Does the AVMS-Directive apply to social media platforms? Will we get more European content on video-sharing platforms? – EU releases Guidelines on the AVMS-Directive

The European Commission has released guidelines on the interpretation of some aspects of the AVMS-Directive. The Guidelines reveal an interesting insight on how the European Commission evaluates the scope and application of the AVMS-Directive. However, the Guidelines are not strictly binding for Member States. Maximilian König and Dr. Christoph Krück inform.

The Guidelines focus on two major topics:

• Criteria to determine whether a platform has to be considered as a video-sharing platform which will also determine the applicability of the Directive on social media platforms;
• Calculation of the 30 % share of European works.

Are social media platforms as video-sharing platforms regulated by the AVMS Directive?

As the AVMS-Directive aims i.a. to regulate illegal and harmful online content, it may also apply to certain social media platforms, if the provision of programmes and user-generated videos constitutes an “essential functionality” of these services. The Guidelines provide a list of relevant indicators that can be used to assess the essential character of the audiovisual functionality of a platform. The main criteria are:

• Economic relevance of the audio-visual content for the platform;
• The amount, use and reach of the audio-visual content for the platform;
• Relevance of monetization or revenue generation from the audio-visual content;
• Tools aiming at enhancing visibility and attractiveness of audio-visual content.

Please find the complete “Guidelines on the practical application of the essential functionality criterion of the definition of video-sharing platform services” here.

Calculation of the share of European works in on-demand catalogues

The second Guideline suggests a way of calculating the share of European works (the obligatory percentage is 30%). It takes the position that for on-demand services as opposed to linear audiovisual media services such share is to be calculated by titles, not by transmission time. The reason is that the assessment by transmission time only made sense for time-bound linear services, which is not the case with video-on-demand services - time is no longer the decisive factor, while the quantity has become important. As for series one season of a series shall be calculated as one title. No minimum running time threshold is stipulated for a programme as a title.

Excluded from the obligation are video on demand services with a market share below 1% as well as linear audio visual media services with a market share below 2%.

Please find the complete “Guidelines on the method of calculation of the share of European works” here.

What is next?

For now the Member States have to implement the AVMS-Directive into national legislation by September 19^th, 2020. The Guidelines are non-binding - it therefore remains to be seen to what extent the member states will comply with them and how the European Commission will react on the Member States’ respective practices.

Please find the press release from the European Commission here.