New Federal Bill on Media Law Approved By the Belgian Government (Baker KcKenzie)

Authors: Daniel Fesler, Michaël De Vroey and Margo Allaerts (Baker KcKenzie)

Publication date: 11/02/2021

In brief

On 15 January 2021, the Belgian government approved a preliminary federal bill (Bill) transposing the Audiovisual Media Services Directive (AVMSD), which revises the obligations vis-à-vis linear and on-demand audiovisual media service (AVMS) providers and proposes a new regulatory framework for Video-Sharing Platform Services (VSPS). 

This Bill is introduced at the federal legislative level, meaning it will apply with respect to operators providing services that are not exclusively directed to the Dutch- or French-speaking community in the Brussels-Capital Region, complementing the jurisdiction of the Flemish-, French- and German-speaking Communities. The federal media regulator, the Belgian Institute for Postal Services and Telecommunications (BIPT), will remain responsible for the supervision of compliance of the new law.

Updated rules for linear and non-linear AVMS providers

The first main change concerns the consolidation of content obligations of linear and on-demand AVMS providers, save for certain exceptions such as the obligation of on-demand AVMS providers to devote a certain share of the transmission time/catalogue to European works. 
The Bill also proposes new provisions that are applicable to both linear and on-demand AVMS providers, including:

  • Political independence of AVMS providers whose services are distributed via a closed distribution platform;
  • Protection against modification and overlay of content for commercial purposes; 
  • Obligations to make their services accessible for persons with a visual or hearing disability; and 
  • Expansion of the rules concerning product placement.

Transposing Articles 3 and 4 of the AVMSD, the Bill introduces a mechanism to combat forum shopping as well as an authorization for the BIPT – in cooperation with the European Commission – to impose sanctions on AVMS providers falling under the jurisdiction of other Member States in the event of serious infringements of the content provisions of the Bill. 

It is noteworthy that the Bill, contrary to the French- and Flemish-Community draft decrees, does not impose an obligation on on-demand AVMS providers under the Belgian federal jurisdiction to contribute financially to the production of European works. By extension, it did not use the option provided in the AVMSD to deviate from the country-of-origin principle by subjecting AVMS providers established in other EU Member States targeting audiences in the Brussels-Capital, to such investment obligation.

New legal framework for VSPS

As a second novelty, the Bill introduces an entirely new chapter of legislation applicable to VSPS. The definition of VSPS under the Bill is the same as the one provided in the AVMSD, being a service (i) of which the principal purpose, a dissociable section or an essential functionality is devoted to providing programs or user-generated videos for which the VSP provider does not have editorial responsibility, (ii) in order to inform, entertain or educate, by means of electronic communications networks, and (iii) the organisation of which is determined by the VSP provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing. This definition captures classic online platforms providing user-generated content such as YouTube, but other social media platforms may potentially come within the scope of this legislation, depending on the significance and organization of programmes and/or user-generated videos therein.

The provisions applicable to VSPS in the Bill stay very close to the wording of the AVMSD, and subject VSPS providers under the Belgian federal jurisdiction to a number of obligations. The most significant obligations can be summarized as follows:

  1. Prior registration requirement with the federal media regulator for each intended VSPS;
  2. Obligation to take measures to protect minors and users in general against certain (harmful) content;
  3. Transparency obligation with respect to commercial communications.

The Bill confirms that the rules regarding intermediary immunity with respect to mere conduit, cashing and hosting activities, as provided in the E-Commerce Directive and transposed into the Belgian Code of Economic law, will also apply to VSPS providers.

Entry into force

The Bill has already been reviewed by the Belgian Data Protection Authority in January 2021. It is now submitted to the Council of State for legal review, and must then be voted by the Federal Parliament. Once enacted, the new federal media law will amend the existing Law of 5 May 2017 on audiovisual media services in the bilingual Brussels-Capital region. Belgium will, in any case, have missed the implementation deadline of 19 September 2020 with respect to both the federal and Community-level legislations.

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