By Joe McNamee

On 25 April 2017, the European Parliament Committee on Culture and Education (CULT) will vote on its report on the European Commission’s proposal on Audiovisual Media Services Directive (AVMSD).

To understand just how confused the proposal is, it is worth understanding its history. In 1989, the EU adopted the “Television without Frontiers” Directive, to regulate cross-border satellite TV, covering issues such as jurisdiction and protection of minors. This Directive was out of date very quickly, leading to a revision that was adopted in 1997. That, in turn, was quickly out of date and revised in 2007. Then, in 2010, the EU adopted its fourth revision, this time trying to fit video on demand (VOD) services, such as Netflix, HBO Go, Amazon Video and others, into this legislation. In 2016, the European Commission proposed yet another revision, this time trying to squeeze yet another type of service – video-sharing platforms – into regulation designed in the mid-eighties for satellite TV.

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The current proposal, which proposes even more obligations on video-sharing platforms, is horribly contradictory and unclear. It does contain, however, a reasonable amount of comedy, which is an innovation for the EU institutions. For example, this legislation on “audiovisual” content covers, on the basis of Parliament compromise amendments, “a set of moving images”, which would cover, for example, an animated GIF.

Furthermore, it doesn’t cover all online video-sharing. For example, it does not cover video sections of news sites that are “indissociably complementary” to the site (borrowing wording from a Court of Justice of the European Union (CJEU) ruling in the New Media Online case). This means that video contents, featured on a news website, should only be regulated according to the Directive if they are not complementary to the journalistic activity of that publisher and are independent of written press articles on the site.

In a further (failed) effort to add to legal certainty, the Parliament’s draft compromise text also seeks to clarify the notion of “user-generated content” by removing from the Commission’s proposal the notion that it has to be user-generated. If the compromise text is adopted, the new definition of “user-generated” video would be “a set of moving images with or without sound constituting an individual item that is uploaded to a video-sharing platform”. This means that to be a “user-generated video”, it would not need to be user-generated nor, indeed, would it need to be a video.

On a more serious note, the proposal requires badly defined video-sharing platforms to take measures to protect children from content that would harm their “physical, mental or moral development” (“moral” added by the Parliament to various new parts of the Directive). This involves measures to restrict (undefined) legal content. The European Commission proposed also that the companies should enforce the law on incitement to racism and xenophobia. The Parliament’s suggestion is to extend law enforcement to areas where there is no law – such as incitement to hatred of “a person or group of persons defined by reference to nationality, sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion”. The Parliament also proposes setting up dispute resolution systems to verify decisions about which videos should stay online or not after accusations that they might lead to hatred of a person due to, for example, “any other opinion”. Video-sharing platforms will also need to make sure that video uploaders “declare” whether or not their videos contain advertisements, product placement or sponsored content.

It is clear that the broad restrictions of legal and illegal content that video-sharing platforms are meant to impose will lead to significant levels of removal of legal content, particularly due to the spectacularly unclear scope of their obligations. Restrictions on freedom of communication must, under the Charter of Fundamental Rights of the European Union just be “provided for by law” and necessary and genuinely meet objectives of general interest. The Commission’s text failed to achieve this minimum standard, while the draft compromise amendments to be voted on 25 April by the Parliament fall very far short of this standard. The only possible result of the legal chaos that this will create for video-sharing platforms is the deletion of a large amount of legal content, in order to minimise their exposure to possible state sanctions or other litigation.

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You can also read this article in German at https://netzpolitik.org/2017/audiovisuelle-medien-eine-neue-eu-richtlinie-wird-dazu-fuehren-dass-video-anbieter-massenhaft-legale-videos-loeschen/.

Television broadcasting activities: “Television without Frontiers” (TVWF) Directive – Summaries of EU legislation
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Al24101

Audiovisual Media Services Directive (2010/13/EU)
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:095:0001:0024:en:PDF

Revision of the Audiovisual Media Services Directive (AVMSD), 2016 proposal
https://ec.europa.eu/digital-single-market/en/revision-audiovisual-media-services-directive-avmsd

(Contribution by Joe McNamee, EDRi)

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