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The Italian Government is in the process of implementing the so called Audiovisual Media Services EU Directive (“AVMSD”) which was merely meant to amend the Television Without Frontiers EU Directive to extend its scope to new technologies (e.g. on-demand audiovisual media services, satellite TV etc.).
However, the law proposal submitted by the Italian Government goes a way beyond the scope of the AVMSD and extends the applicability of the regime of broadcasters also to video hosting platforms like YouTube by including in the definition of “audiovisual media service” (and thus making it subject to the relevant rules):
“services, also transmitted through the internet, consisting in the provision or the availability of animated images, with or without audio, in which the audiovisual content is not merely marginal do fall within the afore mentioned definition“.
According to such definition, which is not included in the AVMSD, video hosting websites like YouTube would be deemed as an audiovisual media service and as such it should comply, with all obligations specifically enumerated in the AVMSD, which include – among others:
- the need to obtain a prior authorisation for the performance of the broadcasting activities from the Ministry of the Communications; and
- the obligation to broadcast videos in compliance with the terms and conditions agreed with the right holders without broadcasting programs, or offering, on whatever kind of platform , programs or part of programs of third parties, without their consent.
Moreover, video hosting websites will be considered to exercise an “editiorial responsability” i.e. an effective control both over the selection of the programmes and over their organization. In this context, an “effective control” is defined by the law proposal implementing the AVMSD (and this is a peculiarity introduced by the Italian legislator) as “the possibility to take decisions on the adding or the removal of contents, their positioning, the modalities of presentation to the public [e.g. also the mere framing], the allowance of codes or the determination of other search modalities available to users within a catalogue“.
This means that – if the law proposal passes – video hosting websites like YouTube will lose the hosting provider liability exemption prescribed by the E-Commerce Directive and would be considered liable for all the copyright violations carried out through the videos uploaded on its platform by their users regardless of whether it has knowledge or it has been notified of them. Also, there is a risk that court might extend this liability also to any defamatory or illegal content published on the platform.
The law proposal has been highly criticized since it is in contrast with the scope of the AVMSD whose recitals expressly exclude from its scope “private websites and services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest” and it might be also challenged before the European Court of Justice. Also, this is in contrast with the principles set forth in the E-Commerce Directive which do not oblige ISPs to monitor the contents provided by their users and stored on their platforms and excludes their liability for such contents.
If you want to discuss the implications of this law proposal on your business, feel free to contact me, Giulio Coraggio.
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