Public consultation on the application of the Spanish audiovisual framework to media service providers supported on video-sharing platforms

On 1 October 2020, CNMC, the Spanish converged regulator, launched a public consultation on the application of the Spanish audiovisual framework to media service providers supported on video-sharing platforms. Responses can be submitted until 13 November 2020.

Thanks to technological advances, the audiovisual market has evolved significantly. The Internet has become an important source of consumption of audiovisual content, making possible the emergence of new services and changing consumption habits, particularly in younger generations.

In the framework of its work to supervise and control the audiovisual media market, CNMC considers appropriate to collect information, through this public consultation, on the functioning of these new services (i.e. vloggers). Likewise, CNMC intends to determine the scope of the application of the the Spanish Audiovisual Law on these new agents of the audiovisual market. It is not the subject of this consultation to assess the imposition of obligations on video-sharing platforms.

• The consultation departs from some key consideration concerning the definition of an audiovisual media service and the identification of the agents providing it. According to Articles 1 and 2 and Recitals 21 to 28 of the 2010 Directive[1], a service has to meet a set of criteria to qualify as an AVMS, the most relevant being: it must be an economic service; the provider must have editorial responsibility for the content it broadcasts; it must be a service aimed at the general public, whose function is primarily to inform, entertain or educate the general public and whose main proposal is the provision of programmes, these programmes being audiovisual; and, in addition, it should be provided through electronic communication networks.

• After the judgement of the Court of Justice of the European Union in the New Media Online case (C-347/14, 21 October 2015), “short videos” may be considered audiovisual programmes. Recital 3[2] and Article 1(1) (c) of the 2018 Directive[3] consolidate this approach, stating that short videos can qualify as programmes[4].

• This decision has meant that some services that provide audiovisual content, which could be doubted as to their inclusion in the regulatory framework of the audiovisual sector, are definitely included in the object and legal scope of the audiovisual sector regulation. In fact, this extension of the scope has been expressly introduced in the revised Directive (EU) 2018/1808 regarding video-sharing platforms service providers.

• In broad terms, CNMC considers that, under the cumulative fulfilment of the above criteria, agents who publish and/or broadcast content on video-sharing platforms are potentially subject to being deemed as audiovisual media service providers, and should therefore be under the obligation to comply with the Spanish General Law No 7/2010 of 31 March on Audiovisual Media.

• However, CNMC is conscious of the need for an in depth, case-by-case, analysis that shall govern the qualification of any such service. It is in that spirit that CNMC seeks to gather all the relevant information as to the functioning of media services supported in video–sharing platforms and in regards of the application of obligations of the Spanish audiovisual framework on these new agents.

Hence, the consultation focuses on the following aspects:

• Obligations with regards to control over broadcast content.

• Obligations with regards to the protection of minors.

• Obligations with regards to advertising

• Subjective scope of application of the law.

• Territorial scope of application of the law.

• Matters concerning the applicability of catch-up rules to live broadcasts in video-sharing platforms.

CNMC Public Consultation (EN) 

Source: CNMC