ONLINE PLATFORMS

Eugénie Robillard – 2024-2025

Module n° 1: historical perspective,

qualification of services and country of
origin principle:
INTRODUCTION :
1. What are platforms ?
-Those are intermediary but it is more than that.

-There is also the question of the responsibility of the content of others (responsibility)

=>sharing of content + editorial responsibility

We will speak about one type of platform which has such kind of responsibility.

Ex: Netflix decides of the content

Not attached to a specific definition

2. Why are we regulating?

What are the potential issues? To protect people that use the platforms against illegal
contents + if we don’t do anything then the platform will decide itself on what is good or not.

Actually, there are multiple reasons: protect us as users and need of control by the states on
the platforms (tack back control).

3. What are the pros and cons of the regulations?

-Pros: need to protect users/citizens bc it is there that we have the information’s, political
advertisings, recommending system,…

-Cons: risk that the State controls too much and that it decides what people can or cannot
do. There is a risk of limit the freedom of speech. If we go too far (we are lucky, we have
safeguards), the more power we give to States higher the risk is to go too far and to go on
the other way.

Ex: US, you go too far in the regulations according to the freedom of expression.

It is become such a political area as well. In a way, we could think that those regulations are
easy to implement but now, it is more political than ever. Nowadays, the pros and cons,
those two arguments clash every day.

4. 5 modules:
-Historical perspective, qualification of services, country of origin principle, derogations

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-Video streaming and video sharing platforms

-Digital Services Act

-Terrorist content, child pornography

Illegal/harmful content: harmful is not necessarily illegal but it hursts people. For example,
when we expose children, it could be harmful. What becomes harmful, it is when it is
widespread and we have the intent to harm. This concept is complicated.

-Political advertising, P2B Regulation

A. HISTORICAL PERSPECTIVE:

-2000: no platforms existed at that time; the directive was adopted before digital services. At
that time, we knew those services will emerge. This directive has been replaced by the DSA.
So, some of the rules are not applicable anymore. Nevertheless, all the other provisions
(derogations, functioning EU market=more generale ones) are still valid. So, this directive is
still relevant and used in some cases.

-2007: Audio visual media services directive (AVMS): it is an incredibly important piece of
legislation. Initially, it covered TV services. The objectives were for those services to be
viewed and received cross borders, so in all of the EU member states. We wanted for those
services to circulate freely.

It was revised. It has been harmonised since 2007.

-2018: the AVMS was again extended in scope and it was for video sharing platform like
YouTube. This directive has been progressively extended. Moreover, the electronic
communication code (EECC) came to existence. This code was revised, it was extended to
covers more services like WhatsApp.

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-2019: the adoption of copyright in the DSM: online content sharing platforms.

-2021: terrorist content

-2022: DSA + DMA

It is not done. At the beginning in 2000, it was a slow start, it was cool. But it was not that
much regulated at that time. One of the key characteristics now is that the sector is
regulated because we have regulators that make sure that the rules are applied on the
territory where they have jurisdiction. Before the e-commerce directive, it was a no man’s
land without any regulator. It is a regulated sector now.

All the regulations are without prejudice of the horizontal regulations (e.g. consumer
protection, data protection, copyright). The regulations above are sector specific. But for the
horizontal regulations, we have the consumers (whatever the nature of Business, it is about
business and consumers), data regulations (it is not applicable to a specific sector but when
we treat data).

 From 2018, it became wild at the EU level. Something new happened every year
(problem-driven approach) …

All came from the president of the European commission of the time (Juncker Commission
2014-2019). The legislations we’ve seen have been proposed, except for DSA and DMA,
between 2014 and 2018. The idea of Juncker what to say while we have a problem, we must
add a legislation (problem-driven approach). It resulted in a complex situation and complex
mix.

Platform communication was the

first view: problem-driven approach
=>interesting historical perspective

 That guy identified a few problems:

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-Level playing field: at that time, they tried to address the level playing field issue between
operators that were already on the market (telecommunication) and the new entrants like
WhatsApp

Ex: TV services and now, we have Netflix and when they entered, they wouldn’t have any
regulation.

If we regulate one group, there is no reason not to regulate the new entrants. It is the idea
behind the level playing field issue.

-Responsible behaviour: operators must behave responsibly (it is also a level playing field
content), there are multiple reasons to regulate.

-Transparency and fairness: to regulate dominant platforms. We wanted to make sure that
those dominant operators don’t undermine the competition in the market and influence
badly the market.

various reasons as regulations (one way to put things in boxes).

-Open markets.

 A lack of harmonisation within the EU :

Another big problem/another fundamental reason to regulate is that the member States
anticipated these problems and started themselves to regulate at the national level. They

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are allowed to do it but it is not good for the EU. For instance, Germany started to adopt its
own DSA and they said when the platform should not display, on the platform itself, content
that constitutes criminal activity. But we had always an extraterritorial application (the
platforms were not in the EU) and all those platforms must respect the legislation. It was the
first problem.

Then, the French (another important state in the EU) adopted the AVIA law. Now, it has
been replaced because of the adoption of the DSA. And the UK also adopted its own
legislation, the online safety act and it is really important for online platforms. It also had
another extraterritorial effect.

For these reasons, the commission wanted a European alignment and made some concerns
about this behaviour.

These countries opposed their legislations. So, it asked the question of TRIS. TRIS is an
important database. The purpose of it is that when a MS decides to introduce rules that
affect online platforms (information society services), it needs to submit its draft legislation
to the European commission. The procedure under the TRIS database aims to ensure that
the European commission can check that the national legislation is align with the internal
market and will be compatible with existing EU regulations. It is important to respect the
procedure because when there is no notification, the adopted legislation would be void.
There is a stand still period of 3 months when the EU commission and the others MS can
submit comments. If the EU commission submits a reasonable opinion that the legislation is
contrary on EU legislations/internal market, the MS will have to adjust, to fix the problem.

To come back to the legislations adopted by the 3 MS, their legislations were contrary to e-
commerce directive because they provided to be applied to non-national. They shouldn’t be
existed.

The problem is that de facto, those countries are so influential that the commission gave up.
In those types of scenarios, there is a balance. When this starts to happen, it is a trigger for
the EU to adopt legislation and it is a justification for such new legislations.

The legal basis of those legislations is art. 114= functioning of the market

on paper, they shouldn’t have adopted the legislation but it pushed the commission to
adopt something = one reason why the commission adopted the legislations

 A new approach: the holistic approach to digital platforms:

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Von der Leyen Commission - 2019-2024, we need a realistic approach for those platforms.
We need something more horizontal for more platforms and more content. This is why we
have the DSA and DMA, less sector specific.

For her second mandate, Von der Leyen put the emphasis on reviewing some directives and
the rest is focused on implementation and simplification because we had a lot of legislations
in the last models. Like that we can be sure that platforms are regulated properly.

B. QUALIFICATIONS OF SERVICES:
Which types of services are we talking about?

We are for now talking about the main ones.

 e-commerce directive: covers ISS

=Information society services (ISS): service provided at a distance by electronic means at

individual request (Art 2 of Regulatory Transparency Directive) =something we ask for

Adopted in 2000 but interpretation from CJEU. It has been interpreted: it can be a free
service as long we have advertising or paid services (public services could be qualified as ISS
if we have advertisings).

It covers a very large range of services. For instance, a music service could be that. We have
YouTube, Amazon Prime, WhatsApp, Spotify.

But progressively some of these services have been included in other pieces of legislation:

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They have been interpretation by the court. It said that some services cannot be qualified as
ISS. These services can be included in other regulations because it was the first directive and
it was light.

We have two main cases to illustrate the situation:

Uber case: Uber app for taxi is not ISS because Uber exercises an amount of control
over the drivers of taxi (it selects the drivers; they have certain cars with standards chosen
by Uber and it sets the price). It is a composite service, transport and intermediary but it is
more a transport service because Uber has a huge control notably because it sets the price.

So, it cannot benefit from this directive.

It is relevant for DSA. It is intermediary service= ISS …So, it is not be covered either by the
DSA.

If we think of Uber eats, the restaurants set the price. So, here it is an ISS because there is
not a decisive influence of Uber.

Airbnb case: we go online, we book the Airbnb and the court said it is an ISS because
we go to somebody privacy and it is the hosts that are setting the price. There is no decisive
decision from an intermediary.

Some other regulations refer to SSI

 AVMS: it covers audiovisual and share services:

It covers audiovisual media services and in a separate chapter, it covers the share services as
well. They have a different logical and definition but the directive covers both.

Audiovisual media services (TV channels Definition of video-sharing platforms

and VOD) (VSPs)
Services (i.e. provided for remuneration) or Same
dissociable section of another service

= This notion of services, it is the main

service or a part of it.

Principal purpose to provide programmes Principal purpose or an essential

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 (i.e. individual item of any length) to inform, functionality to provide programmes, user-
entertain, or educate the general public generated videos or both to entertain,
educate, inform the general public
=The principal purpose is to provide
program. So, moving pictures with or = Separately, we have the idea of video
without sound. Anything that is animated is sharing platform. It is a service and the
a program. A program itself is any item principal purpose is to provide programmes
within a service of every length and the (again this notion) or use generated video
purpose of the program is to inform, (we generated ourself) to entrainment,
educate. educate or inform

Editorial responsibility (effective control) No editorial responsibility but determines

organisation, including by algorithms
= A key notion is that we need editorial
control (effective control about depending). = BUT there is no editorial responsibility.
They are not going to decide the content
In a normal TV service, we have a schedule they edit. It just enables the possibility to
during the day, the service provider put the content on the platform.
determines what would be included in the It doesn’t preclude that the platform
schedule and the notion of effective control doesn’t do something. The platform
comes. determines the organization but by
For Netflix, this control is there when Netflix examining the content it doesn’t give them
puts together a catalogue of films and editorial responsibility! It is the way of the
series/when it choses elements that will framework.
composed the catalogue.
It is the notion of editorial control in linear
or non-linear environment.

Linear broadcast or on-demand -

By electronic communications network Same

 The important thing is that all this framework has to do with audiovisual content so,
moving pictures with or without sounds (essential functionalities have to be audiovisual
contents and this is why this regulation is complicated).

 EECC:

It covers electronic communications services and it is : the

traditional communication such as interpersonal communication
services (GSM) or internet access services or conveyance signals
(including broadcasting).

It excludes services providing, or exercising editorial control over, content!

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Historically, the e-directive was so light and instead of opening the directive and including
more rules to protect citizens/minors, the e-commerce directive for years has never been
revised. What has happened is that the AVMS and EECC were revised and some of the
services of e-directive were included in these two directives. For instance, Amazon prime is
included in AVMS. YouTube has also been included in AVMS. WhatsApp has been included in
the code of communications. And the DSA also added a number of services.

 Exercises:

-Uber: nothing =>transport service

-Vinted: ISS under e-commerce

directive =>just goods

-Amazon prime: audio-visual media

service + ISS

-MediaMarkt: ISS

-Proximus (IPTV): enabling the

transmission of the service, the
traditional role =>it provides the convince of the signal, it is an electronic communication
service and it could be ISS.

Proximus TV with their own channels, then they become audiovisual media service.

In the audiovisual service, in a recital (interpretation articles) it is written that when a service
mainly transmits for others, it is not an audiovisual. The main retransmission of services
coming from others is not an audio-visual media service. It is even more complex when we

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turn to the national level introduced another category of service which is distributing
services. They put obligations on distributor.

-Netflix: audiovisual media service + ISS (and it would become video sharing if people can
start sharing videos)

-Airbnb: ISS (not because we can chat that we have electronic communication service).

-Messenger: if we have an ancillary part, it does not disqualify the main qualification =>we
need to be aware of what the service looks like and its features

-Dropbox: ISS (ancillary the video sharing)

-Twitter: ISS (and it depends on the features)

-LinkedIn: ISS + video sharing platform because part of the services

-WhatsApp: ISS + electronic communication service

-Facebook: ISS + video sharing

C. COUNTRY OF ORIGIN PRINCIPE (ECOMMERCE AND

AVMS DIRECTIVES):
AVMS and e-commerce directives are based on this principle.

It means that a service provider would be regulated in the country where it is mainly
established on the basis of the compliance of the regulations of that MS. And it wouldn’t be
hinder by the regulations of the legislations of the MS of destination.

So, respect of the legislations of the country of establishment and not the regulations of
the country of destination

It is how the internal market works but there are problems with this rule. We have a
negative side which is the forum shopping. It is the idea that a company, before deciding
where established itself, it will think to establish itself in the country that is most
advantageous. All the tech companies will be established in the EU like that they can benefit
of the regulations but first, they shop for the best place where they will be treated good. In
Ireland mainly for tax reasons. It is a big consideration.

Before, a lot of companies also established themselves in Ireland because Ireland had a
regulator that wasn’t good (few people in the office, rules were basically inexistent). It is not
the case anymore because the regulator has a good functioning to emulate properly all the
services.

=>Ireland before for fiscal reasons and regulatory reasons

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Forum shopping is a real issue and when it is cross boarders it creates tensions between MS
(second issue of the principle). There has always been a tension and this is why we switched
from directive to regulation in order to have less new things (or minimum harmonization).

 Ecommerce directive (art. 3):

Principe:

*Country of origin principle (MS of establishment must ensure compliance with its rules)

* Internal market principle: prevents MS from restricting incoming services for reasons

Exceptions:

-Areas not in coordinated field

-MS can derogate in exceptional circumstances+ respect special procedure (art. 3.4)

-Areas listed in Annex: IPR, contractual obligations concerning consumer contracts, freedom
of parties to choose applicable law to contract..

AREAS OUT OF SCOPE OF DIRECTIVE

 For the country of origin, it prevents MS from restricting incoming services for reasosn.
We have exceptions. If a MS wants to restrict an upcoming service. It has to respect a
procedure explains in ecommerce directive.

The video sharing platform that is regulated under AMWS, it is regulated in another
chapter. So, the principle, is the one of directive and not the other directive.

The principle and the derogation are not the same in the two directives.

The ecommerce directive is still relevant for video sharing and all services that are not
regulated in audiovisual media service.

The principle and exceptions sometimes not apply. In the area of copyright, we rely on
territoriality principle and not the country of origin. Another area is consumer protection is
out of the scope. When there is an issue of buying goods online. And online gambling
services is outside of the scope (it is ISS but it is out of directive). The procedure is in an
annex.

Concept of Coordinated field:

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Derogations:

-Only applies in relation to a specific service

- National measure in question must be necessary for either of the following reason:

-ISS in question must prejudice these objectives or risks to do so

This derogation procedure only enables a MS to block a specific service on a specific

territory. We will block because it is necessary to implement public policy. There are specific
cases in which we can block.

-There is a derogation procedure (MS as to inform the commission and other MS):

1° Measure must be proportionate to objective

2°Before taking measure, MS must

– Ask MS of establishment to take measure and MS failed to do so

– Notify EC and MS of establishment of intention to take measure

– (Urgent procedure also possible)

3° EC to examine compatibility of measure with EU law ‘in shortest possible time’

4° If incompatible, MS must refrain from taking measure or put an end to measure

Excluded areas (art. 1.5):

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Taxation, cartel law, data protection, activities of notaries, legal representation before
courts, gambling (incl. lotteries and betting).

It is completely excluded from the ecommerce directive.

CJEU rulings: CJEU C-376/22 :

-9 November 2023

-Communication Platforms Act also applies to platforms not established in Austria (if
thresholds are met)

-KommAustria decided that Google, Meta and TikTok are covered so they lodged an appeal
against these decisions, case went to Supreme Administrative Court

-Request for a preliminary ruling

It was to do with Austria. It has a piece of legislation; it is like the DSA. It still exists now.
What’s wrong is tat these big tech companies (not established in Austria) had to removed
illegal contents in a certain time so, for services outside of Austria. The court asked itself if it
was compatible with internal market? It is here too abstract and general to be compatible.
What it could have done is that in particular case, your services breach my legislation so, you
need to stop. In general, it is not ok.

All the cases are still relevant, MS still try to apply their own legislations.

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