AVMS Update Part III – European Commission guidance on video-sharing platforms

As per our previous updates, the European Commission (the Commission) has published two sets of non-binding guidelines to help Member States implement the revised Audiovisual Media Services Directive (AVMS Directive) into national law. The guidelines focus on the following areas:

1. European works; and
2. video-sharing platforms.

This article takes a look at the guidelines concerning video-sharing platforms. In case you missed our two previous updates focusing on the European works guidelines, find them here and here.

In addition you can find here our article on the UK’s Audiovisual Media Services Regulations 2020 which implement the revised AVMS Directive in the UK. The deadline for implementation of the revised AVMS Directive has recently passed (19 September) and the UK Regulations come into effect from 1 November 2020 (somewhat ironically the UK is one of the more progressed jurisdictions in terms of implementation).

Scope of the AVMS Directive from a Video-Sharing Perspective

The scope of the AVMS Directive has been extended to include certain obligations on video-sharing platform providers. Member States must ensure that video-sharing platform providers adopt ‘appropriate measures’ to protect minors from harmful content and all users from content that incites hatred or violence or content the dissemination of which constitutes a criminal offence. Video-sharing platform providers are also subject to certain obligations regarding audiovisual communications under the AVMS Directive.

A key question has been therefore, “what services will be caught by these provisions?”, which the guidelines seek to address.

Categories of Video-Sharing Platforms under the AVMS Directive

The AVMS Directive defines a ‘video-sharing platform service’ as a service where (i) the principal purpose of the service or of a dissociable section thereof or an (ii) essential functionality of the service, is devoted to providing programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility. The service must be made available by means of an electronic communications network and the organisation of the service determined by the video-sharing platform provider, including by automatic means or algorithms.

The guidelines only focus upon the application of the “essential functionality” criterion. Presumably, this is because the natural meaning of this criterion is less clear and is a departure from the wording of the previous version of the Directive.

Essential Functionality of the Video-Sharing Platform

The AVMS Directive states that, in order for the provision of audiovisual content to constitute an “essential functionality” of the service, such content must not be ‘merely ancillary to, or a minor part of’ the activities of the service. The Commission’s view is that, services that rely on audiovisual content as a ‘non-minor’ or ‘not merely ancillary component’ of their economic activity are more likely to expose users more to such content, thus justifying why these services should fall within the scope of the Directive. How these three criteria (i.e. (i) “principal purpose”, (ii) “dissociable section whose principal purpose” and (iii) “essential functionality”) interplay is not clear, although the Commission does clarify that they are not necessarily mutually exclusive, for example a service might fall within the both (i) and (ii).

The guidelines set out several indicators that national authorities should consider, which can be grouped into four main categories:

1. the relationship between the audiovisual content and main economic activities of the service;
2. quantitative and qualitative relevance of the audiovisual content available on the service;
3. monetisation of, or revenue generation, from the audiovisual content; and
4. the availability of tools aimed at enhancing the visibility or attractiveness of the audiovisual content.

For example, an indicator in the first category that a service is a video-sharing platform may be that the content uploaded or shared on the platform is “standalone” rather than with a view to facilitating an economic transaction and watched by users for their intrinsic information, entertainment or education value. Conversely, an e-commerce platform with videos showing users demonstrating a product for the purpose of driving sales would suggest that the platform should not be considered a video-sharing platform. An indicator from the third category that a service is a video-sharing platform could be that access to the content is subject to payment (e.g. via subscription or pay-per-view).

The indicators in the guidelines are clearly helpful as a starting point for national authorities but they also raise a number of questions. Take for instance some of the quantitative and qualitative indicators – the guidelines state that if the platform includes a “significant” amount of videos and/or users of the platform make “substantial” use of videos available on the platform, this suggests that the audiovisual functionality of the service is not likely to be merely ancillary to, or a minor part of, the activities of the service. But what exactly “significant” or “substantial” means remains open to interpretation.

The Commission does acknowledge the possibility of varying interpretations by Member States (particularly as the guidelines are not binding and the decision as to whether a service has the provision of audiovisual content as an essential functionality (or indeed meets any of the other criteria) lies with the Member State having jurisdiction over such service). As a result, the Commission suggests that national authorities consult with their regulatory counterparts in other Member States to support their assessment and in order to limit the risks of divergent interpretations.

Can a Social Media Service be Deemed a Video-Sharing Platform Service?

What is clear from the guidelines is that social media services can constitute video-sharing platform services and so fall within the scope of the AVMS Directive if they meet the relevant criteria. The Commission acknowledges that social media services have become an important medium by which users (particularly young people) access audiovisual content and the guidelines emphasise that because many social media services (i) compete for the same audiences and revenues as audiovisual media services and (ii) have a considerable impact (“in that they facilitate the possibility for users to shape and influence the opinions of other users”), they must comply with the same regulations where they meet the relevant criteria.

In particular, the Commission states that the essential functionality requirement should not be interpreted as requiring that the audiovisual content on the service be of such crucial commercial relevance that, in its absence, the service would not be able to function; such an interpretation would not guarantee an adequate level of protection for users and minors when they consume content on social media services.

There is an argument that this type of regulation of social media may stifle freedom of expression and may contribute to censorship.

It remains to be seen how strictly Members States implement the measures and what types of social media services may be deemed to constitute video-sharing platforms. In the UK, Ofcom is expected to issue guidance for service providers to help them understand whether they meet the definition of video-sharing platforms and fall under the UK jurisdiction later this year.