On November 1, 2021, an amendment to the provisions of the Broadcasting Act (“Law”) entered into force in Poland. The new regulations result from the implementation of the latest version of the Audiovisual Media Services Directive (“SMAV Directive”) in the national legal order. The amendment to the AVMS Directive will introduce significant changes to the media services market, including new liability rules for providers of video-sharing platforms. However, the differences between the text of the AVMS Directive and the Polish Broadcasting Act may give rise to a number of interpretation issues.
Modification of the AVMS Directive – for what purpose?
As stated in the communication from the European Commission, the AVMS Directive aims to strengthen the protection of users, in particular minors, against 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 providers of video-sharing platforms.
In accordance with Article 28b(1) of the AVMS Directive, Member States must ensure that providers of video-sharing platforms under their jurisdiction adopt appropriate measures to protect: (i) minors against harmful content and (ii) all users against content inciting violence or hatred and content the dissemination of which constitutes an act constituting a criminal offense under Union law, an offense relating to child pornography and a racist and xenophobic offence. Video-sharing platform providers are also subject to certain obligations in terms of audiovisual commercial communications, or the obligation to be registered on a list maintained by a supervisory authority (in Poland, the list is maintained by the President of the National Audiovisual Council).
What does the above mean in practice? The most significant change is the introduction of a definition of a “video sharing platform” (“VSP”) and the obligations imposed on the provider of such a platform. This is to define the operating principles of websites, such as YouTube, giving access to content created by users.
What is a video sharing platform?
A video-sharing platform service is a website that collectively meets the following conditions: (i) it is a service provided electronically (i.e. provided by means of electronic communications networks ); (ii) the platform provider operates within the scope of its commercial activity; (iii) the primary purpose of the Service or any severable portion thereof or essential functionality of the Service is devoted to providing: (a) programs, (b) user-generated videos, or ( c) both, to the general public; (iv) the material is provided for the purpose of informing, entertaining or educating; (v) the video-sharing platform provider does not have editorial responsibility for the aforementioned content; (vi) the platform provider decides (including automatically or through algorithms) how such content is organized, including through display, tagging and sequencing.
It is apparent from the definition above that some social media sites fall under the new rules on video-sharing platforms if they meet certain criteria. This raises the question of what ‘editorial responsibility’, ‘main purpose or function of the service’, ‘program’, ‘user-created video’, ‘deciding how to organize the content’ actually mean. Most of the terms above have not been sufficiently defined in the AVMS directive or in the law; therefore, in order to interpret them correctly, it is necessary to refer to the case law of the CJEU and Polish courts, as well as to the views presented in legal doctrine.
Disclaimer of editorial liability
Much controversy is raised by the exclusion of the VSP provider from editorial responsibility for user-contributed material. On the one hand, there are voices in the discussion that such an action can contribute to the publication of illegal content by users and, at the same time, to the “passive” attitude of the provider who will not be responsible for content verification. On the other hand, the exclusion of editorial liability may be a consequence of the regulations contained in the E-Commerce Directive. According to article 14 of the aforementioned directive, the host is not responsible for the information stored at the request of the recipient of the service (i.e. for the content published by the users) if he has not became 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 only applies to programmes; 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-generated videos”. The above deviation is essential in practice. If one considers that the website administrator has editorial responsibility only with regard to the program (which – according to the definition of the program – is created solely by the provider, not the user), then in With regard to platforms that provide user-created videos but do not provide a program, editorial responsibility will not apply at all.
Notwithstanding the above, many questions have also been raised as to the activities undertaken by the provider which will trigger editorial liability within the meaning of the AVMS Directive. For example: is checking user content to ensure it complies with the law or the platform’s terms and conditions an editorial responsibility or not?
What does the Polish broadcasting law say?
The amendment to the Broadcasting Act does not facilitate the implementation of the new regulations by platform administrators. The 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 definition of PSV. The term “other transmissions” can be understood to mean virtually any type of user-contributed content, from photos to comments. The law 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 whether every website (platform) through which users can share comments or photos will be a video sharing platform within the meaning of the law?
As can be seen from the above considerations, the new regulations raise many doubts and questions related to their interpretation. It is likely that during the life of the new Broadcasting Act, case law and practice will develop certain standards of interpretation for unclear provisions. However, it can certainly be said that the market for media services is changing. Each administrator of a website (platform) providing content uploaded by users must determine whether – and if so to what extent – the new regulations will affect their activity.