With Netflix adding 16 million subscribers in the first quarter of 2020 and popular YouTube workout coach, Joe Wicks, starting his own show on Channel 4, the almost-total lockdown of the world’s population has led to a boom in the consumption of audio-visual entertainment.

At the same time, organisations across the arts, leisure and fitness industries are moving online to continue to provide a semblance of their usual services.

Increasing numbers of recorded theatre productions, virtual gallery and museum tours, concerts and exercise classes are available to stream live and on-demand.

With online services already an established part of the media landscape, these responses to the Covid-19 crisis may be the acceleration of a long-term trend. More than ever, the lines are blurring between traditional channels that broadcast programmes and online platforms that stream content.

Currently, streaming and VoD services are currently not subject to the same regulations as traditional television broadcasters. Video-sharing platforms fall outside the scope of media regulation entirely. This autumn, though, those rules are about to change across the EU and the UK, notes a report from law firm Fieldfisher, co-authored by  Nick Pimlott, Partner, Competition, Regulatory and Trade, Jonathan Peters, Solicitor, Competition, Regulatory and Trade, and Caroline Ellard, Solicitor, Competition, Regulatory and Trade.

These changes were adopted in a 2018 amendment to the EU’s Audio-visual Media Services Directive 2010/13/EU (AVMS Directive) and are due to be implemented by September 19th 2020.

The adopted revisions were against a background of rapidly changing viewing habits, the increasing importance of video clips or user-generated content, and new video-on-demand (VoD) and video-sharing players becoming well established.

Many of these platform services compete for the same audiences and revenues as audio-visual media services that are subject to extensive regulation. Further, they arguably have a considerable impact in the ways they enable content uploaders to shape and influence the opinions of viewers.

The changes to the AMVS Directive aim to create a regulatory ‘level playing field’ between on-demand services such as Netflix and traditional television broadcasters as they compete head-to-head for the same audiences. The changes also respond to the cultural and political debate across the EU about the responsibility of video-sharing platforms (VSPs) for the content they host, and in particular the need to safeguard minors from harmful content.

Key changes are:

• Breaking the link between media regulation and television broadcasting with a more flexible and dynamic definition of ‘programme’ no longer linked to television-like services
• Alignment of the rules governing harmful content, advertising, sponsorship, product placement and accessibility. VoD providers will also have to secure a 30 per cent share of their catalogues for European works and ensure prominence of those works
• Extension of regulation to VSPs i.e., platforms where the principal purpose of the service or of a dissociable section thereof on an essential functionality is devoted to providing programmes and/or user-generated content to the general public, and the organisation of that content is determined by the platform provider (including by automatic means or algorithms)

Content providers venturing for the first time into the realm of livestreaming or VoD services should be particularly mindful of the rules. The revised definition of ‘programme’ can be interpreted more dynamically than before to reflect developments in broadcasting, leading potentially to more types of content, and the platforms providing them, falling within the rules.

For example, a cinema or theatre website that offers a separate section offering the latest productions to stream, could fall within the definition of an audio-visual media service, and be caught within the scope of the relevant national rules. Likewise, a platform that presents a variety of user-generated and programme content from different sources will likely meet the definition of a VSP.

The extension of regulation to VSPs, which includes standalone video-sharing sections of platforms whose overall focus may not be on audio-visual media or shared media content, is a significant development. VSPs, like social media platforms more widely, have historically operated on the basis that anyone is free to publish content with the platform exercising only minimal controls to enable takedown of illegal content. This lack of ‘editorial responsibility’ is one of the reasons VSPs have so far escaped the clutches of media regulation.

Social media platforms generally are not intended to fall within the new rules, but since most social media platforms provide video-sharing capability, they could be caught to the extent that video-sharing is a dissociable section or essential functionality of the platform. Much will depend on how these concepts are interpreted in practice.

The new measures that VSPs will be required to comply with relate to the organisation of the content, and not to the content as such. VSPs will be required to put in place restrictive measures to protect minors from harmful content, and to protect the general public from incitement to violence or hatred and content constituting criminal offences.

These measures might include: flagging, reporting, and complaints-handling mechanisms, age verification systems, rating systems, parental control measures, and clarification of the terms of use of the platform.

Paid-for advertising will have to be identified as such. Subliminal communications will be banned, as will all commercials for prescription drugs, cigarettes, and tobacco products. Ads for alcohol must not be targeted at minors and must not encourage immoderate consumption.

The details of the new rules for VSPs remain to worked out by each EU Member State (and the UK), but the message is that VSP providers should prepare to implement more stringent measures to protect users from harmful content where they have operations anywhere in the EU or the UK..

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