On 1 November 2021, an amendment to the provisions of the Broadcasting Act ("Act") entered into force in Poland. The new regulations are the result from implementation of the last version of the Audiovisual Media Services Directive ("AVMS directive") into the national legal order. The amendment to the AVMS directive will introduce significant changes to the media services market, including in particular new liability rules for video-sharing platform providers. However, differences between the text of the AVMS directive and the Polish Broadcasting Act may give rise to a number of interpretation issues.
Amending the AVMS directive - what purpose?
As indicated in the European Commission communication, the AVMS directive aims at reinforcing the protection of users, especially minors, from certain forms of illegal and harmful audiovisual content online. For this reason, the scope of the AVMS directive has been extended to impose certain obligations on video-sharing platform providers.
In accordance with Article 28b(1) of the AVMS directive, Member States must ensure that video-sharing platform providers under their jurisdiction adopt appropriate measures to protect: (i) minors from harmful content and (ii) all users from content containing incitement to violence or hatred and content the dissemination of which is an act constituting a criminal offence under EU law, an offence relating to child pornography and a racist and xenophobic offence. The video-sharing platform providers are also subject to certain obligations regarding audiovisual commercial communications, or the obligation to be entered on a list kept by a supervisory authority (in Poland, the list is to be maintained by the President of the National Broadcasting Council).
What does the above mean in practice? The most important change is the introduction of a definition of a "video-sharing platform" (“VSP”) and the obligations imposed on the provider of such a platform. The point is to define the principles of functioning of websites, such as YouTube, providing access to user-created content.
What is a video-sharing platform?
A video-sharing platform service is a website that collectively meets the following conditions: (i) it is an electronically provided service (i.e. provided by means of electronic communications networks); (ii) the platform provider operates as part of its business activity; (iii) the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing: (a) programs, (b) user-generated videos, or (c) both, to the general public; (iv) the materials are provided in order to inform, entertain or educate; (v) the video-sharing platform provider does not have editorial responsibility for the above-mentioned content; (vi) the platform provider decides (including automatically or through algorithms) how such content is to be organized, in particular by displaying, tagging and sequencing.
It follows from the above definition that some social networking sites fall under the new rules on video-sharing platforms if they meet certain criteria. This raises the question of what "editorial responsibility", "principal purpose or function of the service", "program", "user-created video", "deciding how to organize the content" means in practice. Most of the above terms have not been sufficiently defined in the AVMS directive or in the Act; therefore, in order to properly interpret them, it is necessary to refer to the case law of the CJEU and Polish courts, as well as to the views presented in the legal doctrine.
Exclusion of editorial responsibility
Much controversy is raised by the VSP provider's exclusion from editorial responsibility for material provided by users. On the one hand, there are voices in the discussion that such action may contribute to publication of illegal content by users and, at the same time, "passive" attitude of the provider who will not be responsible for verification of the content. On the other hand, the exclusion of editorial responsibility may be a consequence of the regulations contained in the e-commerce directive. According to the article 14 of the mentioned directive, the hosting provider is not responsible for the information stored at the request of the service recipient (i.e.: for the content published by users) if he was not aware of the illegal nature of the content.
Doubts also arise at the level of legal definitions. According to Article 1(c) of the AVMS directive, editorial responsibility applies only to programs; it does not cover "user-created video". Conversely, the literal wording of the definition of a video-sharing platform suggests that editorial responsibility applies to both programs and 'user-created videos'. The above discrepancy is essential in practice. If we consider that the administrator of the website has editorial responsibility only in relation to the program (which - according to the definition of the program - is created only by the provider, not the user), then in relation to platforms that provide user-created videos but do not provide program, editorial responsibility will not apply at all.
Notwithstanding the above, many questions have also been raised as to what activities undertaken by the provider will trigger editorial responsibility within the meaning of the AVMS directive. For example: does verification of user content to ensure that it complies with the law or the platform's terms and conditions constitute editorial responsibility or not?
What does the Polish Broadcasting Act say?
The amendment to the Broadcasting Act does not make it easy for platform administrators to implement the new regulations. Polish definition of a video sharing platform, provides that VSP includes - in addition to programs and user-generated videos - also "other transmissions ". It is difficult to find a justification for such an extension of the VSP definition. The term "other transmissions" can be understood as virtually any type of content provided by the user, from photos to comments. The Act does not contain a legal definition of other transmissions; neither does the AVMS directive, which does not use such a term at all. This raises the question of whether every website (platform) through which users can share comments or photos will be a video-sharing platform within the meaning of the Act?
As can be seen from the above considerations, the new regulations raise many doubts and questions related to its interpretation. It is likely that during the validity of the new Broadcasting Act, jurisprudence and practice will develop certain interpretation standards for unclear provisions. However, it can certainly be said that the media services market is undergoing major changes. Every administrator of a website (platform) providing content uploaded by users should consider whether - and if so to what extent - the new regulations will affect its business.