Journal of Digital Media & Policy - The Changing face of the EU’s Audiovisual Media Policy, Nov 2021

The 2018 revision of the Audiovisual Media Services Directive (AVMSD) defined video-sharing platforms (VSPs) and brought them into the scope of the Directive, holding them responsible, though not liable, for preventing certain types of harm from both the user-generated content and the commercial communication they carry. The AVMSD introduces the concept of functionality to distinguish a platform as a VSP and bring it into scope. In this article, we present findings from an investigation that applied the concept of functionality more widely and sought to identify and understand those VSP functionalities relevant to commercial communications. We elaborate the creator-facing, advertiser-facing and user-facing functionalities found in a sample of thirteen VSPs by examining company documentation, and systematic testing through use, triangulated through semi-structured key informant interviews. Based on analysis of these commercial communications functionalities and the contractual relationships governing their use, we identify four purchasing pathways, each of which reveals roles played by stakeholders and distinct points of control. We therefore argue that the concept of functionality, which captures the platform design elements and the acceptance of a value proposition by various kinds of users, can be useful in distributing co-operative responsibility within dynamic, polycentric co-regulation and informing systems for enforcing procedural accountability.

While the EU Commission has set its sights on much broader online content regulation through the Digital Services Act (DSA), and the ongoing reforms to the eCommerce Directive (eCD), the AudioVisual Media Services Directive (AVMSD) is set to play a role in online hate regulation for content on video-sharing platforms (VSPs). The challenges though are greater than fitting within the DSA agenda and include particular barriers from national content moderation laws across various member-states, together with a fragmented umbrella of pan-European content regulation mechanisms. The convergence in timing of the AVMSD transposition, the draft DSA and the reform of the eCD (and its liability shield) offers a unique opportunity to assess the implications of harmonized content moderation responsibilities for hate speech from 2020 and beyond. This article explores the AVMSD, DSA and eCD as a ‘trend’, before discussing the impact of the reformulated AVMSD on VSPs and their efforts to tackle online hate. It argues that the AVMSD is an underappreciated tool in the increasingly harmonized approach to moderating online hate speech, but also a trigger-point for the new EU trend towards tackling platform power.

This article aims to discuss the impact of the expansion of the country of origin principle to video-sharing digital platforms, and how this contributes to a new paradigm of centralized governance of online media content in Europe. Compared to other jurisdictional regimes in the fields of data protection, intellectual property and personality rights, where other country of receipt and targeting tests are utilized, the case of the Audiovisual Media Services Directive (AVMSD) demonstrates the emergence of a split governance model between individual rights and public interests, which fails to protect adequately local cultural and social specificities in the media sphere.

This article considers the provisions in the European Union’s revised Audiovisual Media Services Directive concerning video on demand (VOD) services and the effectiveness of supply-side cultural diversity regulations in achieving their purported policy goals of increased production and consumption of European works. Because the Netherlands is the ‘country of origin’ to several multinational VOD services, including Netflix, we conducted a case study of this specific national context. We examine the quota for and prominence of European works, as well as different forms of financial obligations. We find that the former two policy tools may require new strategies to effectively reach their objectives in a nonlinear context. Our evidence also indicates that the latter remains controversial in the domestic audiovisual industry, as stakeholder positions are dependent on the type(s) of production stimulated. Based on this, we argue that securing the independence of producers and ensuring VOD services are transparent with respect to performance data are essential to promoting source diversity and a sustainable value chain.

Programming and investment quotas in favour of ‘European works’ are an important element of the audiovisual ‘cultural policy toolkit’ in Europe. In reasserting their role, the revised 2018 Audiovisual Media Services Directive (AVMSD) has updated these rules in response to the rise of transnational video-on-demand (VoD) services across the continent. This article examines why and how Italy embarked on a reform of its domestic regime on quotas in 2017, in parallel with the revision of the AVMSD. It shows that Italian policy-makers sought to adopt a system of quotas that was far more stringent than the one previously in force and that also departed from the EU approach in significant ways. The evidence presented here shows that while national broadcasters managed to get the government to water down its initial proposals, Netflix and the other VoD providers were not involved in the formal discussions with the government until at late stage and were unable to shape policy outcome to their advantage. We argue the Italian case is a prime example of the continued commitment to quotas as a core element of the audiovisual cultural policy toolkit seen across Europe.

This article examines the approaches of two understudied small EU countries to the possibility of imposing film-related levies or production investment obligations on non-domestic video on-demand services. Though they can take various forms, such measures are commonly referred to as ‘Netflix taxes’. Since 2018 they have been legally backed by the EU’s Audiovisual Media Services Directive (AVMSD). By sharing evidence on how these measures have been taken up during the transposition of the AVMSD revisions in Croatia and Slovenia, the article contributes to the emerging body of research into cross-border financial contributions as a film funding tool. This evidence indicates that the potential of ‘Netflix taxes’ to solve the film funding problems in small national markets is limited. It is also argued that no significant contribution to the overall sustainability and diversity of European audiovisual production can be expected if these measures are implemented on a country-per-country basis.

This article discusses the role played by regulatory intermediaries including non-state actors, professional associations and transnational networked agencies during the transposition of the Audiovisual Media Services Directive into Spanish national legislation. It aims to fill in the gap in prior research by extending the application of the Regulator–Intermediary–Target (RIT) theoretical framework to the field of audiovisual media regulation. The analysis focuses on the transposition stages of the Directive after the date of entering into force on 19 December 2018, up to 19 September 2020. Data are taken from publicly available national sources and European databases. Results show that the RIT framework helps to single out the main initiatives undertaken by relevant Spanish authorities and institutional players, their methods and responses to policy challenges. Mapping out regulatory intermediaries and network of relationships established among multiple actors facilitates our understanding on the complex forms of audiovisual governance and implementation of European law.

The current commentary will provide an overview of Ireland’s proposed legislation for regulating video-sharing platform’s (VSPs) user-generated content and the proposed Irish national regulatory framework that will oversee it. Many of the largest VSPs, such as YouTube, Facebook and Twitter, designated for regulation under the revised Audiovisual Media Services Directive (EU) 2018/1808 (AVMSD), base their European operations in the Republic of Ireland. Thus, based on the country of origin (CoO) principle, the Irish National Regulatory Authority (NRA) will regulate the harmful user-generated content, and commercial content of the largest VSPs and platforms with in which shared video is a significant feature. The commentary will also address the concerns raised by Ireland’s political-economic model and the inferred light-touch regulation interpreted as an aspect of how the State competes for Foreign Direct Investment (FDI). A low corporate tax regime, well-educated English-speaking population and access to the European Union has made Ireland a favoured location for primarily US-based technology companies. Alongside these attractions is a recent history of market-conforming governance that has left Ireland open to criticism of trading light-touch regulation for FDI. Ireland’s initial light-touch approach to Europe-wide data privacy regulation has been a case in point.

The commentary argues that self-regulatory mechanisms for dealing with the gravity and severity of current dangers from enormous and wealthy online platforms and offers are not sufficient and instead offers a view on functionally merging various initiatives, such as the Audiovisual Media Services Directive and the proposed Digital Services Act, outlining a proposal for allowing their constructive vertical and horizontal operationalism, having in mind the transnational nature of online services. It argues that the institute of National Digital Services Coordinators should be established in the form of national digital forums headed by media regulatory authorities, with competition, election and data-protection national authorities, vertically supported and consulted with the media/fact-checkers and academia. The proposed structure should be there not to protect any singular interest, but everyone’s collective interests, and the proposed functioning scheme recognizes the regulatory and advisory system with vertical and horizontal integration of the identified players. In place of naïveté in expecting dramatic and revolutionary response to addressing the problems and dangers in the online media environment, this commentary attempted to offer practical solutions to retaining the basic premise of democracy, while maintaining the vital importance of the right to freedom of expression.

Review of: The Future of Cultural Policies, Phillippe Kern (2020)

Brussels: Les Editions KEA, 104 pp.,

ISBN 978-2-96019-921-5, p/bk, €20