DCMS consults on AVMS Directive
How will the updated provisions in the Audiovisual Media Services Directive (AVMSD) impact on video-sharing platforms (VSPs)?
The key takeaway
VSPs will now be required to protect minors from harmful content, monitor their sites for hateful content and introduce basic advertising standards.
The background
The AVMS Directive is the regulatory framework governing EU-wide coordination of national legislation on all audio-visual media. The Directive, which was initially created in 1989, aims to keep up to date with the impact of technological developments since 2010 when the Directive was last reformed. As viewers are moving from TV to digital mediums, the regulatory onus has also started to shift from TV to digital mediums and this Directive, alongside the introduction of the Online Harms White Paper (where there is some overlap), aims to ensure that consumers will be protected online.
Whilst video-on-demand services were included in the 2010 reforms, the new 2018 revisions increase the regulatory burden on these service providers, and in addition broadens the scope of these rules to video-sharing platforms. In addition, the new amendments are also focussed on the protection of minors and taking action against hate speech, and reinforcing regulations regarding the promotion and distribution of European content. Further, more detail is built into this Directive in respect of the country of origin principle, which determines which Member State’s regulations should apply to a business.
The DCMS has launched two separate consultations to address both the questions asked by the implementation of the Directive as a whole, in light of a number of possible Brexit scenarios (which closed on 22nd August), and the introduction of the expansion of the scope to VSPs (which closed on 17 September). This snapshot primarily addresses the issues raised in the second consultation regarding VSPs.
The development
Scope
In order to capture social media services in its scope, VSPs are defined (in the Directive’s recitals) as a service where the sharing of audio-visual content is an essential functionality. Therefore, Twitter, Facebook, Instagram, etc will fall under the rules of this Directive. The definition will further apply to businesses where video sharing is a “principal purpose” such as YouTube, Vimeo and Twitch, and adult websites showing user-generated content for profit, and live streaming sites.
The consultation suggests that Ofcom should provide guidance in determining the status of services.
Country of Origin
VSPs will only be subject to the regulations of the Member State in which they are located. The E-Commerce Directive states that the Member State that has jurisdiction will be the State where VSPs are already set up as an “information society service”. If this cannot be determined, the jurisdiction will be the Member State where a VSP's associated companies (such as subsidiaries, parent undertakings or other undertakings) are based. As a result, Google, Facebook and Twitter and many others will be based in Ireland and will be subject to its regulations.
Requirements placed on VSPs
The key fundamental obligations placed on VSPs (under Article 28a) are:
- to protect minors from programmes, user-generated videos and audiovisual commercial communications that might impair their physical, mental or moral development
- to protect the general public from programmes, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred or containing content which is a criminal offence (for example terrorist content or child pornography)
- to introduce basic standards around advertising (Article 9.1). This is to make sure that both their own advertising complies with these rules and that “appropriate measures” are taken for advertising content that is not directly under their control.
The Directive sets out a number of “appropriate measures” that Member States must ensure that VSPs comply with, such as operating an age verification system and a dispute resolution procedure.
In addition, the Directive states that a national regulatory authority must have the relevant powers to be able to require VSPs to take these “appropriate measures”. Finally, Member States must provide an out of court redress mechanism for users of VSPs to settle disputes relating to the Directive’s requirements.
The consultation suggests that Ofcom should be the national regulatory authority for VSPs and for Ofcom to defer to the ASA as the co-regulator on issues regarding VSP advertising requirements. In addition, the consultation proposes that Ofcom would provide statutory guidance on how to be compliant with “appropriate measures”.
Why is this important
This updated Directive will have a major impact on how VSPs are regulated. The obligations which VSPs are expected to comply with are broad and will impose greater burdens on VSPs to regulate their own content more thoroughly as well as start to implement processes to comply with the obligations.
Practical tips
Keep an eye out for any future developments and revisions of the amendments. VSPs should start to think about how they will be impacted by the Directive with regard to which jurisdiction they will be regulated by and what measures they must start to put in place to comply with the Article 28a obligations. With the introduction of the statutory duty of care for most online businesses, it is now even more important that you do not get caught out by harmful content on your site.