The Law of Ukraine "On Media" ("Media Law"), which entered into force on 31 March 2023, was adopted to correspond to the current level of development of media technologies. Such media technologies as platforms for shared access to information and platforms for shared access to video ("Platforms") were outside the legal regulatory framework for a long time. However, the Media Law has changed this regulatory paradigm. In this overview, we summarise new regulations for the Platforms.
What is a platform for shared access to information?
The platform for shared access to information is a service that ensures on-demand storage and dissemination of users' data to an unlimited number of people ("Information Sharing Platform Service"). For the service to qualify for the Information Sharing Platform Service, the said storage and dissemination of users' information should not be insignificant and merely an auxiliary function of another service, nor it1 can be used without such service for both objective and technical reasons.
Social media platforms and messengers would likely fall within the Information Sharing Platform Service definition.
However, the Information Sharing Platform Services are not listed among actors in the field of media (Article 13 of the Media Law). Hence, Information Sharing Platform Services providers do not have specific rights or obligations under the Media Law. The current regulation of Information Sharing Platform Services is mainly used to regulate other media types. For example, owners of social media pages, channels or other public groups may qualify for online media (for more information about online media, please see our recent overview). On 06 July 2023, the first Telegram channel was registered as an online media outlet.
Although it is unclear when you read the definitions given in the Media Law, the Information Sharing Platform Service may be treated as a broader definition that, in some qualifications, may cover a platform for shared access to video. More regulated media.
What is a platform for shared access to video?
The definition of the platform for shared access to video ("Video Sharing Platform Service") is rather complex. For the service to qualify for the Video Sharing Platform Service, it should meet the following criteria:
- the principal purpose of a service or its part or an essential functionality of the service is devoted to sharing programmes and/or user videos to the general public for informing, entertaining or educating,
- the provider of the Video Sharing Platform Service does not conduct editorial control (does not bear editorial responsibility) concerning programmes and/or user videos,
- such sharing is conducted through electronic communication networks and organised by the provider of the Video Sharing Platform Service, including by automatic means or algorithms, in particular by displaying, tagging and ordering the playback sequence.
Given the regulations of the EU's Audiovisual Media Services Directive for better understanding of the above basic regulation (it was taken as a basis for the Media Law), if the provision of programmes and user-generated videos constitute an essential functionality of a platform for shared access to information (i.e., the audiovisual content is not merely ancillary to, or does not constitute a minor part of, the activities of such platform), it shall meet the definition of a Video Sharing Platform Service.
The Media Law also stipulates that the Video Sharing Platform Service may function as a website or in other forms that involve a public repository of information under the control of the provider and client's software that provides access to such a repository.
Based on the described criteria, YouTube, Vimeo, Facebook Live, and similar video-sharing services fall under the Video Sharing Platform Service definition. But the jurisdictional issue is the first to be considered by non-Ukrainian video-sharing platform services (more information is provided further).
Notably, the Video Sharing Platform Service should be distinct from audiovisual media2 and providers of audiovisual services3.
What providers of Video Sharing Platform Services are subject to mandatory registration?
Providers of the Video Sharing Platform Services are subject to mandatory registration in Ukraine (para. 1 of Article 63 of the Media Law). But do all providers, especially non-Ukrainians, should? Obviously, not. Jurisdictional issue prevails over all other considerations.
Video Sharing Platform Services registered in the European Union member states require no registration in Ukraine. The Media Law expressly excludes them from the scope of the Media Law regulation.
Conversely, registration is required for those Video Sharing Platform Services that are (i) not registered in the member states of the European Union; and (ii) meet at least one of the following characteristics:
- a parent company that exercises decisive control over such a provider is registered in Ukraine; or
- a subsidiary of the provider is registered in Ukraine, provided that such provider does not have a parent company or another subsidiary that has first started and continues its business on the territory of a member state of the European Union, or
- a legal entity is registered in Ukraine, such entity and provider are part of the same group of companies, and such entity was the first from this group to start its activity, provided that such entity continues its business in Ukraine. In contrast, the provider does not have a parent company or subsidiaries registered in the European Union member states.
Enforcement
Article 23 of the Media Law provides requirements to regulate providers of Video Sharing Platform Services concerning terms of use (terms of service) and efficient user interaction. The mechanisms for implementing the requirements established by Article 23 of the Law are yet to be determined jointly by the local regulator and the co-regulatory body.
The discussed regulation for the Platforms should not be treated as new regulation without real actors to be regulated. Although Media Law does not apply to video-sharing platforms outside Ukraine, in case of detected violations, the regulator is entitled to take measures stipulated by the European Convention on Transfrontier Television and/or other international treaties legally binding for Ukraine.
Last but not least, the local regulator is entitled to:
- sign contracts or memorandums of cooperation with foreign providers of information and video sharing platform services. Such contracts and memorandums are expected to allow the local regulator to impose an obligation on the foreign providers, e.g., to prohibit the distribution of illegal content as stipulated by Article 36 of the Media Law.
- approach foreign providers of the information sharing platforms (including foreign ones) regarding restricting the distribution on the territory of Ukraine of programs and/or user information, including user video, that violates the requirements of the Media Law.
The overview was prepared with the assistance of associate Anastasiia Finko.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
