EU Censorship News

The UK Government recently outlines its plans for appointing Ofcom as the internet censor overseeing new EU censorship rules introduced under a new Audio Visual Media Services AVMS directive.

In Ireland, the Broadcasting Authority of Ireland (BAI) has pitched for similar powers, with the government currently considering the BAI's position alongside the appointment of an online safety commissioner.

The BAI believes that it could become an EU-wide regulator for online video, because Google and Facebook's European operations are headquartered in Dublin.

Earlier this year, the government announced plans that would see a future online safety commissioner given the power to issue administrative fines, meaning the commissioner would not have to go through a court.

Requirements for Video Sharing Platforms in the Audiovisual Media Services Directive

The Audiovisual Media Services Directive (AVMSD) is the regulatory framework governing EU-wide coordination of national legislation on all audiovisual media. The government launched a consultation on implementing the newly introduced and amended provisions in AVMSD on 30 May, which is available here .

One of the main changes to AVMSD is the extension of scope to cover video-sharing platforms (VSPs) for the first time. This extension in scope will likely capture audiovisual content on social media sites, video-sharing sites, pornography sites and live streaming services. These services are required to take appropriate measures to: protect children from harmful content; protect the general public from illegal content and content that incites violence or hatred, and; respect certain obligations around commercial communications.

The original consultation, published on 30 May, outlined the government's intention to implement these requirements through the regulatory framework proposed in the Online Harms White Paper . However, we also indicated the possibility of an interim approach ahead of the regulatory framework coming into force to ensure we meet the transposition deadline of 20 September 2020. We now plan to take forward this interim approach and have written to stakeholders on 23 July to set out our plans and consult on them.

This open letter and consultation sent to stakeholders, therefore, aims to gather views on our interim approach for implementing requirements pertaining to VSPs through appointing Ofcom as the national regulatory authority. In particular, it asks questions regarding:

• how to transpose the definition of VSPs into UK law, and which platforms are in the UK's jurisdiction;

• the regulatory framework and the regulator's relationship with industry;

• the appropriate measures that should be taken by platforms to protect users;

• the information gathering powers Ofcom should have to oversee VSPs;

• the appropriate enforcement and sanctions regime for Ofcom;

• what form the required out of court redress mechanism should take; and

• how to fund the extension of Ofcom's regulatory activities from industry.

Update: The press get wind of the EU censorship nightmare of the new AVMS directive

12th August 2019. See article from bbc.com

The government is considering giving powers to fine video-sharing apps and websites to the UK's media censor Ofcom.

The proposal would see Ofcom able to impose multi-million pound fines if it judges the platforms have failed to prevent youngsters seeing pornography, violence and other harmful material.

Ofcom are already the designated internet censor enforcing the current AVMS censorship rules. These apply to all UK based Video on Demand platforms. The current rules are generally less stringent than Ofcom's rules for TV so have not particularly impacted the likes of the TV catch up services, (apart from Ofcom extracting significant censorship fees for handling minimal complaints about hate speech and product placement).

The notable exception is the regulation of hardcore porn on Video on Demand platforms. Ofcom originally delegated the censorship task to ATVOD but that was a total mess and Ofcom grabbed the censorship roles back. It too became a bit of a non-job as ATVOD's unviable age verification rules had effectively driven the UK adult porn trade into either bankruptcy or into foreign ownership. In fact this driving the porn business offshore gave rise to the BBFC age verification regime which is trying to find ways to censor foreign porn websites.

Anyway the EU has now created an updated AVMS directive that extends the scope of content to be censored, as well as the range of websites and apps caught up the law. Where as before it caught TV like video on demand websites, it now catches nearly all websites featuring significant video content. And of course the list of harms has expanded into the same space as all the other laws clamouring to censor the internet.

In addition, all qualifying video websites will have to register with Ofcom and have to cough up  a significant fee for Ofcom's censorship 'services'.

The EU Directive is required to be implemented in EU members' laws by 20th September 2020. And it seems that the UK wants the censors to be up on running from the 19th September 2020.

Even then, it would only be an interim step until an even more powerful internet censor gets implemented under the UK's Online Harms plans.

The Telegraph reported that the proposal was quietly agreed before Parliament's summer break and would give Ofcom the power to fine tech firms up to 5% of their revenues and/or block them in the UK if they failed to comply with its rulings. Ofcom has said that it is ready to adopt the powers.

A government spokeswoman told the BBC.

We also support plans to go further and legislate for a wider set of protections, including a duty of care for online companies towards their users.

But TechUK - the industry group that represents the sector - said it hoped that ministers would take a balanced and proportionate approach to the issue.  Its deputy chief executive Antony Walker said:

Key to achieving this will be clear and precise definitions across the board, and a proportionate sanctions and compliance regime, said

The Internet Association added that it hoped any intervention would be proportionate. Daniel Dyball, the association's executive director.said:

Any new regulation should be targeted at specific harms, and be technically possible to implement in practice - taking into account that resources available vary between companies.

The BBC rather hopefully noted that if the UK leaves the European Union without a deal, we will not be bound to transpose the AVMSD into UK law.

Facebook has agreed to settle a years-long legal battle with a French teacher who sued after the social media giant shuttered his account when he posted a renowned 19th-century painting that features a woman's genitals.

The dispute dates to 2011, when the teacher, Frederic Durand, ran foul of Facebook's censorship of nude images after posting a link that include a thumbnail image of L'Origine du Monde (The Origin of the World), an 1866 painting by the realist painter Gustave Courbet.

Durand argued that Facebook was infringing on his freedom of expression. He sought 20,000 euro in damages and initially won his case in a Paris court but a higher court overturned the ruling in March 2018.

Durand had been preparing an appeal, but in a statement to AFP, his lawyer Stephane Cottineau said a deal had been reached for Facebook to make an unspecified donation to a French street art association called Le MUR (The WALL).

You'd think YouTube would be keen on supporting creators who generate content and income for the company. But Google is obviously a bit too rich to care much, and so content creators have to live with the knowledge that their livelihoods could easily be wiped out by even the most trivial of political or PC transgressions.

YouTube arbitrarily bans and demonitises those from a long list of no-noes, including being on the political right, offending the easily offended, being politically incorrect, or of course saying something corporate advertisers don't like.

Needless to say there is a long list of aggrieved creators that have an axe to grind with YouTube, and plenty more who are walking on eggshells trying to make sure that they are not the next victims.

And now they're fighting back. An obscure 'YouTubers union' has joined forces with IG Metall -- Germany an Europe's largest industrial union, to form the campaigning group FairTube.

FairTube has called for the following from YouTube and given it until 23 August to engage with it, or else.

• Publish all categories and decision criteria that affect monetization and views of videos
• Give clear explanations for individual decisions -- for example, if a video is demonetized, which parts of the video violated which criteria in the Advertiser-Friendly Content Guidelines?
• Give YouTubers a human contact person who is qualified and authorized to explain decisions that have negative consequences for YouTubers (and fix them if they are mistaken)
• Let YouTubers contest decisions that have negative consequences
• Create an independent mediation board for resolving disputes (here the Ombuds Office of the Crowdsourcing Code of Conduct can offer relevant lessons)
• Formal participation of YouTubers in important decisions, for example through a YouTuber Advisory Board

At first glance one may wonder if the union has any way to generate a little leverage over YouTube but they have been thinking up a few ideas:

• Contesting the status of YouTube creators as self-employed, thus creating a greater duty of care on YouTube towards its creators.
• Claiming GDPR violations due to YouTube's refusal to give creators the data it stores about them and which it does share with advertisers.
• Old fashioned collective action -- not so much striking as spreading the word and joining the union to put collective pressure on YouTube and its own Google.

Lets hope they are on the right tracks.