media.Content providers venturing for the first time into the realm of livestreaming or VOD services should be particularly mindful of the rules. The revised definition of "programme" can be interpreted more dynamically than before to reflect developments in broadcasting, leading potentially to more types of content and the platforms providing them falling within the rules. Equally, where a platform, or a distinct, standalone part, offers programmes or user-generated content, they may be caught.
For example, a cinema or theatre website that offers a separate section offering the latest productions to stream, could fall within the definition of an audio-visual media service, and be caught within the scope of the relevant national rules. Likewise, a platform that presents a variety of user-generated and programme content from different sources will likely meet the definition of a VSP.
The details of the new rules relating to VSPs remain to worked out by each EU Member State (and the UK). But the message is that VSP providers should prepare to implement more stringent measures to protect users from harmful content, where they have operations anywhere in the EU or the UK.