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European Audiovisual Observatory publishes new legal report
Video Sharing Platforms – who’s making the rules and how do they apply?

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With last week’s announcement that Instagram has just launched a new video sharing platform - IGTV – it’s clear that VSPs are this season’s hot topic. But what rules do they have to respect? How does European legislation sheriff the wild wild west of content sharing platforms such as YouTube? And what of Facebook? How does European law define their role and responsibilities? High time for the European Audiovisual Observatory’s new report: The legal framework for video-sharing platforms.

This brand new study is authored by the Observatory’s legal and market experts: Francisco Javier Cabrera Blázquez, Maja Cappello, Gilles Fontaine, Ismail Rabie and Sophie Valais. Head of Legal Department Maja Cappello presented the report at a Video Sharing Platform (VSP) conference in Paris at the beginning of June.

Chapter one of this report sets the scene of the online platforms market in Europe. The authors place this sector in the context of the entire audiovisual ecosystem. This chapter clearly distinguishes between VSPs such as YouTube and DailyMotion, on the one hand, and social media platforms such as Facebook or Instagram, for example, on the other. The authors also underline the dominance of Google and Facebook in the online advertising market. Together they represent 60% of the US market and a similar figure in Europe. This first chapter also explores the sheer legal difficulty of actually defining what a Video Sharing Platform is in the eyes of national and European legislation.

Chapter two offers a very pragmatic overview of the current European legal framework applicable to VSPs. These platforms qualify as hosting providers under the e-Commerce Directive (ECD). This places them under a “limited liability regime” which obliges them to remove illegal information when it can be proved that they have knowledge of this. The authors explain that VSPs also fall under the the Charter of Fundamental Rights of the European Union and EU legislative provisions on copyright, commercial communications, protection of minors, data protection etc.

Chapter three zooms in on the national transposition of the European legislation applicable to VSPs. The authors reveal interesting differences in approach between the various EU member states, but mention a seemingly growing conviction that VSPs require stricter regulation. For example, countries such as the UK, France, and Germany are currently discussing new laws to tackle fake news online. France and Germany have already adopted measures to oblige VSPs to contribute to the financial ecosystem of the audiovisual sector in a similar way to that in which audiovisual media services do.

Chapter four looks at self-regulation and pan-European initiatives covering the activities of VSPs. In a world where image is paramount and #badbuzz can be fatal, VSPs and social media networks have actively developed their own guidelines, mechanisms, and tools to empower and protect different categories of users, such as minors, consumers, and rightsholders, from harmful or illegal content, hate speech or fake news. The chapter closes with a table of online advertising self-regulatory organisations.

Chapter five provides an overview of recent European case law in this field, both concerning Strasbourg’s European Court of Human Rights, and the Court of Justice of the European Union. The authors recall and walk us through ground-breaking cases concerning liability and responsibility for on-line content, such as the now famous Delfi AS v. Estonia case. The notion of an “active” or “passive” hosting provider is also explored with reference to several complaints from fashion or beauty manufacturers such as Vuitton or l’Oréal concerning trademark infringement on line.

Chapter six looks at where current European legislation of VPSs is actually heading in terms of evolution and adapting to the regulatory challenges of these new players. The authors track the new developments proposed as part of the on-going review of the Audiovisual Media Services Directive (AVMSD). The current revision of the Copyright Directive will also, inevitably, contain provision to regulate VSPs. In addition, the European Commission’s Digital Single Market Strategy contains initiatives to protect consumers and even addresses the tricky question of levying taxes upon these companies which are active in Europe and clearly a part of the on line financial ecosystem.

Chapter seven rounds off this publication with a very digestible set of comparative tables showing the AVMSD rules in the different stages of the legislative reform.

Video Sharing Platforms – find out how the current rules apply and what future measures are in the pipeline!

Strasbourg 12/07/2018
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Our French Presidency conference held on 5th of June 2018 in Paris.

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Gilles Fontaine presents his market analysis at the 2018 Cannes conference.