Netherlands

[NL] Dutch Media Authority begins the monitoring of popular video-uploaders

IRIS 2022-7:1/17

Arlette Meiring

Institute for Information Law (IViR), University of Amsterdam

On 17 May 2022, the Commissariaat voor de Media (Dutch Media Authority) announced that as of 1 July 2022, "influential video-uploaders" will have to ensure their compliance with the Mediawet (Media Act). The new "Policy Rule for the qualification of commercial on-demand services 2022" clarifies which video-uploaders must register with the Media Authority and will be subject to "active monitoring".

It is nothing new that entities uploading videos to video-sharing platforms may fall within the scope of the revised EU Audiovisual Media Services Directive (AVMSD) (see IRIS 2019-1/3) and the Dutch Media Act (see IRIS 2021/24), i.e., in the case their services can be considered as "audiovisual media services", and more specifically, as "commercial on-demand media services". However, the Policy Rule aims to provide some clarity on several matters. First, it elaborates on the criteria for commercial on-demand media services that are not mentioned in the Dutch Media Act but seem to follow therefrom, as well as from the AVMSD (Article 2(1) Policy Rule). For instance, commercial on-demand media services must be based on a catalogue (Article 3 Policy Rule), have as their principal purpose, or essential functionality, the provision of audiovisual media content to inform, entertain or educate the general public (Article 4 Policy Rule), have a mass media character (Article 5 Policy Rule) and constitute economic services (Article 6 Policy Rule). Second, it explicitly distinguishes between entities providing commercial on-demand media services through their own platforms, such as Netflix and Disney, and entities providing these services via third-party platforms, such as social media influencers using YouTube, Instagram and/or TikTok. The latter are referred to as "video-uploaders", who "often operate independently or in a small business" and "produce their content with limited means". Last but not least, the Policy Rule distinguishes between popular and non-popular video-uploaders. Since video-uploaders "do not always generate such an impact so as to justify regulation by the Media Act", the Policy Rule lays down specific requirements to determine which uploaders should fall under the Media Authority's active supervision. Video-uploaders with "limited activities", "a limited audience" or "activities of a hobbyist nature" are exempted from active monitoring and the accompanying administrative and financial obligations.

Registration with the Media Authority is necessary, if: (a) the video-uploader operates a YouTube, Instagram and/or TikTok-account with 500,000 or more followers or subscribers (mass media-requirement); (b) the video-uploader has posted 24 or more videos over the past 12 months (catalogue-requirement); (c) the video-uploader earns money, receives products or services, or gains other advantages - directly or indirectly - via the account (economic service-requirement); and (d) these advantages come to the benefit of a company that is registered by the video-uploader with the Dutch Chamber of Commerce (economic service-requirement).

The Media Authority recognises that audiovisual media services, in particular those offered via the Internet, can change over time with respect to their structure, presentation, reach and impact. Services may therefore be reassessed periodically.

Finally, the Media Authority notes that the monitoring of video-uploaders is likely to change in the future, as it is a relatively new phenomenon in Europe which will be shaped by experience and potentially by additional regulation. What is certain is that the threshold of 500 000 followers or subscribers shall eventually be lowered so that more video-uploaders become subject to monitoring.