Due to the advancement of digital technologies and online communication tools, the significance and impact of online platforms have grown. These platforms serve as spaces where users, organizations, companies, and interested individuals can share videos and multimedia content and even engage in live broadcasting. Referred to as video-sharing platforms, notable examples include YouTube, Vimeo, TikTok, and Facebook Watch. While these platforms have simplified the sharing of opinions and information, they have also brought some challenges regarding the accessibility and dissemination of illegal and harmful content. To address such issues, the European Union introduced amendments in 2018 to the Directive on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services[1] (referred to as AVMSD). This directive serves as the primary legal framework within the European Union for regulating media and on-demand audiovisual media services.[2]
Under the Association Agreement between the European Union and Georgia[3], Georgia is obligated to harmonize its legislation with the directives of the European Union. This includes the directive on audiovisual media services, which is a prerequisite for Georgia's complete engagement in the "Creative Europe" program[4]. In line with this requirement, significant modifications were made to the Law of Georgia on Broadcasting towards the end of 2022, with a specific focus on video-sharing platforms. This analysis examines the implemented changes, their adoption process, and the potential implications they may have on the realization of digital rights.
On September 7, 2022, the deputies of the "Georgian Dream" party introduced the draft law on Broadcasting in the Parliament of Georgia. The draft law was published on September 13 and was passed in the first reading on September 19 during a parliamentary session without any public discussions or debates. As the explanatory note[5] accompanying the draft law mentioned, these changes were needed to align promptly with the European Union's directives. Therefore, on November 3, 2022, the Parliament of Georgia requested an independent legal opinion from the Council of Europe regarding the proposed amendments to the Law of Georgia on Broadcasting to determine if the amended law would comply with the EU’s Audiovisual Media Services Directive (AVMSD) and European standards in general.
CSO representatives were concerned over the lack of transparency throughout the process and the content of the draft law from the very beginning. The second reading of the draft law was scheduled for November 28 without notice. The expedited timeline was again justified as necessary to fulfill the commitments made to the European Union.[6] During the same session, Deputy Tamar Kordzaia presented an alternative draft law developed by non-governmental organizations, but it was disregarded and not taken into consideration.[7]
The explanatory note also emphasized that Georgia failing to submit a national report on the progress made in the mentioned area to the European Commission by September 30, 2022, would hinder Georgia's participation in the "Creative Europe" media and intersectoral initiatives outlined in the agreement above.
On February 22, 2023, the Council of Europe Directorate General of Human Rights and Rule of Law submitted a legal opinion to the Sector Economy and Economic Policy Committee of the Parliament of Georgia. According to this opinion, the Broadcasting Law does not align with AVMSD and there are a number of provisions that would likely be in breach of Article 10 - freedom of expression.[8] The experts from the Council of Europe thoroughly evaluated the Law of Georgia on Broadcasting and its recent amendments, covering various aspects, including:
The Legal Opinion proposes more than 60 major recommendations to address the identified gaps. Some of the highlighted issues include the lack of inclusivity in the adoption process of changes, licensing and authorization processes that are irrelevant to video-sharing platforms, sanctions for violations of rules for the protection of minors, and more. The legal opinion places particular emphasis on newly introduced definitions in the law, such as hate speech, media services, video-sharing platforms, and editorial responsibility. Given the novelty and increasing significance of regulating video-sharing platforms in the digital space, IDFI focuses explicitly on analyzing the changes and the identified problems linked to such platforms.
One of the notable consequences of the legislative amendments is the transition of video-sharing platforms into regulated and authorized operations. Previously, the commission possessed specific powers regarding video-sharing platforms, even though the service was neither authorized nor regulated beyond the scope of electronic communication and consumer rights protection.
With the new amendments, a definition of a video-sharing platform was established, leading to its regulation under the commission's authority in terms of audiovisual services. According to the law, a video-sharing platform service is described as a service that primarily aims to provide programs and/or user-generated videos, without editorial responsibility, in order to inform, entertain, or educate the general public, by means of electronic communications networks. The organization of programmes and/or user-generated videos, in particular displaying, tagging, and sequencing, is determined by the video-sharing platform provider, including by automatic means or algorithms. The absence of editorial responsibility distinguishes a video-sharing platform from media services. Specifically, the video-sharing platform provides a space for users to upload videos, but it does not assume any editorial responsibility for the content, since it is not the creator. This is in contrast to on-demand audiovisual media services, which do carry such duties.
Notably, the law applies to video-sharing platform service providers that meet one of the following legal criteria:
a) Established in Georgia.
b) Having a parent enterprise established in Georgia.
c) Having a subsidiary enterprise established in Georgia.[9]
d) Being a member of a group that includes an entity established in Georgia.[10]
Consequently, the regulations that have been adopted will apply to prominent Georgian platforms like MyVideo.ge.
It should be noted that the recommendation of the Council of Europe indicates that the definition of video-sharing platform should be modified, with the term "organization of video-sharing platform services" being replaced by "organization of programs and/or user-generated videos". This is important, to the extent that the organization of the video clips placed on the platform (e.g. by topic or the algorithm of video offers) does not equate to assuming editorial responsibility.
According to EU directives, video-sharing platforms are not responsible for videos and advertisements directly shared by users. However, the service provider of the video-sharing platform is responsible for taking legal measures to protect (and not prevent) users from illegal and harmful content for minors. Therefore, in article 454, when considering the obligations of the service provider of the video-sharing platform in relation to the distribution of inappropriate video clips, programs, and audiovisual advertising communication, instead of the obligation of "prevention of transmission", it is important to highlight the responsibility of user protection, which eliminates the risks of editorial responsibility.
The list of potentially harmful content integrated in the Law of Georgia on Broadcasting, which the video-sharing platform must protect the users from, is also problematic. According to the conclusion of the Council of Europe, this list can have a serious impact on freedom of expression. In particular, the inappropriate consideration of materials with content aimed at discrimination of individual groups, as well as the indication that material containing signs of a crime stipulated by the Criminal Code of Georgia, is considered harmful. Instead, in accordance with European directives, instead of discrimination, emphasis should be placed only on incitement of violence or hatred. In addition, instead of the general basis of the Criminal Code, specific types of crimes should be specified - terrorism, sexual exploitation of children, and crimes related to racism and xenophobia.
In the context of the accountability requirements of video-sharing platforms, the entry in Article 70 of the law, according to which media services and video-sharing platform service providers are obliged to ensure that the programs, advertising, information about sponsors, and user-generated videos they host comply with Georgian legislation and license/authorization conditions, is contradictory. This form of accountability contradicts both the European directive and the entry in the law itself, according to which video-sharing platform services are exempted from editorial responsibility for material distributed through their platform. According to the conclusion of the Council of Europe, video-sharing platforms should be excluded from the scope of this article.
One critically important change implemented in the law expanded the circle of persons subject to authorization. In particular, in accordance with Article 362 of the law, mandatory authorization will be required for both on-demand audiovisual media and video-sharing platform service providers, which implies the mandatory authorization of the service provider at the National Communications Commission of Georgia - therefore also the extension of their jurisdiction. According to the first paragraph of Article 451 of the Law of Georgia on Broadcasting, a person wishing to provide video-sharing platform services addresses the commission with an application, the form of which is approved by the commission. Within 10 working days after receiving the application, the commission registers the applicant in a register of authorized persons, where the data of the declaration of conformity will also be attached and publicly accessible.
According to the assessment of the Council of Europe, the authorization system differs slightly from the licensing system and is not relevant for video-sharing platforms. Instead, the European directive requires simpler forms of registration for similar platforms to maintain their registers and updated contact information.
The issue of handling complaints in relation to video-sharing platforms received a negative assessment. The European directive prescribes service providers to develop transparent, customized complaint submission procedures for users[11]. However, The law of Georgia on Broadcasting[12] gives the regulator the authority to review complaints both in the case of audiovisual media services and video-sharing platforms, which is not in line with the directive's standards. Instead of reviewing complaints, the commission's role should be to assess the appropriateness of measures taken by video-sharing platforms in response to consumer complaints.
The following entry, according to which, "in case of violation of the conditions of authorization by the broadcaster, the interested person has the right to address the commission or the court", was also assessed as problematic. Instead, according to the conclusion of the Council of Europe, complaints that are not resolved by video-sharing platform service providers (as well as media service providers) should be considered by the Communications Commission first, and only then can the decision be appealed in court.
Article 552 of the law (prohibition of distribution of programs and advertisements containing hate speech and incitement to terrorism), according to which it is prohibited to distribute programs or advertisements that contain incitement to violence or hatred based on disability, ethnicity, social origin, gender, sex, and other characteristics, except in cases where this is necessary in connection with the content of the programme, is also contentious. It should be noted that hate speech is also prohibited by the European Union's AVMSD directive, but the definition given in the Law on Broadcasting is vague and requires clarification that critical and/or offensive expressions are not considered hate speech. Based on the Georgian context, the Council of Europe recommends that the mechanisms of co-regulation be improved and that the language of hatred remain an object of co-regulation.
The Institute for Development of Freedom of Information (IDFI) has produced numerous research papers regarding the regulation "on the provision of services and protection of users' rights in the field of electronic communications" issued by the National Communications Commission of Georgia, in which some of the grounds for "prohibited products" were vague and left a wide margin for interpretation, which also posed a threat to freedom of expression. Subsequently, the decision of the Constitutional Court of August 2, 2019,[13] on the one hand, considered the norms in question as substantive regulation of freedom of expression, and, on the other hand, defined the rules for the implementation and technical enforcement of the requirements established by the commission. IDFI was bringing attention to the commission’s inappropriate attempt to regulate freedom of expression.
In conclusion, the authority of the Communications Commission is expanded, and issues subject to self-regulation become regulated as a result of the legislative changes. The articles related to the distribution of programs containing hate speech are also contentious due to the associated risks of restricting freedom of expression. Implementing changes to the law with the motive of protecting consumer interests and harmonizing with the law of the European Union in an accelerated manner is also dubious. It is important for the National Communications Commission to ensure the involvement of the entire spectrum of interested parties that are directly affected by these important changes in the law in the process. In addition, it is necessary for the regulatory body to properly reflect the opinions presented by experts of the Council of Europe and the changes proposed in specific articles in order to bring the law in line with the specific directives of the European Union, including the regulations concerning video-sharing platforms.
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[1] Directive 2010/13/EU of the European Parliament and of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Official Journal L95, p. 1
[2] Directive 2018/1808 - Amendment of Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services. Available on: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02010L0013-20181218&from=EN
[3] Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part. The Sub-section 5. Available at: https://eur-lex.europa.eu/legal-content/en/TXT/PDF/?uri=CELEX:22014A0830(02)
[4] Agreement between Georgia and the European Union on the participation of Georgia in the Creative Europe Programme (2021 to 2027). Available at: https://matsne.gov.ge/ka/document/view/5379436?publication=0
[5] Explanatory note on the draft law of Georgia "On Broadcasting" regarding amendments to the law of Georgia. Available on: https://info.parliament.ge/file/1/BillReviewContent/305437
[6] Assesment of Media Advocacy Coalition regarding amendments to the Law of Georgia on Broadcasting. Available on: https://osgf.ge/mediis-advokatirebis-koaliciis-shefaseba-mauwyeblobis-shesakheb-kanonshi-shesatani-cvlilebebis-taobaze/
[7] The draft law introduced amendments to the authority of the commission concerning matters of "hate speech" and the "right of reply," as well as modifying the procedure for the immediate implementation of the commission's decisions.
[8] Opinion of the Directorate General Human Rights and Rule of Law on the Law of Georgia on Broadcasting. Council of Europe. Available at:https://www.coe.int/en/web/tbilisi/-/legal-opinion-on-the-law-of-georgia-on-broadcasting-proposes-its-revision-in-line-with-the-european-standards
[9] If the parent company is not headquartered in any of the EU member states
[10] If the parent company or any of its subsidiary companies are not established in any of the member states of the European Union
[11] Article 28b.
[12] Law of Georgia on Broadcasting. Article 14: https://matsne.gov.ge/ka/document/view/32866?publication=66#
[13] Regulating Inadmissible Content – What does the Constitutional Court decision of 2 August 2019 Change (2019). The Institute for Development of Freedom of Information (IDFI): https://idfi.ge/ge/regulating_inadmissible_content
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