NAC TO CONTROL “DIGITAL” ADVERTISING

by Raluca Tudoroiu, Senior Associate, RTPR and Filip Marinau, Junior Associate, RTPR (Radu Tărăcilă Pădurari Retevoescu SCA)

If, in recent years, traditional media has been challenged by the question of “when?” in relation to broadcasting gambling commercials, the turn of “digital” media has now come as well: the National Audiovisual Council (NAC) will soon oversee video sharing platform providers (the likes of YouTube, Facebook, TikTok, etc).

Raluca Tudoroiu

Directive (EU) 2018/1808 (AVMSD 2018), amending Directive 2010/13/EU on audiovisual media services will be transposed into Romanian legislation (with a delay of over a year past the deadline) with the amendment of Law no. 504/2002 on the audiovisual through the draft law PL-x no. 430/2021 (the Bill), which is currently registered in the Senate – the decision-making chamber – for debate.

Who is the Bill addressed to? The expected changes are the answer to the growing popularity of “digital” advertising, through platforms that enable the creation of user generated content and on demand video services. These “products” of technological progress – and implicitly, the broadcasting of commercials through them – are to be subject to regulatory standards similar to linear audiovisual media (television, radio).

The new subjects of the audiovisual legislation seem to be:

• Economic operators managing services which include dissociable sections dedicated to audiovisual media services;
• Video sharing platform providers;
• Channels or other audiovisual services provided through a video sharing platform, under the editorial responsibility of an audiovisual media service provider.

Filip Marinau

The Bill targets media service providers and video sharing platforms under Romanian jurisdiction, respectively those under the jurisdiction of a state outside the European Union, but whose content can be accessed on the territory of Romania. Their record will be kept by the NAC through lists published on the institution’s website, for the update of which, any provider or new platform entering the market has the obligation to notify the intention of carrying out its activity in Romania.

Increased control over video content. The Bill announces enhanced means of protecting minors and managing illegal content. Among others, the “digital” media will be subject to the legal ban on broadcasting programs that may affect the physical, mental or moral development of minors. The protection of minors may be ensured by selecting the time of broadcasting, coding, age verification tools or other technical measures, while restriction of access must be proportionate to the potential negative effects of that program.

• For providers of video sharing platforms, the Bill stipulates additional obligations, including the establishing of transparent and easy-to-use systems that allow users to report and classify content that is subject to the ban, the obligation to implement age verification systems (could it come to a general restriction of showing gambling ads to users who have not verified/ specified their age or do not have a user account?), as well as parental control systems under the control of end users for the content that may affect the physical, mental or moral development of minors.
• At the same time, the Bill prohibits the processing of minors’ personal data collected or otherwise generated by the audiovisual media service providers in the performance of the mentioned technical protection measures for commercial purposes, such as direct marketing, profiling and behavioral advertising.

Self-regulation and co-regulation. In order to stimulate media service providers to take on responsibility, the Bill takes over two complementary compliance instruments from the European directive. Self-regulation and co-regulation are mechanisms that allow the adoption of codes of conduct, guidelines or common practices by market players.

Could this be an asset for economic operators and professional gambling associations/ organizations? As gambling advertising does not yet have a clearly defined regime and is still the target of NAC, which imposes various broadcast intervals or content standards by sanctioning decisions, rules voluntarily established by market players and adapted to the specifics of this field would be welcome.

NAC and online censorship. NAC remains the sole regulator in this area, while its jurisdiction is extended to the online field, as well as in relation to European bodies.

The Council will monitor and be able to remove, block or restrict video content or channels on video sharing platforms by reasoned decision. In implementing these responsibilities, NAC may also order that restriction of content or access to video material by the platform provider, or restriction of access to the platform by storage space service providers, or removal of the platform domain name by DNS register operators.

At the same time, the NAC will be able to impose stricter or more detailed rules on service and media providers, through regulatory decisions, where they will be justified in terms of proportionality and public interest.

In past decisions regarding gambling, the NAC has frequently invoked reasons such as compliance with the principles of child protection, fair public information, consumer protection in order to justify censorship of television or radio advertising campaigns, either in terms of content or broadcast times. A similar practice could be developed with regard to online gambling advertising, including through video clips or user-generated materials.

Freedom of reception and retransmission. The Bill reaffirms the European law principle that the reception and retransmission of any audiovisual media service legally provided by providers under the jurisdiction of a Member State should be carried out freely. Temporary restriction is limited to serious cases such as incitement to violence or hatred or public instigation to commit terrorist offenses. The NAC must notify the European Commission of the ordered restriction and the decision of the latter (including the removal of the restriction) is binding for the Romanian authority. This principle proves especially relevant nowadays, as countries such as Norway and Finland, with strictly controlled monopoly regimes in the field of gambling, continue to block the broadcasting of advertising content by organizers from other Member States, despite the implementation of AVMSD 2018.

Licensing. The Bill extends the scope of licensing to providers of radio and television programs through any type of electronic communication networks.

Conclusions. The new legal framework’s scope of application should remain limited to services whose main purpose is to provide programs for information, entertainment or educational purposes. Gambling, therefore, remains excluded from the scope of the new legislation, save for related advertising, which will be subject to the new regulations, including when it is broadcasted online.