The Audio-Visual Media Services Directive

For most of us, the way we consume traditional media has changed. Behind us are the days of audio-visual entertainment being delivered only by scheduled programming. Traditional methods of broadcasting have been shaken up by the rise of social media platforms, on-demand streaming services and other unprecedented audio-visual service providers. This note examines the adaptations the Audio-Visual Media Services Directive (AVMSD) has undertaken to match this market shift and its continued impact on audio-visual service providers moving forward.

What is it?

The AVMSD is the EU’s legal framework which establishes the foundational principles for a safe, open and diverse audio-visual media landscape across Europe. Prior to its amendment in 2018, the AVMSD was limited in its application to regulating traditional audio-visual media providers. However, the 2018 Directive extended its applicability to video-sharing platforms (VSPs).

Despite the UK’s departure from the EU on 31 January 2020, the Directive must still be implemented prior to the effective date of 19 September 2020. This is because the implementation date falls within the UK - EU transition period, throughout which most EU laws remain applicable in the UK.

Who does it cover?

Alongside covering traditional broadcasters, the amended AVMSD extends its applicability to VSPs. VSPs are defined as commercial services addressed to the public, containing the following features:

1. The platform stores large volumes of user-generated videos, for which the platform itself does not have editorial control;
2. The content of the platform is organised and shared in a way determined by the algorithms designed by the service provider (for sharing, tagging, commenting etc.);
3. The platform is accessible by electronic communications networks; and
4. The principal aim of the service being to provide user generated videos or other audio-visual content with the purpose of informing, entertaining or educating the general public.

The Directive will now therefore bring the likes of YouTube, Facebook, Netflix and Twitch within its grasps.

What does it require?

In relation to any audio-visual content, user generated videos or indeed any audio-visual commercial communications (effectively advertising), VPS’s must now put in place appropriate measures to, amongst others:

1. Protect the public at large from incitement of violence or other forms of hatred;
2. Protect the public at large from receiving the dissemination of content which constitutes criminal activity, namely, the provocation of terrorist activities, racism and xenophobia;
3. Protect minors from harmful content; and
4. Ensure the prohibition of advertising products such as cigarettes, electronic cigarettes and alcohol (where such marketing is tailored towards minors or excessive consumption).

It is important to note however, that the measures are drafted in such a way as to prevent the occurrence of harm, rather than to prevent the creation of harmful content itself.

The UK’s Response

The UK government had initially proposed to implement the AVMSD through regulation contained in its Online Harms White Paper, released in April 2019. However, the government swiftly concluded in July 2019 that an interim approach to enforce the Directive would be more effective. Consequently, the government has decided that it will implement the new VSP requirements in the most straightforward manner, in compliance with the minimum requirements of the AVMSD. As expected, Ofcom will be the national regulator and will have the power to appoint a co-regulator to cover VSPs.

What Next?

With the unprecedented inclusion of VSPs, we are likely to see increasing numbers of these platforms introduce, if they have not already done so:

1. Terms and conditions tailored to the prohibition of harmful content;
2. Requirements for content creators to declare whether their content contains audio-visual commercial communication;
3. Elaborate flagging mechanisms, potentially incorporating community driven review and subsequent content removal processes for any flagged content; and
4. Unprecedented age verification systems.

With the additional complication of ‘user generated content’ and lack of editorial control, VSPs are likely to face increased difficulty in ensuring that its community abide by the new requirements.

Whilst it remains unclear what form the practicalities of the regulation will take, the AVMSD does present an interesting advance in the commonly debated topic of social media censorship and regulation. Perhaps a precedent has been set by the EU, which other countries may follow, towards bringing the seemingly global platforms within the scope of traditional regulation.