Audiovisual Media Service Directive: Parliament Proposals Pose New Challenges to Free Expression

Written by Jens-Henrik Jeppesen

The European Parliament’s Culture Committee is preparing its report on the proposed Audiovisual Media Services Directive (AVMSD). The directive is part of the European Commission’s Digital Single Market (DSM) Strategy, intended to establish a fully European market in digital goods and services.

A serious problem that runs through several parts of the DSM Strategy is the move to push internet companies to police and monitor their platforms for content that may violate restrictions on various types of speech, such as hate speech’ or ‘glorification of terrorism’. Fundamentally, judges and courts, not companies, should determine when content violates the law, and only illegal content should be removed.

The AVMS Directive poses a direct threat to these [intermediary liability] protections.

It is essential for free expression that the liability protections in the E-Commerce Directive (ECD) be upheld and reinforced. These provisions bar Member States from imposing general monitoring obligations on companies that host content uploaded by others. They are essential to maintaining the open and free internet because they allow citizens to share views and information without prior censorship. This would not be possible without these protections. Internet companies would essentially become newspaper editors, maintaining strict control of all content on their platforms. The delicate and important balance in the ECD means that companies can host user content, provided that they take appropriate action when notified about illegal content on their platforms.

The AVMS Directive poses a direct threat to these protections. The proposal’s Article 28(a) requires ‘video-sharing platforms to protect all citizens from content containing incitement to violence or hatred’. It also instructs video-sharing platforms to ‘protect minors against content which may impair their physical, mental or moral development’. This provision is difficult to square with the ECD. It is hard to see how that differs from a duty to monitor, which is not permissible under the ECD.

Like the Commission’s EU Internet Forum, the AVMSD foresees ‘codes of conduct’ to coordinate company initiatives and policy. While these measures are well intentioned and aim to address real problems, they also risk being far too restrictive on people’s ability to express themselves freely on important and sometimes contentious political and social issues. This is especially acute when the measures are not subject to strict judicial supervision and transparency requirements.

Parliament should maintain, strengthen, and reinforce the protections in the E-Commerce Directive.

The challenges to free expression in the Commission’s proposed AVSMD text are serious enough but some amendments put forward in the Culture Committee’s draft report make them even worse. The report restructures the Commission’s text to make all types of companies, from traditional broadcasters to video-sharing platforms, subject to the same rules with regard to a range of issues, such as sponsorship and advertising. This means additional obligations to monitor user-generated content on video-sharing sites. The draft report maintains the Commission’s text on hate speech and protection of minors, but lets Member States impose stricter obligations and additional restrictions on video-sharing sites if they wish. This will likely mean obligations and restrictions that differ from Member State to Member State. How this furthers a Digital Single Market it not obvious. Finally, the report specifies that the AVMSD should be understood to trump the ECD, in the event of a conflict.

Rather than imposing additional restrictions on expression and obligations to monitor content uploaded by citizens, Parliament should maintain, strengthen, and reinforce the protections in the ECD. These protections are essential for the availability of a multitude of diverse online alternatives through which Europeans can freely express themselves.

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