The amendments to the Broadcasting Act and the Cinematography Act entered into force on 1 November 2021, and selected provisions will apply from 1 January 2022. The amendments are due to the need to implement Directive 2018/1808 of the European Parliament and of the Council of 14 November 2018.  In addition to regulating the activity of video sharing platforms, the amendment tidies up the rules on product placement, changes the permissible limits of advertising slots and extends the obligations relating to programme labelling. What other changes do the new regulations provide for?
Video sharing platforms
One of the most important changes provided for in the new legislation is regulation of the functioning of video sharing platforms, by means of which users make available audiovisual content created by them. So far, the legal situation in this respect was quite complicated, and such platforms functioned mainly under the provisions of the Act of 18 July 2002 on provision of services by electronic means. Regulating the situation of video sharing platform providers is therefore an extremely welcome and necessary change.
Under the new provisions, a video platform provider will not be liable for content made available on the video platform by its users. Certain obligations have been imposed on platform providers, including those relating to information about the ownership structure or the introduction of appropriate safeguards to limit access to inappropriate content by minors. The issues related to the rules of the platform, whose obligation was de facto already provided for in the Act on provision of services by electronic means, were also clarified.
The changes also specify, among other things, the rights of users both posting and receiving content via the portal, as well as regulate the procedure for dealing with content that violates the rules of a given platform. Users may not post content inciting violence and committing crimes specified in the Act, and must appropriately mark content that poses a threat to the proper development of minors. The sanction for violating these obligations will be the possibility to block the content or the account of such a user.
An important change is also the inclusion of “user-created video” within the definition of commercial communication, sponsorship and product placement, which will avoid previous doubts as to whether users making videos available on such platforms are covered by the restrictions on commercial communication.
It is worth mentioning that uploading audiovisual content by professional, commercial and organised entities via video-sharing portals does not exclude the possibility of qualifying a given entity as a VOD provider, which involves a number of additional requirements concerning such activity.
We will talk more about the regulation of video sharing platforms in the following articles on our blog.
The amendment also introduced changes concerning the broadcasting of commercials and telesales. The new rules replaced the previous limits for each hour of broadcasting with specific time slots (from 6:00 a.m. to 6:00 p.m. the total duration of commercials may not exceed 144 minutes, and from 6:00 p.m. to midnight – 72 minutes). These changes are intended to give broadcasters greater flexibility in making a profit from advertising revenues. A novelty of sorts is also the permission to interrupt children’s programmes which last longer than one hour.
The amendment lifted the previous general ban on product placements with numerous exceptions and introduced, as a general rule, the admissibility of such placements with the exception of cases specified in the law. Although in practice the scope of permitted product placement will not change, the recognition of the admissibility of placement as a rule means that any doubts will have to be resolved in favour of the placementist.
Significantly, from 1 November, it is no longer possible to broadcast commercial communications relating to electronic cigarettes and refill containers. This extends the ban on tobacco products in general.
The changes also concern the sponsorship information. Instead of appearing before the programme, at the end of the programme and after its resumption after the commercial break, this information is presented only twice:
- at the beginning of the sponsored programme, and
- when the programme or other broadcast is resumed after one of the commercial or telesales breaks or at the end of the programme or other broadcast – it is left to the broadcaster’s discretion at which moment the second sponsorship information shall be presented.
In addition, the amendment removes the time limit for the broadcaster’s own announcements, while maintaining that these announcements may only be broadcast between programmes.
Protection of consumers, minors and facilities for the disabled
A large part of the amendment is devoted to provisions relating to minors and their protection against access to harmful content. As before, broadcasters will be obliged to categorize programmes into specific age categories and mark them with appropriate signs specified in the KRRiT regulation. In order to protect minors from access to harmful content, a distinction has been made between
- markings indicating that the content may have a negative impact on minors (i.e. the existing age category markings) and
- labelling which types of threats are present in a given broadcast or other communication.
The indication that the content may have a negative impact on minors shall be available throughout the duration of the programme, and the indication specifying the type of risks shall be made available before and at the beginning of the programme. In addition, the obligations imposed on VOD providers regarding the use of technical safeguards to protect minors from harmful content have been clarified.
It also prohibits broadcasters and VOD providers from processing, for commercial purposes, personal data of minors collected in relation to the technical protection measures in place to protect minors from accessing harmful content.
In addition, the obligations to provide facilities for persons with disabilities in respect of VOD services have been extended. There is an obligation on VOD providers to progressively increase content with facilities to at least 30% of the programmes in a given catalogue. Providers will have to inform the National Broadcasting Council about these facilities.
It should also be noted that media service providers, and therefore also VOD providers, are subject to extensive information obligations towards the recipients, including on the ownership structure and the actual beneficiaries.
Previous legislation did not require VOD providers to make any notification – although the National Broadcasting Council kept a register of VOD providers, entry into that register was entirely voluntary.
The amendment requires VOD providers to make a prior notification to the National Broadcasting Council before commencing operations. This notification is only formal – obtaining an entry does not condition the ability to provide VOD content, but in case of failure to notify, the KRRiT will be able to impose a fine in the amount specified in the Act.
Under the new regulations, an analogous obligation to enter the register is also imposed on providers of video sharing platforms.
The amendment also introduces other changes. Among others, the rules of promoting and supporting European works by media service providers have been modified – the share of European works in the catalogue offered has been increased from 20% to 30%. This limit does not apply to catalogues in which only audiovisual programmes that are not European are made available to the public, and also to entities with low revenues or a small number of recipients.
The criteria for determining the competent jurisdiction for VOD providers have also changed. In principle, a VOD provider is subject to the law of the Member State in which it is established. However, VOD providers may be subject to the jurisdiction of a state other than the state of establishment if editorial decisions are made in that state or a significant number of employees are employed there. Accordingly, the concept of “editorial decisions”, the interpretation of which raised significant doubts, has been clarified and it has been indicated which employees are relevant in determining jurisdiction. Under the new regulations, they are to be involved in the conduct of programme activities.
Finally, it is worth mentioning that the provisions of the Cinematograph Act were amended, thus extending the catalogue of entities obliged to make payments to the Polish Film Institute. Among them, from the moment the changes enter into force, there will be television broadcasters who have their registered office in another European Union country, but receive their revenue on the territory of Poland.
The changes introduced are largely a direct implementation of the relevant provisions of Directive 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending the Audiovisual Media Services Directive. The regulation of the hitherto unclear legal situation of video sharing platforms, the strengthening of the protection of minors from harmful content, as well as the liberalisation of the limits of commercial broadcasts can be assessed positively.
 Directive 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services.
Paweł Myrda – attorney at law. He specializes in intellectual property law, especially copyright, as well as protection of personal rights of natural persons and business entities.
Marlena Kudła – trainee at LSW Leśnodorski Ślusarek and Partners.