The reporting obligation was introduced from September 2022 by the amendment to Act No. 132/2010 Coll., on on-demand audiovisual services (“AVS”). The amendment introduced a change to the AVZ regarding the reporting obligation of the audiovisual media service provider. A press release of the Council for Radio and Television Broadcasting (“RRTV”) dated 21 November 2024 offered a more detailed interpretation of the scope of the reporting obligation, namely RRTV implies that the reporting obligation also applies:
“(…) to natural persons who create audiovisual media content (e.g. vloggers, influencers) and offer it on platforms such as Instagram, Facebook, TikTok, etc., if the service they provide fulfils the definitional criteria of an on-demand audiovisual media service,”
because:
“(…) if the service is operated as an economic activity, that is to say, if the creator’s activity is aimed at generating profit; furthermore, if the main purpose of the service is to inform, entertain or educate the general public, or to address the general public through audiovisual content which is under the editorial control of the creator.”
Who does this obligation actually apply to?
According to Article 2 (1) (d) of the AVZ, the provider of an on-demand audiovisual media service is a natural or legal person who determines the way in which an on-demand audiovisual media service is organised and has editorial responsibility for that service.
We consider this to be inconsistent with the interpretation of the creation of the reporting obligation according to the RRTV.
While influencers have editorial control, they are not in a position to determine how on-demand audiovisual media services (“Posts”) are organised, as the organisation is generally determined by the social network concerned, through the algorithms used to display the Posts.
The objective and purpose of the AVZ, which is also confirmed by the RRTV in its press release, is to protect child viewers, regulate advertising or other commercial communications, protect consumers, and protect the rights of individuals and groups of persons.
Therefore, the definition of a provider under the AVZ should be seen in terms of the audience or viewers. An influencer has no ability to influence what viewers see, precisely because of the use of algorithms to target advertising to particular audiences, for example. The algorithms of the social networks themselves do not only function as a means of targeted advertising, but also to block potentially inappropriate content.
Consequently, the reporting obligation applies only to audiovisual media service providers who not only have editorial control, but who can also, in all possible cases, determine to whom a particular social media Post is displayed.
While the amendment is not a novelty, the RRTV’s expansive interpretation of the AVZ is. The explanatory memorandum to both the AVZ and Directive 2010/13/EU of the European Parliament and of the Council on audiovisual media services (“Directive”) shows that it is a response to the development of VoD services, which since 2010 have been in direct competition with linear television broadcasting and which were not envisaged by the existing regulations at the time.
Reporting obligations according to the RRTV
The provider is obliged to deliver a written notification of the commencement of their activities to the RRTV within 30 days from the date of the establishment of the trade licence. If they fail to do so within the stipulated period, they commit an offence of failure to comply with the reporting obligation and are liable to a fine of up to CZK 1 million.
If the reporting obligation should be fulfilled by every person according to the interpretation of the RRTV, then it would mean that not only influencers but every entrepreneur who promotes his business on the Internet is obliged to notify the RRTV of their activities. In 2023, there were 2,452,846 entrepreneurs in the Czech Republic[1]. Even if only half of these persons used the Internet to promote their business and therefore for the purpose of making a profit, then the RRTV and the processing of applications for registration would certainly have to be practically overwhelmed.
In the light of the above, we are therefore of the opinion that the RRTV’s interpretation is not accurate. The RRTV’s interpretation completely misses the objective and purpose of the Act, which is to respond to the new way in which content is produced and distributed in a non-linear way by services such as Netflix or Voyo and to extend the RRTV’s remit to control these services so that they do not have a competitive advantage.
Recent developments
Due to the ongoing negotiations between the Council for Radio and Television Broadcasting and the Ministry of Culture, it is appropriate to wait until further developments on the notification and registration obligations are known. We are monitoring the current developments closely and will keep you informed of any developments.
In case the RRTV has already notified you or you are not sure whether the reporting obligation applies to you, we are here to assist you.
[1] According to MIT statistics.
Mgr. Jan Heřmanský, attorney – hermansky@plegal.cz
Mgr. Eliška Vítková, junior lawyer – vitkova@plegal.cz
Mgr. Jakub Málek, managing partner – malek@plegal.cz
Gina Agatha Renotière, legal assistant – renotiere@plegal.cz
9. 12. 2024