Recently the National Broadcasting Council[1] (KRRiT) has published press releases reiterating that entities that provide VoD services[2] are required to register to be placed on the relevant list. Entities performing that service as at 1 November 2021 were required, under an amendment to the Act on Radio and Television Broadcasting[3], to register by 1 February 2022. Failure to comply with this obligation can lead to an administrative fine of twenty times the average monthly wage in the business sector. The KRRiT’s press releases caused an animated discussion on when and which users of video-sharing platforms (VSPs), i.e. entities posting audiovisual content for example on YouTube, TikTok, Vimeo or Twitch – can classed as VoD providers under that act. This consequently raises the issue of whether they are subject to numerous other obligations placed on them under the act (including obligations due to transposition of Directive (EU) 2018/1808[4].

An entity that shares audiovisual content via a VSP platform is classed as a VoD provider if all of the following criteria are met:

  • the main aim of sharing audiovisual content is to inform, entertain, or educate;
  • the provider shares programs (stand-alone audiovisual content) for commercial (gainful) purposes as part of their business activity;
  • the programs are available in a catalogue (dissociable set of programs, for example a YouTube channel is a catalogue of this kind);
  • the content is made public, i.e. audiovisual content can be accessed by an unspecified group of users at a time of their choosing;
  • the author is responsible for the editorial content of the programs that make up the catalogue (i.e. they decide what audiovisual content will be shared via the VSP).

In view of the nature and functionality of standard VSPs[5], to assess whether a particular user who posts content via a VSP can be classed as a VoD provider, first the nature of the audiovisual content has to be assessed (the aim is to inform, entertain, or educate) and it has to be determined whether the audiovisual content is shared for commercial purposes (the content shared on the platform is intended to generate earnings for the user-author). If these criteria are met, a user who posts content on a VSP can as a rule be classed as a VoD provider.

There will be no grounds for classing a VSP user as a VoD provider under the RTV Act only if the criteria described above are not met, in particular if audiovisual content is not shared for commercial purposes (for example content is shared in a group with a common interest), and the content does not inform, entertain, or educate (for example the catalogue only contains content of a promotional nature[6]). This also applies if the VSP user is not subject to national jurisdiction (for example their place of business is in a different EU country[7]). This also means that they do not have the obligation to register with the Chairman of the National Broadcasting Council or other obligations placed on VoD providers under the RTV Act[8].  

[1] A Polish state watchdog that defends freedom of speech, the right to information, and the public interest in radio and television broadcasting.

[2] Audiovisual media service providers delivering content selected by viewers (‘on demand’) over an electronic network for watching at a time of their choice.  

[3] Radio and Television Broadcasting Act of 29 December 1992 (Journal of Laws of 2020, item 805 as amended) (RTV Act).

[4] Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending 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 (Audiovisual Media Services Directive) in view of changing market realities.

[5] Under the RTV Act, a VSP is a service provided electronically in this area of business activity, if the main purpose or fundamental function of the service or a dissociable part of the service is to share programs, user-generated video, or other content with all users, to inform, entertain, or educate, where the service provider does not bear editorial responsibility, but the provider decides how the content is arranged, including automatically or using algorithms, in particular by displaying, flagging, or sequencing.

[6] See CJEU judgment of 21 February 2018, C-132/17, Peugeot Deutschland GmbH.

[7] Laid down in detail in article 1a of the RTV Act.

[8] However, it should be noted that the scope of the obligations referred to in the RTV Act (other than the registration obligation) may vary depending on the nature of the VoD provider.