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The Internet, as well as being more present than ever in all areas of our lives, has consolidated its position as one of the main sources of digital content consumption. Consequently, new forms of consuming audiovisual content have emerged.

As part of transposing the Audiovisual Communication Directive into Spanish law (which should have taken place by September 19, 2020), the Spanish Markets and Competition Commission (CNMC) (in its supervisory and control role for the audiovisual communication market) has launched a public consultation seeking, on the one hand, to gauge the opinion of the new agents who use exchange platforms to disseminate their content and, on the other, to determine the scope of the Spanish General Audiovisual Communication Act (Ley General de Comunicación Audiovisual). The public consultation is open until November 13.

First, the CNMC refers to the scope of the General Audiovisual Communication Act. That law applies exclusively to providers offering an “audiovisual communication service,” that is, economic services for which the provider holds editorial responsibility, whose main purpose is to provide programs that inform, entertain or educate the general public. The programs must be audiovisual and must be provided using electronic communications networks.

In view of this, the consultation concludes that services provided by content creators for dissemination through video exchange platforms could be considered audiovisual communication services. Consequently, the consultation raises a host of questions regarding the scope of the General Audiovisual Communication Act.

  • With regard to its subjective scope: given that it is restricted to economic activities, it asks which criteria would enable us to distinguish between private users and users performing an economic activity.
  • In terms of territorial scope: since the Act is restricted to audiovisual communication service providers established in Spain, it questions how it could address providers located outside the European Union.

Moreover, the consultation raises a series of questions to clarify what practical difficulties may arise when applying the General Audiovisual Communication Act to audiovisual service providers on video exchange platforms, particularly difficulties on content control, protection of minors and misleading or surreptitious advertising.

Ultimately, the outcome of this consultation could change the rules of the game for users who create and disseminate content via video exchange platforms, who could even be subject to new obligations and restrictions. Therefore, we must pay attention to the outcome of this consultation, and we will update the blog with any developments.

Authors: Ane Alonso and Inés Cabañas

This post is also available in: Español



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