STATEMENT OF THE ASSOCIATION OF COMMERCIAL TELEVISION ON THE REGISTRATION OF PROVIDERS OF ON-DEMAND AUDIOVISUAL MEDIA SERVICES
DECEMBER 2024
Since the end of November, the issue of registration of on-demand audiovisual media service providers has been resonating in the media (such as social networks, the internet, radio and television, daily and weekly press). It has even been the subject of press conferences and is currently being discussed in the Chamber of Deputies of the Parliament of the Czech Republic or the Senate of the Czech Republic.
The press release of the Council for Radio and Television Broadcasting (RRTV) of 21 November 2024, which contained routine information about RRTV’s activities for which it has a legal mandate under the applicable EU and Czech legislation, sparked discussion even at the government level.
In its press release, RRTV informed audiovisual media content creators (which may include influencers) that, following the law, it calls on them to fulfil the registration obligation if the service they provide meets the definitional criteria of an on-demand audiovisual media service (AVMS). While not required to do so, the Council proactively went beyond its statutory obligations and notified the entities concerned that if they met the statutory criteria for registration and had not yet registered in the RRTV database, they should do so promptly. Furthermore, the Council offered assistance in determining whether their service fell under the registration requirement in case there was any uncertainty. When the public authority brings to the attention of those subject to the statutory obligation that they need to comply and offers advice, this is an extraordinary and very helpful step on the part of the public authority.
In this context, we consider the following obligation of EU Member States under Article 2 (5b) of the Audiovisual Media Services Directive to be essential:
Member States shall establish and maintain an up-to-date list of the media service providers under their jurisdiction and indicate on which of the criteria set out in paragraphs 2 to 5 their jurisdiction is based. Member States shall communicate that list, including any updates thereto, to the Commission.
The Commission shall ensure that such lists are made available in a centralised database. In the event of inconsistencies between the lists, the Commission shall contact the Member States concerned in order to find a solution. The Commission shall ensure that the national regulatory authorities or bodies have access to that database. The Commission shall make information in the database publicly available.
It is imperative that it must be a high-quality and, if possible, comprehensive list.
The topic of registering influencers as on-demand AVMS providers is also regularly addressed by ERGA, which states in its report for example the following: „The Lithuanian NRA (a body comparable to the Czech RRTV) has also issued some warnings for vloggers, who refused to comply with registration obligation and even had court proceedings regarding this as one of the vloggers contested the warning at the court. After the appeal, the decision adopted by Vilnius Regional Court was in favour of the RTK and the vlogger was requested to comply with the obligations:
The affected group of natural person entrepreneurs (generalised as influencers) is a sector that fundamentally affects a large number of EU consumers (in many cases targeting a vulnerable audience of the youngest and therefore most vulnerable generations). “Influencer activity” is carried out for remuneration, regardless of its form, and very often involves the promotion of products and services in ways that are explicitly prohibited for traditional AVMS providers (TV/radio). It may also include the promotion of products and services for which all advertising activities are banned in traditional media.
On this occasion, it is worth recalling that on 14 February 2024, the European Commission published a press release on the results of a screening (“sweep”) by the EC and consumer authorities, which shows that online influencers rarely admit that what they publish is, in fact, commercial content. The sweep found that while 97% published posts with commercial content, only 20% systematically disclosed this as advertising. Out of 78% of the verified influencers exercising a commercial activity, only 36% were registered as traders. As a result of the sweep, 358 influencers were earmarked for further investigation. National authorities will now contact them to request that they follow the rules in place. The Commission will analyse the results of the sweep (also in light of the legal obligations of the platforms under the DSA) and will take the necessary enforcement action as appropriate. For the cited European Commission press release, see:
https://ec.europa.eu/commission/presscorner/api/files/document/print/cs/ip_24_708/IP_24_708_EN.pdf
As evidenced not only by the aforementioned details but also by the general necessity arising from the current situation in the audiovisual market, supervision of compliance with advertising regulation is another crucial step that needs to be addressed, similar to the practices of supervisory authorities in other EU countries. In some cases, these countries enforce stricter regulations on influencers than on traditional media; the French regulation is a notable example.
The Association of Commercial Television understands the RRTV press release of 21 November 2024 as a procedure that is fully in line with Czech law and above all, with the law of the European Union, which the Czech Republic has undertaken to uphold and enforce.
