Video sharing platforms in light of the amended Broadcasting Act

On 1 November 2021, an amendment to the Broadcasting Act and the Cinematography Act came into force, which introduced full regulation of video sharing platforms.

How is the situation for providers shaping up right now?

Implementation of the directive

The changes introduced by the amendment were due to the need to implement Directive 2018/1808 of the European Parliament and of the Council of 14 November 2018[1]. Undoubtedly, we can consider as one of the most significant changes the regulation of video sharing platforms through which users can share the audiovisual content they create.

What are video-sharing platforms under the law?

Intuitively, most of us may associate this term with sites such as YouTube, Dailymotion or Vimeo. A definition is now provided by the legislator, who defines a video-sharing platform as a service provided electronically in the course of business, if the primary purpose or essential function of the service or a separable part thereof is to provide to the general public, for informational, entertainment or educational purposes, user-generated video or other content for which the provider of the service has no editorial responsibility, but which the provider decides on the manner of compilation, including automatically or by means of algorithms, in particular by exposing, flagging and sequencing. Importantly, social media are generally excluded from the scope of this concept if their primary function is not the provision of user-created audio-visual or video content.

The most important aspect that characterises platforms is that the provider has no editorial responsibility for the content posted on the platform, which will not be reviewed by the provider before publication. The video sharing platform contractor only decides how the content on the site is collated – whether this is done ‘manually’ or in a fully automated way.

Video sharing platform providers

The Act imposes a number of obligations on platform providers, including but not limited to information. In addition to basic information such as contact details, providers must provide easy access to information on the ownership structure. This is in order to enable users of platforms to exercise their rights, inter alia, such as filing complaints.

Furthermore, in order to protect minors from harmful content, providers must ensure that effective technical safeguards are in place to prevent unauthorised content from being made available. It is worth pointing out, however, that this obligation consists only in providing technical solutions and not in qualifying the content in question as harmful. It will be up to the user making the video available on the platform to qualify the content accordingly.

Platform providers are also obliged to adopt appropriate platform regulations, setting out the principles of its functioning, including, among others, the rules of posting content on the platform and its marking in accordance with legal requirements. Statutory requirements concerning the scope of issues regulated by the regulations are residual, but it is the legislator’s intention that they should be clarified by self-regulatory acts, e.g. codes of good practices. If the provisions of the regulations or self-regulation are not effective, it will be possible to make the regulations more precise by means of a regulation of the National Broadcasting Council.

If a user of the platform uploads content that violates the rules or the law, the provider will be able to call on the user to remove the violation, and if that fails, it will be possible to block access to the inappropriate content for other users of the platform. If the infringement continues, the provider may block access to the user’s account (temporarily or permanently, depending on the nature of the infringement).

Platform providers will only be liable for failure to fulfil the obligations imposed on them by the Act. Thus, they will not be liable for infringing content posted by users. This means liability, among other things, in the event that content that does not comply with the Act is not removed, even though the provider is aware of it. However, this will be due to the responsibility for the compilation of the content, as already mentioned at the beginning of our article.

What about video sharing platform users?

The Act does not impose many obligations or administrative sanctions on platform users. However, they are obliged to comply with regulations based on the provisions of the Act and, in certain cases, will be able to file a complaint with the National Broadcasting Council.

In addition to the previously described obligation to appropriately label content harmful to minors, users may not upload content inciting violence and committing crimes specified in the act. In view of the inclusion of ‘user-created video’ in the definitions of commercial communication, sponsorship and product placement, such communications will be subject to a number of restrictions, including, inter alia, advertising of specific products and appropriate labelling of commercial communications.

Apart from the obligation to comply with the regulations, the Act does not impose any additional obligations on users merely receiving content made available on the platform. Instead, they are entitled to report content that in their opinion violates the law and the platform in question, and they are entitled to file complaints with the National Broadcasting Council.

Creation of a new list

Pursuant to the amendment, commencement of the activity consisting in provision of a video platform will require prior notification to a list maintained by the KRRiT. The notification, as in the case of VOD providers, for which an analogous list is created, is of a formal nature. Failure to notify will not result in a ban on operations, but the KRRiT will be able to impose a fine on such an entity in the amount specified in the Act. Each change of factual or legal state with regard to information included in the list will require notification. The notification itself will not contain any specific information regarding the nature of the platform and type of content placed on it, but only basic data concerning the provider.

To which platforms do the new provisions apply?

It should be noted that, according to the new provisions, the jurisdiction of the Republic of Poland applies to providers of video sharing platforms which have their registered office in its territory and to entities which, while having their registered office in the territory of any other state, have their parent company, branch, representative office or subsidiary in the territory of the Republic of Poland, unless they are already subject to the jurisdiction of another member state of the European Union.

The above means that the amendment applies only to domestic portals, while it does not cover the most popular portals in Poland, such as YouTube or Vimeo. It should be borne in mind, however, that the obligation to implement the directive applied to all EU member states, so similar – albeit with some differences – rules for video-sharing websites will soon apply throughout the EU.

To date, the legal situation of video sharing platforms has not been clear, and platforms have mainly operated under the provisions of the Act of 18 July 2002 on provision of services by electronic means. Regulating the situation of video platform providers by amending the Act is therefore an extremely important and necessary change.

Authors:

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.

[1] 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.