On 25 April 2017, the Culture & Education (CULT) committee of the European Parliament adopted its draft Opinion and corresponding compromise amendments on the European Commission’s proposal to review the Audiovisual Media Services Directive (AVMS Directive). The Commission’s aim is to apply the current AVMS Directive, covering television and video-on-demand (VOD) services, to video-sharing platforms (VSPs) such as YouTube. In other words, the review of the broadcasting law is an attempt to extend the rules applying to traditional broadcasting to a broad set of new online services. Despite the apparent improvements on intermediary liability protection provisions, a concern we had previously highlighted, the text adopted in CULT remains far from satisfactory, raising new concerns around the take down of legal content, and thus threatening freedom of expression online.
While the Commission extended the material scope of the current Directive to ‘video-sharing platforms’, the CULT committee has further broadened the scope to encompass social media platforms. Among other cumulative criteria, the adopted Report has amended the definition of VSPs to include platforms that “make available” (as oppose to “store”) programmes or user-generated videos (UGCs) and that “play a significant role” in providing this content. Thus, videos which are shared on social media, such as GIFs and livestreaming (as further proposed by Council), would be subject to the same measures as television regarding protection of minors and protection against hate speech. In addition, the text adopted by CULT creates uncertainty around the concept of UGC which it defines as “a set of moving images with or without sound constituting an individual item that is uploaded to a video-sharing platform”. In its amendment, Parliament has stripped away the requirement of being created and/or uploaded by a user to qualify as UGC. How does this equate to the general understanding of UGC? Overall, this is an example of the lack of understanding of technical aspects of the digital environment and highlights the need for an impact assessment on the expansion in scope to evaluate the legal, administrative and market impact before going ahead. This has been pointed out rightly by seven Member State delegations in a joint non-paper addressed to the EU Council Presidency.
It is important to highlight differences between different types of services. Traditional broadcasters and video-on-demand platforms have full ex ante editorial control, while VSPs and social media platforms do not. Many broadcasters use scarce resources, such as spectrum, and many receive state funding for public service content. There are justifiable restrictions on content that can be published by public service broadcasters that receive state funding. Applying those same restrictions to VSPs and social media sites is an entirely different proposition and would have significant consequences for free expression online. The proposal should recognise these differences. Social media sites and VSPs are intermediaries, and as such are required to respond to notifications of illegal content on their platforms. This is in line with the e-Commerce directive and preserves the openness of internet platforms to many forms of expression, while at the same time providing for removal of content that is deemed to be illegal.
In the context of the broad definition of video-sharing platforms described above, the proposal would require these platforms to take measures to protect children from content that would harm their “physical, mental or moral development”. The “moral” element has been added by Parliament in a horizontal amendment. First of all, this would imply content which is not necessarily illegal, but that are deemed harmful by Member States as they are the ones who would decide at national level what impairing “moral development” of children means. This opens up the possibility for Member States to censor perfectly legal content while meddling in parental-child relationships, in what concerns their ‘moral’ upbringing, which seems to include ideological traits. It’ll be for the service providers to make the call to regulate such content via their terms of service, for example. The latest Twitter Transparency Report which we recently analysed nonetheless demonstrates the different ways governments exercise pressure to restrict content online.
The uncertainty in the scope of this obligation will most likely lead to VSPs taking down significant amounts of legal content in order to minimise the risk of being sanctioned or other forms of litigation. An example of this is the recently proposed German law aimed at limiting the spread of hate speech and “fake news” on social media sites (NetzDG), which as previously highlighted, would create incentives for companies to censor a broad range of speech.
On a brighter note, the CULT committee sent out a clear message against upload filtering of content by stating that measures imposed on VSPs by Member States “should not lead to ex-ante control or filtering of content”. We hope, and it would only makes sense, to see the same line of reasoning in the copyright reform debate, where we advocate against the proposal forcing internet intermediaries to use content identification technology to prevent users from uploading unlicensed copyrighted content. This type of obligation severely undermines the intermediary liability protections set out in the e-Commerce Directive. But let’s not count it victory yet on this front, since the CULT report also takes out the provision prohibiting Member States to impose stricter measures than those listed in the Directive, opening up the possibility of imposing more obligations. There would also continue to be risk of conflict with the e-Commerce Directive, since the potential expansion of scope to include livestreaming, as proposed by the Council Presidency, would de facto imply a general ex-ante monitoring obligation.
The text adopted by CULT and the direction the copyright directive debate is taking leaves much to be desired. Aside from the free speech concerns, imposing prescriptive obligations on certain online services undermines the incentive for internet companies to innovate and compete in Europe and globally. Moreover, full compliance with the proposed measures represents an additional barrier to enter the market, particularly for start-ups.
The next step is for the Council of the EU, representing the interests of the EU Member States, to adopt its first negotiating position by the end of May 2017, after which they will have to negotiate with Parliament to determine the future path of European audiovisual rules. Stay tuned.