The Price of Regulation – Internet Freedom

The EU has long since its conception been introducing an ever-wider coverage of regulation on all facades of the European society – often for the common benefit of the same society, but that does not mean that it comes without oppositon. More regulation generally means less ‘freedom’, and it might play a significant role in generating the idea that ‘Brussels knows what’s right’, an idea many don’t agree with. So what’s going on right now in the video-sharing world?

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU (Audiovisual Media Services Directive – AVMS Directive) entered into force. Malta will need to transpose it into their national legislation until September 19, 2020.

First of all, one must note that the AVMS Directive is a major player in EU legislation, acting as regulation for the audiovisual media market. A former version of this directive entered into force around 30 years ago, intending to enable cross-border satellite broadcasting, which then developed along the decades to include on-demand services and video-sharing platforms. 

This is the centrepiece of what has raised a sense of alarm in the Maltese video-sharing community, spotted by Loving Malta, because although the scope of the AVMS Directive has not changed, the fact remains that where before there was a requirement for programs to be ‘comparable in form and content to that of television broadcasting’, this has not remained the case, opening the door for the directive to reach into other possible channels such as but not limited to, social media.* It is important to note that this does not mean that all promotional audiovisual content will qualify regulation.**

This extension to video-sharing platforms is done in major part to ensure that minor-protection measures reach out beyond what was covered by the previous AVMS, into what has now become a large part of everyday content consumption. Such protections include those from harmful content inciting hatred or violence. It also authorises a list of 10 tools that platform providers are to begin using to do so, including well-known measures such as age verification, parental control and the declaration of commercial content, most of which are already used due to past regulations – of course, one must note that national parliaments do have the power to apply even more stringent measures if they deem it is necessary to safeguard the spirit of the directive, but must also have a legitimate reason to do so.

One of the most significant changes contained in the revised AVMS, if not the most significant, is the fact that a video sharing platform provider will be subject to the media regulator. To be clear, a video sharing platform provider is the legal entity responsible for providing a video sharing platform service, which is a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union, of which the purpose or part of the purpose is to provide programmes, user-generated videos or both, for which it does not have editorial responsibility (such as YouTube). This in addition to the fact that the European Regulatory Group for Audiovisual Media Services (ERGA) will be significantly strengthened through the directive, which gives it more tasks following its establishment in 2014. 

As one can see when analysing the progression of directives like the AVMS, the path is pretty clear – that is the effort to eventually bring on-demand service providers to the same level of standard and regulation as those present for traditional broadcasters. Then as you move along the directive there are further clauses about advertising programme s on television and so on, but that’s outside of the purpose of this article, so if you’d like more info on any other part do not hesitate to contact us.

What are the key points being described by the EU as the aim of this directive? 

  • Social media platforms will be responsible for protecting minors and the general public from harmful content, violence, hatred and of course any other illegal content.
  • Advertising rules will be strengthened, and video-sharing platforms or platforms used for sharing video content will even be responsible for indicating when a video is created for advertising purposes.
  • Broadcasting services are to be given more freedom as to the time allocation for advertisements – so long as it occupies less than 20% of airtime during the day and primetime
  • ‘European works’*** will need to include at least 30% of their content as being Europe-centered, to promote the continent.

*C347/14, CJEU rules that a catalogue posted on a publisher’s website may be subject to AVMS Directive

**C132/17, CJEU rules that AVMS Directive could in certain cases not cover channels featuring promotional audiovisual content.

***Art.1 of the Audiovisual Media Services Directive states that European Works are;

  1. works originating in the Member States that European works are;
  2. Works originating in European third States party to the European Convention on Transfrontier Television of the Council of Europe and fulfilling the three conditions detailed in paragraph 3;
  3. Works co-produced within the framework of agreements concluded between the EU and third countries and fulfilling the conditions defined in those agreements.

OR

  1. Made within the framework of bilateral co-production agreements concluded between the Member States and third countries, provided that the Union co-producers supply a majority share of the production costs and the production is not controlled by the producer from the third country.

Written by: Gianluca Vella

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