A new set of obligations for video content platforms

The Ministry of Culture has launched for public debate the draft amendment to the Audiovisual Law no. 502/2002, a project which transposes Directive (EU) 2018/1808 into national law. The most important changes involve regulating the online environment by imposing obligations on providers of video sharing platforms such as YouTube, TikTok, Facebook or Instagram.

During the public debate period, we submitted some suggestions to the Ministry that we think may improve the project, and we thought about sharing some ideas about the forthcoming regulation and how it will change the landscape in which video sharing platforms operate.

From this article you will find out:

  • whether the service you operate could become regulated under the new provisions;
  • what obligations you may have after it enters into force;
  • what the role of National Audiovisual Council (NAC) will be in the context of the new provisions.
First, who are the providers of video sharing platforms and whom does the regulation apply to?

You will be considered such a provider if you offer a service that has the following cumulative attributes:

  • The service or a part of it is aimed at providing user-generated programs or videos to the general audience;
  • The provision is made for information, entertainment or educational purposes, through electronic communications networks;
  • As the provider of the platform, you have no editorial responsibility for the content displayed, but determine the way the platform is organised, including by automated means or algorithms.

Basically, the new regulation would bring platforms such as YouTube, TikTok, Facebook, Instagram or even video educational platforms such as Udemy under NAC’s oversight, but the specific classification of each business to fit this category is a factual analysis that will depend on the functionality of each platform.

As a helpful tool, the European Commission has issued Communication No 2020/C 223/02, which contains guidelines that can assist both providers and the NAC in establishing the classification of a platform, based on 4 relevant types of indicators including the relationship between the audiovisual content and the main economic activity or activities of the service. For example, an e-commerce platform comprising product promotion videos (e.g. Amazon) is not considered to be such a platform provider, as video content generation is only ancillary to the main activity.

The draft legislation we analyzed did not exclude ‘non-economic activities from the definition, such as the provision of audiovisual content on private websites and within communities of non-commercial interests’, even though this is stated to be the case in the Directive. However, we think that the requirement of providing the service ‘to the general audience’ as an essential characteristic of the platform, implies that such an exclusion should make its way in the national legislation.

For example, offering the possibility of uploading video content to a company’s intranet is not a video-sharing platform service within the meaning of the draft legislation, as the content is not accessible to the general audience.

In addition, we should point out that the delimitation of commercial and non-commercial activities is not based on the purpose or method that the platform provider’s activity is organized. For instance, an NGO operating such a platform is also bound by the same legal obligations.

What obligations would I be subject to as a video sharing platform provider?
  1. Protecting users. If you operate such a platform, you must protect users from content that instigates to violence, hatred or crime and establish additional safeguards to protect minors from exposure to content that may affect them.
  2. Verifying audiovisual commercial communications compliance. Commercial ads should be marked as such, should not use subliminal techniques, and should not include, among others discriminatory or offensive content.
  3. Increased protection of minors against ads that:
  • directly incite them to buy a product or service by exploiting their inexperience or credulity;
  • encourage them directly to persuade their parents or others to buy the goods or services that are being advertised;
  • exploits the special trust that minors have in parents, teachers or others;
  • unreasonably puts minors in dangerous situations.

To demonstrate compliance with these obligations, the draft law states that you will need to mention in your terms and conditions that content which doesn’t comply with the aforementioned rules is prohibited. You will also need to provide harmful content reporting mechanisms and make sure you remove them once flagged. An example of this is the “notice and take-down” mechanism operated by YouTube which allows users to report videos, which are then subject to an internal investigation and eventually deleted from the platform.

What is the role of the NAC?

The NAC will keep a record of all providers of video-sharing platforms established in Romania, meaning those who have a fixed establishment in Romania where they carry out an economic activity for an indefinite period of time.

As the supervisory authority in the field, the NAC will be able to request:

  • providers of video sharing platform to remove or restrict access to such content or explicitly display a warning to users when accessing such content (Instagram, for instance, already has such a functionality available);
  • hosting service providers to remove, disable or restrict access to a video sharing platform;
  • registry operators to remove the domain name of the video sharing platform.

Moreover, the NAC will be able to request information on people uploading or generating video (users) and data about people providing audiovisual or video sharing media services (platforms) on “.ro” domains and subdomains.

As the draft law transposes a European Directive, similar regulations are being adopted in all EU Member States. Thus, most platforms operating within the Union will be subject to these obligations regardless of whether they are or not under the jurisdiction of Romania.

What’s next?

The public debate closed on 24 April 2021, with the draft to be debated by the Romanian Parliament. Since the deadline for transposing the Directive has been long exceeded, the normative act will most likely be adopted in emergency procedure.

After the Law enters into force, operators providing video sharing platform services under the jurisdiction of Romania will be required to notify their intention to provide such a platform to the NAC, at least 10 days before the start of the activity, and receive an operating permit. The notification procedure is to be detailed by the NAC after the adoption of the draft legislation. Until then, according to an NAC communication, if you operate such a platform, you can help to create a list of platform operators by liaising with the License Office.

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