Implementation of Audiovisual Media Directive 2018/1808 in Poland

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Draft law

The Ministry of Culture and National Heritage published a draft law on 7 September 2020 amending the Broadcasting Act and the Cinematography Act. The aim of the new act is to implement Audiovisual Media Directive 2018/1808 in Poland. The draft also changes the Cinematography Act by introducing new payment obligations on broadcasters with the registered office in European Union countries other than Poland (please see: EU broadcasters targeting Poland expected to pay 1.5 per cent of revenues to Polish Film Institute).

Most of the changes are in line with the Directive, however some of them reflect a stricter approach of the Polish legislator. While self- and co-regulatory instruments play an important role in the Directive, the draft regulates obligations of media service and VSP providers by implementing binding legal provisions.

The draft introduces, among others, the following changes into the Broadcasting Act:

  • clarification of criteria of establishing jurisdiction for media services providers
  • new rules of commercial communications and new information obligations of broadcasters
  • new obligations of on-demand service providers
  • regulations on video sharing platforms.

Jurisdiction criteria

The determination of jurisdiction will continue to be based on the country of origin principle and the same criteria as in the Directive will apply. There is a specification of some criteria proposed. One of the criteria of editorial decisions will be understood, following the AVMS Directive, as “decisions taken on a regular basis for the purpose of exercising editorial responsibility and linked to the day-to-day operation of the audiovisual media service”. Criteria of “a significant part of the workforce”, adequate to the Directive provisions, will refer to “staff involved in program-related services”.

Broadcasters

The draft introduces more flexibility for broadcasters in terms of commercial broadcasting. There is a division between two time slots from 6.00 to 18.00 (where the total time of commercials and teleshopping spots may not exceed 144 minutes) and from 18.00 to 24.00 (where the total time of commercials and teleshopping spots may not exceed 72 minutes). However Polish broadcasters will still face stricter rules on commercials than the Directive provides. Polish legislator wishes to keep unchanged the rules that films may be interrupted once for each scheduled period of at least 45 minutes and other audiovisual programs may be interrupted once for each scheduled period of at least 20 minutes (subject to other exclusions, e.g. children’s programs may still not be interrupted by commercials at all).

It is worth noticing that the draft removes restrictions regarding broadcasters’ announcements. There will no longer be 2 minute limits and broadcast announcement restrictions to slots between programs only. Following the Directive, the broadcasters’ announcements may concern a broadcaster’s own programs and ancillary products directly derived from those programs but also programs and audiovisual media services from other entities belonging to the same broadcasting group.

Stricter rules are also proposed in the draft with respect to commercials for food and beverages containing nutrients and substances with a nutritional or physiological effect of which excessive intakes in the overall diet are not recommended. While the Directive proposes to encourage the use of co-regulation and the fostering of self-regulation through codes of conduct in this respect, the Polish legislator is now imposing statutory obligations on broadcasters to not broadcast such commercials before, during or after programs dedicated for children below 12 years of age. This is particularly interesting when taking into account the already existing self-regulation of broadcasters in this area that has also been well evaluated by the National Broadcasting Council.

As in the Directive, product placement will now be allowed in all audiovisual media services in Poland as a rule, but subject to specific exceptions. However the draft introduces restrictions on sponsorship of children’s programs. Given the already existing ban on interrupting children’s programs by commercials, broadcaster may reconsider their schedules to limit the number of programs dedicated for under age audiences.

Broadcasters can also expect other obligations, like:

  • ensuring access to information on broadcasters’ ownership structures and all their services,
  • providing sufficient information about content that may impair minors' physical, mental or moral development by:
    • a visual symbol broadcasted during the program and
    • by a visual symbol displayed before the broadcasted program and at the beginning of the program; this symbol should indicate the kind of content that may impair minors’ health.

On demand media service providers

With respect to on-demand media service providers, the draft also establishes a few new obligations:

  • providing information about the ownership structures and all services run by providers, 
  • reporting their services for listing in the register kept by the President of the National Broadcasting Council, 
  • marking audiovisual work by a visual symbol warning that the content may impair minor’s physical, mental or moral development and by a visual symbol indicating the kind of content that may impair minors’ health.

The draft also extends the obligation to include European productions from 20% to at least a 30 % shares in their catalogues.

While the Directive establishes the obligations of Member States to ensure that services provided by media service providers under their jurisdiction are made continuously and progressively more accessible to persons with disabilities through proportionate measures, the draft, as in the case of broadcasters, establishes binding legal obligations to include at least 30% shares in their catalogues, programs with measures making them accessible to persons with disabilities.

The President of the National Broadcasting Council will now be armed with new tools against on-demand media service providers. He will be entitled to delete from the register of on-demand media service providers those who during the last 12 months, at least twice screened content that could impair a minor’s physical, mental or moral development or incite to violence or hatred against individuals or groups of persons based on any grounds or to commit a terrorist offence. Interestingly, on similar grounds, the President of the National Broadcasting Council will be empowered to prohibit in Poland an on-demand audiovisual media service of a provider established in another Member State.

Video sharing platform providers

The most significant part of the draft refers to video sharing platforms and, following the Directive, regulate some of their activities. VSP providers should report their services for listing in the register kept by the President of the National Broadcasting Council.

VSP providers may not allow their platforms to carry content that:

  • may impair physical, mental or moral development of minors, without appropriate technical measures or
  • incites to violence or hatred against individuals or groups of persons on any grounds or
  • enhances committing a terrorist offence or child pornography.

The draft imposes the obligations on the video-sharing platform providers to take appropriate technical measures to protect minors from inappropriate content and to allow users to take such measures.

There are also some other audiovisual commercial communications requirements attached to VSP providers. The draft sets out obligatory provisions of VSP Regulations, among others, the rules of marking audiovisual works with respect to minors’ protection or rules of commercial communications. There is a special procedure indicated for settling disputes regarding users’ content that is in violation of legal provisions. The National Broadcasting Council should be an authority competent to settle VSP provider-user disputes. The President of the National Broadcasting Council will also be competent to settle disputes regarding users’ claims that content on given platforms violate the law. In case of users that are consumers, a special out-of-court settlement procedure may apply. The President of National Broadcasting Council is also competent to impose a financial fine on VSP providers if they violate certain legal obligations.

Conclusions

The draft regulates a lot of significant issues and in many cases imposes restrictions that may make Poland less attractive to media service providers. The proposal has been published on the government’s website and is now under review by various public authorities, so the final version may still vary from this draft.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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