As part of a planned revision of the Audio Visual Media Services (“AVMS”) Directive (2010/13/EU), the European Commission has proposed to regulate ‘video-sharing platforms’ for the first time. If ultimately passed by the European Parliament, this will have various implications for video-sharing platform providers and Ireland may very well have a central role to play in regulating it.
European law is always seeking to strike the right balance between protecting internet users and those providing services or content on the internet. For some time now, those providing content on the internet have had the benefit of certain immunities from legal liability where they are only caching or hosting information and there is no requirement to monitor. To a large degree these immunities have encouraged and continue to encourage the provision of content-sharing platforms on the internet, including for user-generated content (“UGC”).
With this proposal for revisions to the AVMS Directive, the European Commission is seeking to regulate ‘video-sharing platform services’ in the interest of the protection of minors generally and the protection of all internet users from certain harmful content.
What is a ‘video-sharing platform service’?
A video-sharing platform service is a service:
- which involves the storage of a large amount of programmes or UGC for which the service provider does not have editorial control;
- on which the organisation of the stored content is determined by the service provider including by automatic means or algorithms (in particular, hosting, displaying, tagging and sequencing); and
- with its principal purpose or a section of it devoted to providing programmes and user generated videos to the general public in order to inform, entertain or educate.
This definition will likely catch mainstream video-sharing platforms but also websites, only part of which involves user-generated videos.
What are the new requirements?
Under the proposal, members states will have to bring in laws to ensure that video-sharing platform providers take appropriate measures to:
(i) protect minors from content which may impair their physical, mental or moral development; and (ii) protect all citizens from content containing incitement to violence or hatred directed against a group of persons or a member of such group defined by reference to sex, race, colour, religion, descent or national or ethnic origin.
How is compliance to be achieved?
The proposal would require the following measures to be taken, as appropriate:
- Defining and applying the above protections in service providers’ relevant terms and conditions;
- Establishing and operating mechanisms for users to report or flag videos to the service provider (and what that means) and to rate video content;
- Establishing and operating age verification systems and providing for parental control with respect of content which may impair the physical, mental or moral development of minors.
The proposal as implemented in national law must be overseen by an independent regulator and with appropriate complaint and redress mechanisms.
What this means
Companies that provide video-sharing platforms on the internet should carefully follow the development of the proposal. This is not just relevant to mainstream providers but also other websites that provide this type of service, such as newspaper websites.
From a service provision perspective, it is critical that although the proposal would involve certain measures to be taken, the relevant immunities mentioned above will continue to apply.
Lastly, due the territorial application of the proposal, it is possible that for a significant number of video-sharing platform providers in the EU, they will fall under the Irish implanting regulations if they have their head office here.