Who: French Government, Ministry of Culture, Providers of video-sharing platforms
Where: France
When: March 8th, 2021
Law stated as at: April 13th, 2021
What happened:
As part of the implementation of the Audiovisual Media Services Directive (AVMSD), the French Audiovisual Authority (Conseil supérieur de l’audiovisuel) has been empowered to ensure that video-sharing platforms providers under French jurisdiction comply from now on with specific requirements for audiovisual commercial communications that these providers market, sell or arrange themselves, but also ensure that these requirements be observed by the third parties.
More specifically, these requirements set out by the AVMSD are:
- compliance with the ethical rules already in force for audiovisual commercial communications broadcast on television and audiovisual media services on demand; and
- compliance with specific rules as to sponsorship.
Recently, a draft decree has been prepared in order to implement the above requirements into French law and the French Ministry of Culture organised recently a public consultation to finalise the proposed decree.
To date, the proposed decree faithfully reproduces the AVMSD provisions by providing that video-sharing platform providers shall ensure that audiovisual commercial communications do not:
- Use surreptitious advertising.
- Use subliminal techniques.
- Undermine human dignity, including discrimination based on: gender; racial or ethnic origin; nationality, religion or belief; disability, age or sexual orientation; encourage behaviour that is prejudicial to health, safety or to the environment.
- Cause physical, mental or moral harm to minors.
These audiovisual commercial communications (which must be readily recognisable as such) consist of images – with or without sound – that are designed to promote the goods, services or image of a natural or legal person pursuing an economic activity. These images might accompany or be included in a programme or a user-generated video in return for payment or for similar consideration or for self-promotional purposes. This includes television advertising, sponsorship, teleshopping and product placement.
In addition, the proposed decree:
- Extends the obligations on sponsorship already imposed on television advertising video-sharing platforms communication, for example, prohibition of direct inducements to purchase or rent products or services, including specific promotional references to those products or services.
- Specifies that, in the context of sponsorship, with the manufacture or sale of alcoholic beverages or tobacco products, vaping cannot be part of the main activities of the company to be sponsored (as stated in the AVMSD, “companies whose main activity is the manufacture or sale of electronic cigarettes and refill bottles” are specifically targeted).
Why this matters:
The proposed decree is consistent with the AVMSD by extending to video-sharing platforms the principles already applicable to publishers of television services (provided in Decree No. 92-280 of March 27, 1992, known as “television advertising”) and to publishers of on-demand services (provided in Decree No. 2010-1379 of November 12, 2010).
Responses to the public consultation (ended on March 21, 2021) are not yet public and no clear agenda on its enactments has been published yet. However, once adopted, the proposed decree should be immediately applicable as the deadline for Member States to bring into force the laws, regulations and administrative provisions necessary to comply with the AVMSD was September 19, 2020.
