Sharing of video recordings through various internet platforms and video portals is a massively used media service, which so far has not been specifically regulated. It was affected only by the general rules of the European e-Commerce Directive – implemented in Act No. 480/2004 Coll., on Certain Information Society Services, in the Czech Republic.
These services could not have been included into traditional media services (television broadcasting, audiovisual media on-demand services) as these are characterised by the editorial responsibility of their provider. The provider has a decisive influence on the selection of programmes and other parts of broadcasting or services and their chronological order in the broadcasting programme schedule. This is not the case in respect of video sharing platforms. It is the users themselves who create the content for which the platform provider has no editorial responsibility.
Under Directive No. 2018/1808 amending Directive 2010/13 on Audiovisual Media Services, video sharing platforms have become a newly defined segment of services that was included in the European regulatory framework for audiovisual media services. As such, it is for the first time in the digital world that the content of certain digital platform is regulated on the European level. The regulation primarily affects large multinational players. It will be applicable also to national services and to some social media.
New rules will be transposed in the Czech legal system through the Act on Services of Video Sharing Platforms prepared by the Ministry of Culture. Czech lawmakers do not have much time left. It was determined that the period for the implementation would be till 19 September 2020. The legislative framework is based on the minimum harmonisation principle. It will depend on Czech lawmakers to decide what scope of the provided space for the regulation they will want to use.
What is a video sharing platform?
What internet platforms will be subject to regulation? The answer to this trivial question may not be quite that simple. It can be expected that national lawmakers will use the legal definition from the directive.
The definition is based on the fact that it is an information society service characterised by its purpose. The main purpose of the entire platform or the main purpose of its separable part, or its essential function, must be the provision of programmes or video recordings created by the general public users for the purposes of information provision, entertainment, or education through electronic communication networks.
At the same time, their order is determined by the video sharing platform provider, including through automated means or algorithms, primarily using displaying, marking, and determining of the order. An inseparable characteristic of this service is the fact that the platform provider bears no editorial responsibility for the content shared by the users. What digital platforms will be included? A typical example is YouTube, Vimeo, Dailymotion, and other similar platforms used for video downloading by their users.
The legal definition suggests its wide application range. In terms of its concept, it also affects social networks platforms, as users download or may download their videos to them. The directive (recital 5) implies that the social media service should be included, if the provision of programmes and video recordings created by its users is its essential function. This is the case when the audiovisual content is not a mere additional element to the activities of a particular social media services or is not its minor part.
To answer this question, the European Commission has recently published guidance for the practical use of the essential function criterion. Under this non-binding guidance, a number of indicators are distinguished that the national regulator should take into account. The share of audiovisual content in the entire service is to be considered. The definition will not be fulfilled, if it is only an additional element or a minor part of the activities (e.g. videos intended to promote economic transactions).
The regulation will not apply to videoclips that are part of the editorial content of electronic versions of newspapers and magazines, and to moving images such as graphic files (GIFs). Additionally, it will not apply to the activities of non-economic nature such as provision of audiovisual content on private websites and non-commercial interest associations.
Programmes and videos offered to the public by the services provider itself differ from the content offered by the users. Such content is not considered to be the video sharing platform service as it is not characterised by the absence of editorial responsibility. The platform provider bears responsibility for such content. In relation to the content of these programmes and video recordings, provisions of the Act on On-Demand Services will apply to the video sharing platform provider.
What rules will apply to platforms?
The purpose of the regulation is provide protection to users of these platforms on the same level as to other media. It lays down the rules for the advertising placed on the platforms both by the provider and the users themselves. Commercial communications placed by the provider to platforms must be easily recognisable. Hidden advertising is not allowed. No subliminal techniques may be used in commercial communications, it must not infringe on human dignity and must not have discrimination character. In addition, the advertising must not promote behaviour endangering health, safety or grossly threatening to the environment. Advertising of cigarette products, including electronic cigarettes, is banned. Advertising of alcoholic beverages and pharmaceuticals is limited.
The second group is protection against harmful content. First of all, it aims to protect children and minors. Platform providers must protect them against programmes and videos that may disrupt physical, mental, or moral development (particularly gratuitous violence and pornography).
All platform users must also be protected against videos and commercial communications with the content inciting violence or hate speech, or those that would constitute a crime, predominantly public inciting to commit a terrorist crime, crimes relating to child pornography and crimes relating to racism and xenophobia.
Platform providers under the supervision of the Radio and Television Broadcasting Council
Providers of the video sharing platform service become regulated entities. They have an obligation to report the operation of the service to the Radio and Television Broadcasting Council. The task of the Council will be to keep a list of video sharing platform service providers, supervise the fulfilment of obligations by these entities and impose remedial measures to them. The Council is supposed to monitor whether the providers have introduced functional measures for the protection against acts of violence and hate speech and for protection against incitement to terrorism and protection of minors against harmful content.
The regulated entity will be obliged to introduce protective measures in relation to programmes and videos created by the users of the video sharing platform. Protective measures include instruments for age verification, systems of parental control, systems for reporting of commercial communications and harmful content and other technical measures preventing the availability of these programmes. The Council may impose fines ranging from CZK 100,000 to CZK 500,000 for the breach of the imposed obligations.
Compared with the currently kept records of audiovisual media on-demand services providers, it is however expected that this activity will apparently be of marginal character. Providers of these services will be regulated based on the country of origin principle or based on the place where they are established. For this reason, it is estimated that rather a low number of providers will be subject to the Czech regulator.
Increased Responsibility of the Platforms for the Shared Content
Under the existing legislation based on the e-commerce directive, platforms have the obligation to remove illegal content only when they are notified of it. They are not required to technically check the content placed on the platforms before its publication.
The new regulation increases the responsibility for the placed content. Platform operators will have an obligation to check and remove the content inciting to violence and hatred. They have to additionally keep an eye on advertising communications contained in video recordings made by users. Even service users themselves will be able to report harmful content. These platforms should provide users who download videos with the functionality for reporting of harmful content. They should reflect the increased responsibility in their contractual conditions and require the compliance with the conditions from the service users.
A different issue is the observance of intellectual property rights. The platforms are not responsible for the fact that a user shared a video without the consent of its author. However, under the harmonised legislation that is reflected in the Czech Republic in the Act on Enforcement of Industrial Property Rights, they have an obligation to state the name and address of the person who downloaded the disputed video on the platform to an authorised person.
The information on persons breaching copyright on the platforms may be enforced by courts. However, the existing legislation has its shortcomings. According to the current judgment of the Court of Justice of the European Union regarding the case of Constantin Film Verleih of 9 July 2020, the legislation does not impose an obligation to court authorities to order a video sharing platform operator to provide an email address,
an IP address or a telephone number of the user who downloaded the film.
Nevertheless, member states have the possibility to modify this legislation and grant the right for obtaining more comprehensive information on the service users to intellectual property rights holders.
The article was published on the lupa.cz website on 20 August 2020.