Will Current EU Legislation Radically Decrease the Amount of Online Content?
By Zsuzsa Detrekői
The reason behind the new AVMS directive and the amendment of copyright directive by the European Union might be easy to understand, however, it might change the system of content sharing operation and may end up in a huge decrease of user-generated content.
Two pieces of EU legislation that can have a huge impact on the availability of online content are on their way. The first one is the revised audiovisual media services (AVMS) directive that was adopted by the council (the final step in the legislative process) at the beginning of November 2018. The second one is the controversial amendment of copyright directive which is currently passing through formal Trilogue discussions that are expected to conclude in January 2019.
Both of them may basically change the logic of liability for user generated content and therefore may result in a radical decrease of content availability.
According to the “Safe Harbor” clause of Directive on electronic commerce, video sharing sites such as YouTube or DailyMotion qualify as intermediary (hosting) service providers and therefore exempt from liability for information stored including copyright infringing content. A so called “Notice and take down procedure” is set out in the Directive in order to achieve the removal of illegal content. Video sharing sites are immune from liability as long as they take down indicated content if they get a notice. The reason behind this immunity is the fact that mass amount of content generated by the users cannot be controlled by the service provider.
After having extended the scope of media regulation to non-linear audiovisual media services in 2010 — presumably due to the lobby of traditional television providers — EU has realized that not only VOD services meant competition to traditional TV channels. Given the fact that younger generations basically spend much more time on YouTube and social media sites, the new amendment of AVMS introduces the notion video-sharing platform service.
Although the directive declares that the new rules need to remain compatible with the liability exemption for intermediaries provided in the E-Commerce Directive, the directive requires video-sharing platform providers
a) to protect minors from user-generated videos which may impair their physical, mental or moral development,
b) to protect the general public from user-generated videos containing incitement to violence or hatred directed against a group of persons or a member of a group and user-generated videos containing content the dissemination of which constitutes a criminal activity.
Certain measures should be introduced by video-sharing platform providers to prevent availability of the above mentioned contents such as specific terms and conditions, reporting and flagging system, age verification systems etc. Flagging systems require providers to control the reported content, however ex-ante control or upload filtering is not approved based on AVMS. National Regulatory Authorities will be entrusted by the assessment of the measures, but it is not clear who will be responsible if an objectionable content stays available.
Current version of draft copyright directive goes much further. It includes the definition of online content sharing service provider which means
“a provider of an information society service one of the main purpose of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject-matter uploaded by its users, which the services optimizes and promotes for profit making purposes”.
The draft explicitly excludes “Safe Harbor” clause and it states that online content sharing service providers perform an act of communication to the public and therefore are responsible for their content, including the content generated by the users. It determines that online content sharing service provider shall obtain an authorization from the rightholders in order to make the content available to the public.
To sum it up: on one hand the draft copyright directive requires video sharing providers to ex-ante control and to clear rights of user-generated content to be uploaded. On the other hand revised AVMS refuses ex-ante control but expects providers to achieve that no objectionable user-generated content is available on their site.
Even if the reason behind the new provisions might be easy to understand, at the end of the day it might change the system of content sharing operation and may end up in a huge decrease of user-generated content. With some rare exceptions video sharing providers do not have resources to clear the rights of user-generated content and even if they had in many cases it is up to courts to decide if a given content falls into the fair use exemption or qualifies as a criminal activity.
A huge amount of valuable content might disappear from the internet. Free speech has lost a battle.
Obviously the directives will apply in EU states and non-EU services will be able to provide their services in the old fashioned way. Even EU providers who do not want to comply with the rules may leave EU and choose another jurisdiction. Those providers who stay in the EU may suffer from a disadvantage in competition.
New legislation may also lead to shutting down of hardly financed local video sharing sites without appropriate resources and may increase the market share of YouTube.[1]
[1] Google made a huge effort to lobby against the directive. Besides the protection of free internet the reason behind the lobby might have also been to avoid dominant market share that might trigger competition issues
Zsuzsa Detrekői is a TMT lawyer and the former general counsel of one of the biggest Hungarian online content providers. She is legal counsel of a major ISP in Hungary. She also provides legal support for the Association of Hungarian Content Providers. She wrote her PhD on “Online content and other internet related regulations”, in which she also focused on the topic of Network Neutrality.
