Professor Lorna Woods, University of Essex

The Audiovisual Media Services Directive (AVMSD) has been undergoing revisions since 2016, sparking debate about how to update it for the digital age. While the Council and European Parliament generally agree that video-sharing platforms (VSPs) need some regulation, they differ significantly on the specifics. This disagreement is evident in the ongoing trilogue negotiations, where even accessing agreed-upon positions has proven difficult due to the influence of interest groups concerned about advertising regulations.

This note examines one of the more significant changes proposed by the Commission: extending the AVMSD’s scope to include VSPs. The key question is not whether to regulate these platforms but how to do so effectively.

Defining a Video-sharing Platform

The proposed Article 1(1)(aa) defines a “video-sharing platform” (VSP) and “video-sharing platform provider,” mirroring the existing framework for audiovisual media services. A VSP is defined by six key elements: operating as a service under the Treaty on the Functioning of the European Union (TFEU), storing substantial amounts of programs, lacking editorial responsibility for the stored content, organizing the stored content (automatically or otherwise), primarily serving the general public by providing programs and user-generated videos for informational, entertainment, or educational purposes, and being accessible via electronic communication networks.

This definition, while seemingly comprehensive, presents challenges in distinguishing VSPs from other online services, especially as technology evolves. For instance, it is unclear whether platforms requiring minimal registration are truly “open to the general public.”

The Council and European Parliament have different perspectives on this definition. The Council aims to narrow the scope by removing the “large amount” requirement and focusing on “making available” rather than “storage.” Conversely, the Parliament wants a broader definition, suggesting that VSPs don’t merely store but actively provide videos to the public. These disagreements highlight the ongoing debate about the reach of the AVMSD in the digital realm.

The requirement for videos to “inform, entertain, or educate” echoes the AVMSD’s definition of audiovisual media services. However, a recent Court ruling in the Peugeot case determined that self-promotional channels on YouTube did not meet this criterion. This decision raises questions about the applicability of advertising rules to user-generated content and the role of general consumer protection regulations in this context.

The proposed definition of “user-generated video” in Article 1(1)(ba) aligns with the definition of “programme” but focuses on audiovisual content created and/or uploaded to a VSP by users. Notably, this definition doesn’t require users to upload only their own content, potentially encompassing pirated material. While the European Parliament suggests minor modifications, the Council proposes limiting “user-generated” content to that created by the user, seemingly excluding pirated content. However, this distinction between “creating” and “generating” may be insignificant since the regulatory focus is on the platform itself, not exclusively user-generated content. Ultimately, the impact of this change on platforms primarily hosting pirated videos remains unclear.

Regulatory Framework for VSPs

Article 28a outlines the specific regulations for VSPs, while Article 28b addresses group companies and responsibility attribution. The intent is to apply only these specific rules to VSPs, not the broader AVMSD provisions, though the application of advertising regulations remains ambiguous.

The Commission proposes requiring VSP providers to implement “appropriate measures” to protect minors from harmful content and all citizens from content inciting violence or hatred based on protected characteristics. The initial proposal offered an exhaustive list of potential measures, including terms of use, age verification, rating systems, and flagging mechanisms. It emphasized co-regulation and encouraged Member States to rely on codes of conduct, limiting their ability to impose stricter measures except for illegal content.

However, both the Council and the Parliament propose amendments. The Council seeks to grant Member States more freedom by changing the Commission’s exhaustive list into an indicative one and allowing them to implement stricter measures. In contrast, the Parliament emphasizes freedom of expression. Both sets of amendments raise questions about the applicability of existing and future commercial communication rules to VSPs.

The Council’s rejection of the maximum harmonization approach signifies a shift towards greater national autonomy. They advocate for considering the VSP’s size and potential harm caused when determining proportionality. This approach, however, shouldn’t exempt VSPs from implementing any measures.

Furthermore, the Council proposes expanding the areas requiring VSP action, aligning them with existing EU legislation. These include measures to combat terrorism, address child pornography, and combat racism and xenophobia. Notably, copyright infringement is not explicitly mentioned. This focus on EU-defined criminal offenses raises questions about how Member States can address content deemed criminal or objectionable under national law but not explicitly covered by EU legislation.

Both the Council and the Parliament aim to bring commercial communications within the scope of the AVMSD, requiring VSPs to comply with general obligations regarding advertising transparency and content. While both institutions support applying existing advertising rules to VSPs, they differ in their scope. The European Parliament favors broader application, including provisions related to unhealthy food marketing and sponsorship transparency. This difference in approach raises questions about how much control VSPs should have over third-party content, particularly advertising. For instance, it’s unclear how rigorously VSPs would be expected to monitor and enforce compliance with advertising regulations, especially for content generated by third parties.

The proposed regulations also raise concerns about the balance between protecting users and respecting their freedom of expression. While VSPs need to take measures to mitigate harm, excessive filtering or monitoring could impact all users and potentially lead to over-control. The applicability of the e-Commerce Directive’s restrictions on general monitoring is debatable in this context, as it primarily addresses Member States’ actions, not the independent choices of VSP providers. The e-Privacy Directive also doesn’t offer clear guidance on this issue. Consequently, achieving a balance likely relies on the proportionality assessment conducted by the national regulatory authorities (NRAs) under Article 28a(2).

Finally, Article 28b establishes jurisdiction for this section of the AVMSD, adopting the approach outlined in the e-Commerce Directive. This distinction emphasizes the separate treatment of VSPs from traditional AVMS. Additional provisions address non-EU VSP providers operating within the EU, outlining jurisdiction based on the establishment of any group company within a Member State. However, unlike the provisions for AVMS, there are no anti-circumvention measures in place for VSPs. This lack of clarity raises concerns about resolving potential disagreements between Member States regarding the appropriate level of regulation for VSPs.

Photo credit: Thaivisa