By Maryant Fernández Pérez

The Audiovisual Media Services Directive (AVMSD) is currently being reformed. After going through several legislative stages, the AVMSD is now being negotiated in trilogues, that is, informal, secret negotiations between the European Parliament (representing citizens) and the Council (representing EU Member States), facilitated by the European Commission (representing EU interests). As part of the negotiations, a key question will have to be addressed: should some or all video-sharing platforms be covered by the AVMSD and, if so, how?

On the one hand, there are demands for holding video-sharing platforms like YouTube responsible for content (including legal content) that is published on their sites or apps because of the impact online content has on the public debate and our democracies. On the other hand, these platforms are not producing or publishing content, but only hosting it. The AVMSD covering platforms that are so radically different from those that the Regulation was originally created to regulate – cross-border satellite TV services – would not make sense, as EDRi’s position paper, published on 14 September 2017, argues.

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Video-sharing platforms, and social media generally, are not traditional media. While their activities influence (and even manipulate) the population, regulating video-sharing platforms as traditional media is not the solution to undesired impacts on our societies. When two services – linear broadcasting of editorially-controlled content and non-linear hosting of content produced by others – are significantly different, achieving a level playing field through a “one-fits-all” approach is not always possible. The consequences of getting it wrong can have a damaging effect on freedom of expression, competition, the fight against illegal material online and the protection of children in the online environment. At the Council meeting, seven Member States made unusually impassioned pleas to reject the proposed approach, mainly on grounds of freedom of expression. For these reasons, the deletion of the provisions that extend the scope of the AVMSD would be the most rational option, as the EDRi’s position paper suggests.

Failing deletion, EDRi recommends to clarify the definition of what constitutes “video-sharing platforms” and “user-generated content”. In addition, EDRi’s position paper asks for more predictability when asking companies to take action, to avoid abuses, ensure predictability and defend freedom of expression. For instance, some proposals on the table in the trilogue negotiations ask video-sharing platforms to restrict incitement to hatred based on political opinions or “any other opinions”. Asking platforms to delete hate speech based on “any other opinions” is likely to lead to arbitrary restrictions, and affect how we express ourselves online. Another reason to be cautious is that certain provisions would ask these companies to have a “self-regulatory” role in the “moral” development of children. Do we really want companies to decide what is good for the “moral” development of our kids?

Fighting against illegal hate speech, terrorism and child abuse is very important. However, asking companies, to decide what should be acceptable or not in our society is worrisome. Numerous examples demonstrate that content is being restricted in video-sharing and social media platforms without accountability or real redress. Creating a situation where video-sharing platforms are forced to regulate more of our communications and give themselves more leeway to decide on what content we can access or not, despite what the law deems to be illegal, will not be beneficial for the EU.

EDRi position on AVMSD trilogue negotiations (14.09.2017)
https://edri.org/files/AVMSD/edriposition_trilogues_20170914.pdf

ENDitorial: AVMSD – the “legislation without friends” Directive? (14.06.2017)
https://edri.org/avmsd-the-legislation-without-friends-directive/

Audiovisual Media Services Directive reform: Document pool
https://edri.org/avmsd-reform-document-pool/

(Contribution by Maryant Fernández Pérez, EDRi)

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