FINAL EBU REPLY (ANSWERS IN BLUE), 23.12.

2015

Regulatory environment for platforms, online

intermediaries, data and cloud computing and
the collaborative economy (EN)
Objectives and General Information
General Information

The views expressed in this public consultation document may not be interpreted as
stating an official position of the European Commission. All definitions provided in
this document are strictly for the purposes of this public consultation and are without
prejudice to differing definitions the Commission may use under current or future EU
law, including any revision of the definitions by the Commission concerning the same
subject matters.

You are invited to read the privacy statement attached to this consultation for information on
how your personal data and contribution will be dealt with.

This public consultation will close on 30 December 2015 (12 weeks from the day when all
language versions have been made available).

The Commission invites all interested parties to express their views on the questions
targeting relations between platform providers and holders of rights in digital content
(Question starting with "[A1]"), taking account of the Commission Communication "Towards a
modern, more European copyright framework" of 9 December 2015. Technical features of
the questionnaire have been adapted accordingly.

Please complete this section of the public consultation before moving to other sections

Respondents living with disabilities can request the questionnaire in .docx format and
send their replies in email to the following address: CNECT-PLATFORMS-
CONSULTATION@ec.europa.eu.
If you are an association representing several other organisations and intend to
gather the views of your members by circulating the questionnaire to them, please
send us a request in email and we will send you the questionnaire in .docx format.
However, we ask you to introduce the aggregated answers into EU Survey. In such
cases we will not consider answers submitted in other channels than EU Survey.
If you want to submit position papers or other information in addition to the
information you share with the Commission in EU Survey, please send them to
CNECT-PLATFORMS-CONSULTATION@ec.europa.eu and make reference to the
"Case Id" displayed after you have concluded the online questionnaire. This helps
the Commission to properly identify your contribution.
Given the volume of this consultation, you may wish to download a PDF version
before responding to the survey online. The PDF version includes all possible
questions. When you fill the survey in online, you will not see all of the questions; only
those applicable to your chosen respondent category and to other choices made
when you answer previous questions.

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Please indicate your role for the purpose of this consultation
An individual citizen

An association or trade organization representing consumers

An association or trade organization representing businesses

An association or trade organization representing civil society

An online platform

A business, including suppliers using an online platform to provide services

A public authority

A research institution or Think tank

X Other

Please specify

The EBU is a Europe-wide alliance of public service media with 73 member organisations in the
European Union and beyond. The headquarters of the association are based in Geneva, Switzerland.
The EBU operates EUROVISION, which distributes and produces top-quality live news, sport,
entertainment, culture and music content, and EURORADIO, which organises music and news
exchanges.
EBU member organisations are all developing their online presence: they do not only stream linear
radio and television services online, but they also provide non-linear programme services and apps
(e.g. interactive TV, catch-up TV and video-on-demand); some organisations have also started to
provide genuine online-only content services.
In this context, public service media use, and depend on, online platforms in order to be able to reach
out to all segments of society in particular young people, to distribute their services, programmes and
apps to all audience groups and communities, to make their programmes and services visible, findable
and easily accessible for all users, and last but not least to interact with users and to collect audience
feedback on particular programmes. In the digital age it is a reality that users increasingly tend to
access audiovisual content via third-party online platforms.

Please indicate your country of residence

Austria
X Belgium

Bulgaria

Czech Republic

Croatia

Cyprus

Germany

Denmark

Estonia

Greece

2
 Spain

Finland

France

Hungary

Ireland

Italy

Lithuania

Luxembourg

Latvia

Malta

The Netherlands

Poland

Portugal

Romania

Slovakia

Slovenia

Sweden

United Kingdom

Non-EU country
Please specify the Non-EU country

Please provide your contact information (name, address and e-mail address)

Name: European Broadcasting Union (EBU) AISBL,

Ms Nicola Frank
Address: Avenue des arts, 56, 1000 Brussels
E-mail: Brussels@ebu.ch

Is your organisation registered in the Transparency Register of the European Commission

and the European Parliament?
Note: If you are not answering this questionnaire as an individual, please register in the Transparency
Register. If your organisation/institution responds without being registered, the Commission will
consider its input as that of an individual and will publish it as such.
X Yes

No

Non-applicable

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Please indicate your organisation's registration number in the Transparency Register
93288301615-56

If you are an economic operator, please enter the NACE code, which best describes the
economic activity you conduct. You can find here the NACE classification.

The Statistical classification of economic activities in the European Community, abbreviated as NACE,
is the classification of economic activities in the European Union (EU).
J60

I object the publication of my personal data

Yes
X No
Please provide a brief justification.

Online platforms
Online Platforms

SOCIAL AND ECONOMIC ROLE OF ONLINE PLATFORMS

Do you agree with the definition of "Online platform" as provided below?

"Online platform" refers to an undertaking operating in two (or multi)-sided markets, which uses the
Internet to enable interactions between two or more distinct but interdependent groups of users so as
to generate value for at least one of the groups. Certain platforms also qualify as Intermediary service
providers. Typical examples include general internet search engines (e.g. Google, Bing), specialised
search tools (e.g. Google Shopping, Kelkoo, Twenga, Google Local, TripAdvisor, Yelp,), location-
based business directories or some maps (e.g. Google or Bing Maps), news aggregators (e.g. Google
News), online market places (e.g. Amazon, eBay, Allegro, Booking.com), audio-visual and music
platforms (e.g. Deezer, Spotify, Netflix, Canal play, Apple TV), video sharing platforms (e.g. YouTube,
Dailymotion), payment systems (e.g. PayPal, Apple Pay), social networks (e.g. Facebook, Linkedin,
Twitter, Tuenti), app stores (e.g. Apple App Store, Google Play) or collaborative economy platforms
(e.g. AirBnB, Uber, Taskrabbit, Bla-bla car). Internet access providers fall outside the scope of this
definition.

Yes
X No
Please explain how you would change the definition

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We doubt whether such a broad definition is suitable for regulatory purposes. The platforms covered
by the proposed definition are rather diverse, have different characteristics and often raise different
regulatory issues. Certain online platforms are closely linked to particular economic sectors (e.g.
audiovisual, communications, transport, etc.) which have their own sectoral regulatory framework. In
such cases, it makes more sense to develop specific rules for platforms within the sectoral legal
framework to address particular concerns. This is definitely the case for audiovisual platforms, in view
of their cultural and democratic relevance (see our proposals submitted in the consultation on the
AVMS Directive). We also think that actors in a one-sided market and media service providers that
assume editorial responsibility (e.g. broadcasters on-line services) should not be considered as
online platform operators.

More detail was provided in the EBU's ANNEXE:

We understand that the purpose of the present consultation is broad, providing a better understanding
of the role of online platforms and of the related legal and regulatory issues.

The broad approach of the present consultation may also help to identify some recurrent issues which
arise with regard to the application of general competition rules, which are horizontal by nature, to
providers of online platforms.

However, we have doubts whether such a broad definition is suitable for regulatory purposes, in
particular for the adoption of ex ante rules for platforms. The online platforms covered by the proposed
definition are rather diverse, have different characteristics and often raise different regulatory issues.
At the same time, a definition focusing on the open Internet could be too narrow in the sense that in
certain cases other platforms, e.g. platforms not relying on the Internet at all, or using specialised or
managed IP services may fulfil similar functions and require a consistent regulatory approach.

Perhaps even more importantly, certain online platforms that fall under the broad definition are closely
linked to particular economic sectors (e.g. communications, audiovisual, transport, etc.) which have
their own sectoral regulatory framework. In such cases, it would make more sense to develop specific
rules for platforms within the sectoral legal framework to address particular concerns.

This is the case for audiovisual platforms, in particular as far as cultural and media policy objectives
are concerned. Accordingly, in our Reply to the Commission consultation on the AVMS Directive, we
suggested that a revised Directive should include a separate set of rules for operators managing
significant audiovisual platforms (i.e. aggregating or selecting audiovisual content or providing a user
interface), in order to sustain the current policy objectives of the Directive, in particular the protection
of minors and the fight against hate speech, and to address new issues such as the prominence of
public value content and the protection of content integrity. It should, for example, be easy to find
public value content on the preinstalled user interfaces of connected TV sets. See in particular our
answers to Questions 1.1, 2.1, 3.2 and 6.2 of the AVMSD questionnaire.

The definition of audiovisual platforms which we propose would explicitly exclude operators that have
editorial responsibility for the audiovisual content available on their platform. Such operators are
media service providers under the definition of the AVMS Directive; as such, they come under a more
stringent regulatory regime. It also excludes actors in a one-sided market. For the same reasons, we
do not support the inclusion of media service providers, e.g. broadcasters on-demand services, or
operators providing SVOD services, under the horizontal definition of online platform operators.

Sectoral platform regulation could also be envisaged with regard to electronic communications
networks and services. For example, the scope of certain ex ante rules or parts of the Telecom
Directives could be extended to managed OTT platforms which are a functional substitute to telecom
networks or services (see our Reply to the consultation on the telecom review on Questions 115 and
143).

Though we believe priority needs to be given to sectoral regulatory approaches, the broad approach
taken in the present consultation can help to inform sectoral approaches and improve consistency.

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What do you consider to be the key advantages of using online platforms?

Online platforms

X make information more accessible

X make communication and interaction easier

increase choice of products and services

create more transparent prices and the possibility to compare offers

increase trust between peers by providing trust mechanisms (i.e. ratings, reviews, etc.)

lower prices for products and services

lower the cost of reaching customers for suppliers

help with matching supply and demand

create new markets or business opportunities

help in complying with obligations in cross-border sales

help to share resources and improve resource-allocation

X others:
Please specify:
Advantages depend on fulfilment of basic conditions e.g. of openness, fairness, non-discrimination.

Have you encountered, or are you aware of problems faced by consumers or suppliers
when dealing with online platforms?
"Consumer" is any natural person using an online platform for purposes outside the person's trade,
business, craft or profession. "Supplier" is any trader or non-professional individual that uses online
platforms to provide services to third parties both under their own brand (name) and under the
platform's brand.
X Yes

No

I don't know

Please list the problems you encountered, or you are aware of, in the order of importance
and provide additional explanation where possible.
In view of the variety of platforms concerned and the speed at which markets are moving, priorities are
shifting and it is difficult to establish any meaningful ranking, but the following problems have been
experienced - and some of them are likely to aggravate over time:
Facilitation of unauthorised distribution of copyright-protected audiovisual material
Priority/visibility given to copyright-infringing content to the detriment of legal content (instead
the other way round)
Non-respect of content integrity (e.g. advertising overlays)
Platform operators favouring their own, affiliated or revenue-generating services
Lack of findability of public value content
Lack of findability of European content
Availability of illicit content

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 Lack of transparency
Lack of access to usage data and other data
Unbalanced contractual terms
There is also the more general problem that online platforms are generally unregulated but often in
competition with services (e.g. audiovisual, electronic communications, transport) which are highly
regulated. This regulatory asymmetry has created an unlevel playing field, with an unbalanced
distribution of regulatory burdens leading to a distortion of competition.
One example is YouTube, which started as a video-sharing website for user-generated content but
which nowadays increasingly includes semi-professional and professional audiovisual content and
clearly competes with audiovisual media service providers in an increasing number of genres.

How could these problems be best addressed?

market dynamics

regulatory measures

self-regulatory measures

X a combination of the above

TRANSPARENCY OF ONLINE PLATFORMS

Do you think that online platforms should ensure, as regards their own activities and those of
the traders that use them, more transparency in relation to:

a) information required by consumer law (e.g. the contact details of the supplier, the main
characteristics of products, the total price including delivery charges, and consumers' rights,
such as the right of withdrawal)?
"Trader" is any natural or legal person using an online platform for business or professional purposes.
Traders are in particular subject to EU consumer law in their relations with consumers.
X Yes

No

I don't know

b) information in response to a search query by the user, in particular if the displayed results
are sponsored or not?
X Yes

No

I don't know

c) information on who the actual supplier is, offering products or services on the platform

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X Yes

No

I don't know

d) information to discourage misleading marketing by professional suppliers (traders),

including fake reviews?
X Yes

No

I don't know

e) is there any additional information that, in your opinion, online platforms should be obliged
to display?
Online platform operators should be required to provide the same information as required from
providers of information society services under Art. 5 E-commerce Directive (including, for example,
the place of establishment).
Moreover, platform operators should disclose all commercial links that could have an impact on the
neutrality of the platform.

Have you experienced that information displayed by the platform (e.g. advertising) has been
adapted to the interest or recognisable characteristics of the user?
X Yes

No

I don't know

Do you find the information provided by online platforms on their terms of use sufficient and
easy-to-understand?
Yes
X No

What type of additional information and in what format would you find useful? Please briefly
explain your response and share any best practice you are aware of.
Information, in particular on terms of use, should be provided in a format that is concise and easy to
access and in a language that is easy to understand for consumers, and wherever possible in an
attractive way so as to motivate consumers to read the information. However, transparency of online
platforms is not only necessary vis--vis consumers but also vis--vis suppliers, i.e. other businesses;
regarding the latter, the information provided would normally need to include more technical details.

Do you find reputation systems (e.g. ratings, reviews, certifications, trustmarks) and other
trust mechanisms operated by online platforms are generally reliable?
Yes
X No

I don't know

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Please explain how the transparency of reputation systems and other trust mechanisms
could be improved?
Reputation systems and how they work should be clearly explained. However to build trust,
certification by an independent third party, on the basis of clear and transparent criteria, and regular
monitoring would be useful.

What are the main benefits and drawbacks of reputation systems and other trust
mechanisms operated by online platforms? Please describe their main benefits and
drawbacks.

USE OF INFORMATION BY ONLINE PLATFORMS

In your view, do online platforms provide sufficient and accessible information with regard to:

a) the personal and non-personal data they collect?

Yes
X No

I don't know

b) what use is made of the personal and non-personal data collected, including trading of the
data to other platforms and actors in the Internet economy?
Yes
X No

I don't know

c) adapting prices, for instance dynamic pricing and conditions in function of data gathered
on the buyer (both consumer and trader)?
Yes
X No

I don't know

Please explain your choice and share any best practices that you are aware of.

Please share your general comments or ideas regarding the use of information by online
platforms
Online platforms should be more transparent regarding the kind of data they collect, the use they
make of the data, whether they share or sell data to third parties and which ones, but also regarding
pricing and related conditions.

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This is even more important in a fast changing technological environment.
The Internet of Things (including e.g. the connected home and wearables) will greatly expand the type
and scale of data which platform operators may be able to collect, use and trade.
The informed consent of users will be crucial for a wide range of new applications and services.
However, it is important that such data not be reserved for the exclusive use of the platform operator
and its affiliated companies. Access to such information is crucial for media service providers, who use
online platforms, in order to improve and personalise their offers and to develop new services.
Media service providers, in particular PSM, should have access and be able to exploit the data
collected by online platforms in connection with their services. Access to their viewers data should be
guaranteed by regulation. This would help promote EUs aim of creating a data driven digital economy.
This is needed as currently some platform operators make it difficult for the media or third party
providers to access data regarding the use of their services (e.g. not suitable/usable format or only
accessible at excessive costs). This slows down innovation by third parties leading ultimately to
consumer harm.
In addition, users must be able to opt to share data with a trusted media provider of their choice about
their use of other services on the same online platform (e.g. other media services or broader
connected services in the Internet of Things). Otherwise, there is an information asymmetry between
the online platform on the one hand, and users and content/service providers on the other hand.

RELATIONS BETWEEN PLATFORMS AND SUPPLIERS/TRADERS/APPLICATION

DEVELOPERS OR HOLDERS OF RIGHTS IN DIGITAL CONTENT

Please provide the list of online platforms with which you are in regular business relations
and indicate to what extent your business depends on them (on a scale of 0 to 3). Please
describe the position of your business or the business you represent and provide recent
examples from your business experience.

Name of online platform
Dependency
Examples from your
(0: not dependent, 1: dependent,
business experience
2: highly dependent)

1 YouTube 1

2 Facebook 1

3 Twitter 1

4 Google 1

App stores (Apple, GooglePlay,

5 1
Windows, Samsung)

How often do you experience the following business practices in your business relations with
platforms?

The online platform

* A parity clause is a provision in the terms of use of an online platform or in an individual contract
between the online platform and a supplier under which the price, availability and other conditions of a
product or service offered by the supplier on the online platform have to maintain parity with the best
offer of the supplier on other sales channels.

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 Never Sometimes Often Always

requests me to use exclusively its services X

applies parity clauses" * X

applies non-transparent fees X

applies fees without corresponding counter-performance X

applies terms and conditions, which I find unbalanced and do

X
not have the possibility to negotiate

unilaterally modifies the contractual terms without giving you

X
proper notification or allowing you to terminate the contract

limits access to data or provides it in a non-usable format X

puts significant constraints to presenting your offer X

presents suppliers/services in a biased way X

refuses access to its services unless specific restrictions are

X
accepted

promotes its own services to the disadvantage of services

X
provided by suppliers

If you do experience them, what is their impact on your business activity (on a scale from 0 to 3).

Impact on my business:

The online platform

* A parity clause is a provision in the terms of use of an online platform or in an individual contract
between the online platform and a supplier under which the price, availability and other conditions of a
product or service offered by the supplier on the online platform have to maintain parity with the best
offer of the supplier on other sales channels.

2
0 no 1 minor 3 heavy
considerable
impact impact impact
impact

requests me to use exclusively its services X

applies parity clauses" *

applies non-transparent fees X

applies fees without corresponding counter-

X
performance

applies terms and conditions, which I find

unbalanced and do not have the possibility to X
negotiate

unilaterally modifies the contractual terms

without giving you proper notification or X
allowing you to terminate the contract

limits access to data or provides it in a non-

X
usable format

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puts significant constraints to presenting your
X
offer

presents suppliers/services in a biased way X

refuses access to its services unless specific

X
restrictions are accepted

promotes its own services to the disadvantage

X
of services provided by suppliers

If you are aware of other contractual clauses or experience other potentially problematic
practices, please mention them here
With regard to the commercial practices and terms of trade of online platforms it is difficult to provide
specific examples, since platform operators regularly require contractual partners to sign non-
disclosure agreements.

Please briefly describe the situation

The most relevant online platforms on which audiovisual media service providers depend as means to
reach the public are: video platforms, app stores, search and recommendation engines, and social
media. These platforms play an increasingly important role in making audiovisual content visible and
accessible to users.

A first series of problems arise from the huge concentration in the platform market, combined with
network effects and an overall tendency for winner takes all. This has led to oligopolistic or even near
monopolistic market structures for certain types of online platforms (e.g. Internet search, social media).
With such platform operators it is practically impossible for suppliers and other market participants to
negotiate terms and conditions, and certainly not on an equal footing.
A second series of problems arise from vertical integration and commercial deals between platforms
and other stages of the value chain, for example between online platform operators and device
manufacturers. These have led to problematic practices such as certain apps being preloaded to
connected devices, and which sometimes cannot even be removed by experienced users. (e.g. iTunes
on Apple devices).
A third series of problems arise where platform operators interfere with the business model of
suppliers, e.g. by undermining their revenue streams. This can happen for example where platform
operators interfere, or allow others to interfere, with the integrity of the content or signal provided by
the supplier/media service provider. This can take the form of ad-blocking or, even worse, the
unauthorised overlay of commercial communications on the programme or service.
To protect the audiovisual value chain and the integrity of audiovisual content across platforms, the
EBU has proposed to include in the AVMS Directive an obligation for audiovisual platform operators to
respect the signal and content integrity of audiovisual media services. See our answers to Q. 1.1 and
2.1 on the AVMSD consultation, see ANNEXE. This is necessary to protect audiovisual media
services against commercial overlays and other parasitic business practices at platform level. Such
protection is also necessary to guarantee the editorial control and responsibility of media service
providers, a principle on which all media regulation in Europe and in particular the AVMS Directive is
built.
A fourth series of problems arise when major online platforms collect masses of data from users but
exercise their gatekeeping power to unduly restrict suppliers from accessing end-user data. As media
service providers become increasingly dependent on online platform operators, which manage to
impose themselves between the media service provider and the viewer/user, it is important that they
are granted full access to the platforms end-user data (on fair and reasonable terms) when these
stem from an interaction with the media service providers content or service. (See answer under
access to data).

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Are you a holder of rights in digital content protected by copyright, which is used on an online
platform?
X Yes

No

As a holder of rights in digital content protected by copyright have you faced any of the
following circumstances:

An online platform such as a video sharing website or an online content aggregator uses my
protected works online without having asked for my authorisation.
X Yes

No
An online platform such as a video sharing website or a content aggregator refuses to enter
into or negotiate licensing agreements with me.
X Yes

No
An online platform such as a video sharing website or a content aggregator is willing to enter
into a licensing agreement on terms that I consider unfair.
X Yes

No
An online platform uses my protected works but claims it is a hosting provider under Article
14 of the E-Commerce Directive in order to refuse to negotiate a licence or to do so under
their own terms.
X Yes

No

As you answered YES to some of the above questions, please explain your situation in more
detail.
In certain cases EBU Members have been confronted with situations where platform operators have
unilaterally determined the contract terms and payment conditions, including a certain transfer of
rights, without a meaningful possibility for negotiation. This can go as far as platforms requiring from
content providers to make their content also available for the platforms subscription services, as
otherwise the platform would limit the publics access to such content on the free (but advertising-led)
section of the platform. Such coercion practices must be prohibited.

Constraints that negatively affect the development of European online platforms

If you own/develop an online platform, what are the main constraints that negatively affect
the development of your online platform and prevent you from extending your activities to
new markets in the EU?

There are a number of cases where national competition or media authorities have prevented media
service providers (both public service and commercial) from cooperating and establishing joint online
platforms (for example for catch-up TV or VOD) which would have enabled them to offer a broader
choice of content to consumers and to better compete with global platforms. Restrictive interpretations
of competition law, often based on the assumption that media markets are still national, have

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underestimated global market dynamics in online distribution, and have negatively affected the
development of European audiovisual platforms.

The result has been that viewers are deprived of better and easier access to domestic and European
audiovisual content online, and that the competitiveness and viability of the European audiovisual
industry has suffered, as it is becoming increasingly dependent on global Internet platforms. Where
there are no strong national online platforms, cross-border activities are less likely, and the internal
market risks to serve mainly global competitors.

It is important that national competition authorities properly consider the global competitive landscape
when assessing collaboration and joint ventures between national market players. The impact
cooperation may have on competition at the national level could prove to be insignificant when
assessed in the truly global context.

Is there a room for improvement in the relation between platforms and suppliers using the
services of platforms?

No, the present situation is satisfactory.

Yes, through market dynamics.

Yes, through self-regulatory measures (codes of conducts / promotion of best practices).

Yes, through regulatory measures.

Yes, through the combination of the above.

Are you aware of any dispute resolution mechanisms operated by online platforms, or
independent third parties on the business-to-business level mediating between platforms and
their suppliers?

Yes

No

CONSTRAINTS ON THE ABILITY OF CONSUMERS AND TRADERS TO MOVE FROM

ONE PLATFORM TO ANOTHER

Do you see a need to strengthen the technical capacity of online platforms and address
possible other constraints on switching freely and easily from one platform to another and
move user data (e.g. emails, messages, search and order history, or customer reviews)?
Yes

No
If you can, please provide the description of some best practices (max. 5)
Name of the online platform Description of the best practice (max. 1500 characters)

1.

2.

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3.

4.

5.

Should there be a mandatory requirement allowing non-personal data to be easily extracted

and moved between comparable online services?
Yes

No

Please explain your choice and share any best practices that you are aware of.

Please share your general comments or ideas regarding the ability of consumers and traders
to move from one platform to another
If consumers agree to the portability of their personal data, this could encourage a more dynamic and
competitive market, provided that the right to erase personal data is ensured and that prior consent is
required before any commercial use of personal data.

ACCESS TO DATA

As a trader or a consumer using the services of online platforms did you experience any of
the following problems related to the access of data?

a) unexpectedly changing conditions of accessing the services of the platforms

X Yes

No
b) unexpectedly changing conditions of accessing the Application Programming Interface of
the platform
X Yes

No
c) unexpectedly changing conditions of accessing the data you shared with or stored on the
platform

X Yes

No
d) discriminatory treatment in accessing data on the platform
X Yes

No

Would a rating scheme, issued by an independent agency on certain aspects of the

platforms' activities, improve the situation?

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X Yes

No
Please explain your answer
On the same line as our answer regarding reputation systems in the chapter on transparency of online
platforms, such a rating scheme by an independent agency would certainly help to improve
transparency and trust regarding online platforms activities.

Please share your general comments or ideas regarding access to data on online platforms
It goes without saying that (big) data has become a key asset in the digital economy and raises
important challenges for audiovisual media service providers in particular in terms of access and use
of data.

With digital media convergence, audiovisual content (including catch-up TV) is increasingly accessed
and consumed via online platforms which are controlled by gate-keepers. For example, when the BBC
iPlayer was officially launched in 2007, the service was accessed entirely over the open Internet. In
May 2015, however, 63% of iPlayer usage was gate-kept, i.e. the service was not accessed directly
via a web browser, but through a third-party platform. Thus, the online platform acts as an intermediary
between the audiovisual media service provider and its audience. At the same time video platforms,
search and recommendation engines, and social media, are essential means used by the public to find
audiovisual content.

Obviously, audiovisual media service providers are concerned about their access to such intermediary
platforms. There is however another risk specifically linked to data. By the nature of their activities,
such platforms are able to unduly restrict audiovisual media service providers access to their viewers
data or they may make the viewers data difficult to access (e.g. not suitable/usable format with no
possibility to use the data) or only accessible at excessive costs. But audiovisual media service
providers and in particular PSM that must be able to fulfil their public service remit in the digital
environment, should be informed about and, upon request, given access to, any and all data collected
by online platforms relating to the use of their programmes and services; they should be able to exploit
the data in connection with their services.

In addition, users must be able to opt to share data with a trusted media provider of their choice about
their use of other services on the same online platform (e.g. other media services or broader
connected services in the Internet of Things). Otherwise, there is an information asymmetry between
the online platform on the one hand, and users and content/service providers on the other hand.

Another aspect close to the access issue is the use of data stemmed from audiovisual media service
providers content and services by vertically-integrated online platforms that also offer content to
viewers, i.e. platforms competing directly in the broadcasters markets. The issue at stake here is that
such platforms could potentially leverage their power in the platform services and data collection
market into the audiovisual content/broadcasting market. They could use the information collected
from third parties content to their own advantage, e.g. in the development of new services and content
and the targeting of advertising. In both cases, there should be greater transparency regarding online
platforms' practices concerning the collection, use and sharing of data with other platforms and actors
such as advertising networks.

Tackling illegal content online and the liability of online

intermediaries
Tackling illegal content online and the liability of online intermediaries

16
Please indicate your role in the context of this set of questions

Terms used for the purposes of this consultation: "Illegal content" Corresponds to the term "illegal
activity or information" used in Article 14 of the E-commerce Directive. The directive does not further
specify this term. It may be understood in a wide sense so as to include any infringement of applicable
EU or national laws and regulations. This could for instance include defamation, terrorism related
content, IPR infringements, child abuse content, consumer rights infringements, or incitement to
hatred or violence on the basis of race, origin, religion, gender, sexual orientation, malware, illegal
online gambling, selling illegal medicines, selling unsafe products. "Hosting" According to Article 14
of the E-commerce Directive, hosting is the storage of (content) that has been provided by the user of
an online service. It may for instance be storage of websites on servers. It may also include the
services offered by online market places, referencing services and social networks. "Notice" Any
communication to a hosting service provider that gives the latter knowledge of a particular item of
illegal content that it transmits or stores and therefore creates an obligation for it to act expeditiously
by removing the illegal content or disabling/blocking access to it.. Such an obligation only arises if the
notice provides the internet hosting service provider with actual awareness or knowledge of illegal
content. "Notice provider" Anyone (a natural or legal person) that informs a hosting service provider
about illegal content on the internet. It may for instance be an individual citizen, a hotline or a holder of
intellectual property rights. In certain cases it may also include public authorities. "Provider of
content" In the context of a hosting service the content is initially provided by the user of that service.
A provider of content is for instance someone who posts a comment on a social network site or
uploads a video on a video sharing site.

individual user
X content provider
X notice provider

intermediary

none of the above

Please explain
Broadcasters can be both content providers in the sense of uploading their own material to the
platform (sometimes called channel) and holders of rights with respect to material uploaded (without
authorization) by third parties.

Have you encountered situations suggesting that the liability regime introduced in Section IV
of the E-commerce Directive (art. 12-15) has proven not fit for purpose or has negatively
affected market level playing field?
X Yes
No
Please describe the situation.
Video platforms, social media and search engines do not really fit into any of the traditional categories
of mere conduit, caching or hosting as they are never entirely passive with regard to the content
made available. In particular video platforms and social media are increasingly taking an active role in
structuring and monetising content offers, often actively influencing users' choice, the type and extent
of content offerings and promoting particular content. The existing liability exemptions in Art. 12-15 E-
commerce Directive are not adequate for these kinds of platforms and should be interpreted narrowly.
One would expect operators of such platforms to carry a reasonable degree of responsibility and
liability.
With regard to operators of significant audiovisual platforms, the EBU has made proposals for a set of
basic rules and obligations to be included in a revised AVMS Directive. See in particular our answers
to Questions 1.1, 2.1, 3.2 and 6.2 of the AVMSD questionnaire. However, these proposals would only

17
cover specific audiovisual platforms and not for example horizontal platforms such as general Internet
search engines.

Do you think that the concept of a "mere technical, automatic and passive nature" of
information transmission by information society service providers provided under recital 42 of
the ECD is sufficiently clear to be interpreted and applied in a homogeneous way, having in
mind the growing involvement in content distribution by some online intermediaries, e.g.:
video sharing websites?
Yes
X No
I don't know
Please explain your answer.
The exact scope of hosting is not sufficiently clear. While there may be good arguments in favour of
considering purely passive activities as hosting (and allowing such service providers to benefit from
the limitation of liability), a final assessment on a case-by-case basis will still be needed. For example,
the EBU would consider most video(clip)-sharing platforms as falling within the category where
passive is no longer in line with reality. What is required is a technologically-neutral and future-proof
definition of "hosting" with clear criteria which make it possible to identify such a provider, as new
activities and services continue to develop.

Some broadcasters suffer from unauthorised use of their VOD content by online platforms. Another
relevant issue is that search engines help illegal content to be found more easily than the lawful
content. The (non-)liability regime should be modified, especially in cases of conflict of interest for
intermediaries which are both passive (possibly even outside the scope of the non-liability scheme) as
well as active, as service providers.

Mere conduit/caching/hosting describe the activities that are undertaken by a service

provider. However, new business models and services have appeared since the adopting of
the E-commerce Directive. For instance, some cloud service providers might also be covered
under hosting services e.g. pure data storage. Other cloud-based services, as processing,
might fall under a different category or not fit correctly into any of the existing ones. The
same can apply to linking services and search engines, where there has been some
diverging case-law at national level. Do you think that further categories of intermediary
services should be established, besides mere conduit/caching/hosting and/or should the
existing categories be clarified?
X Yes
No
Please provide examples
In addition to the need to clarify the conduit/caching/hosting categories to ensure that only truly
passive operators can benefit from the e-Commerce Directive regimes, another clarification is
required, notably the issue of online embedding and/or framing of anothers online available (audio or
audiovisual) content. If the framing/embedding operator provides such a service (possibly via an app
against payment) that does not meet the usual requirements of a lawful quotation (or other exception),
it should not be entitled to argue that it is merely engaged in the provision of physical facilities for
enabling or making a communication. This needs to be addressed in the ongoing EU copyright reform.

18
On the "notice"

Do you consider that different categories of illegal content require different policy approaches
as regards notice-and-action procedures, and in particular different requirements as regards
the content of the notice?
X Yes
No

Do you think that any of the following categories of illegal content requires a specific
approach:

Illegal offer of goods and services (e.g. illegal arms, fake medicines, dangerous products
unauthorised gambling services etc.)

Illegal promotion of goods and services

Content facilitating phishing, pharming or hacking

X Infringements of intellectual property rights (e.g. copyright and related rights, trademarks)

Infringement of consumer protection rules, such as fraudulent or misleading offers

Infringement of safety and security requirements

Racist and xenophobic speech

Homophobic and other kinds of hate speech

Child abuse content

Terrorism-related content (e.g. content inciting the commitment of terrorist offences and training
material)

Defamation

Other:
Please specify.

Please explain what approach you would see fit for the relevant category.
Online platforms may be hosting content that has been uploaded to the platform without the necessary
authorisation from the right holders for the content concerned, and the right holders therefore bear the
burden of monitoring those platforms with the aim of enforcing their rights against the unlawful use of
their material. Such monitoring as well as the initiation of a notice and take-down process requires
important financial and administrative efforts from the right holders, while the platform operator profits
from such unlawful content as long as it remains accessible on the platform. This provides a clear
rationale for improving the efficiency of IPR enforcement on such platforms and may have further
consequences on the conditions for the non-monitoring principle under the E-Commerce Directive.

There may well be other categories of illegal content requiring a specific approach and the EBU would
not object in principle to the development of any such approaches. See also the questions below.

On the "action"

19
Should the content providers be given the opportunity to give their views to the hosting
service provider on the alleged illegality of the content?
X Yes
No
Please explain your answer
The intermediary as a hosting provider should always take down promptly the content that is allegedly
infringing IP rights while at the same time notifying the uploader thereof and allowing the uploader to
give his/her view, to be submitted to the claiming right-holder in order to allow the parties concerned to
settle the case, including the question whether the content can be put back on the platform. However,
an appropriate solution must also be found for cases where the infringement claim is incorrect.

If you consider that this should only apply for some kinds of illegal content, please indicate
which one(s)
There would be no reason to exclude any specific kind of uploaded content from being flagged by a
relevant right-holder as being illegal.

Should action taken by hosting service providers remain effective over time ("take down and
stay down" principle)?
X Yes
No
Please explain
If the requirement of actual knowledge is maintained, then the hosting provider should have a system
in place to ensure that illegal content already taken down (and which action was not disputed) is not
uploaded again, unless the new upload is clearly done for a different purpose. However, this obligation
would seem to require a limitation of the no monitoring principle.

On duties of care for online intermediaries:

Recital 48 of the Ecommerce Directive establishes that "[t]his Directive does not affect the
possibility for Member States of requiring service providers, who host information provided by
recipients of their service, to apply duties of care, which can reasonably be expected from
them and which are specified by national law, in order to detect and prevent certain types of
illegal activities". Moreover, Article 16 of the same Directive calls on Member States and the
Commission to encourage the "drawing up of codes of conduct at Community level by trade,
professional and consumer associations or organisations designed to contribute to the
proper implementation of Articles 5 to 15". At the same time, however, Article 15 sets out a
prohibition to impose "a general obligation to monitor".

(For online intermediaries): Have you put in place voluntary or proactive measures to remove
certain categories of illegal content from your system?
Yes

No
Please describe them.

20
Could you estimate the financial costs to your undertaking of putting in place and running this
system?

Could you outline the considerations that have prevented you from putting in place voluntary
measures?

Do you see a need to impose specific duties of care for certain categories of illegal content?
X Yes
No

I don't know

Please specify for which categories of content you would establish such an obligation.
As explained above, it is possible that for certain, especially sensitive, categories of illegal content,
Member States should have the possibility of imposing a more rigorous (i.e. beyond the normal) due
diligence duty of care.

Please specify for which categories of intermediary you would establish such an obligation

Please specify what types of actions could be covered by such an obligation

Do you see a need for more transparency on the intermediaries' content restriction policies
and practices (including the number of notices received as well as their main content and the
results of the actions taken following the notices)?
X Yes
No

Should this obligation be limited to those hosting service providers, which receive a sizeable
amount of notices per year (e.g. more than 1000)?
Yes

No

21
Do you think that online intermediaries should have a specific service to facilitate contact with
national authorities for the fastest possible notice and removal of illegal contents that
constitute a threat for e.g. public security or fight against terrorism?
X Yes
No

Do you think a minimum size threshold would be appropriate if there was such an obligation?
Yes

No

Please share your general comments or ideas regarding the liability of online intermediaries
and the topics addressed in this section of the questionnaire.

The availability of effective notice and take-down mechanisms is of crucial importance for public
service broadcasters. The EBU finds that notice and action procedures currently lack the necessary
level of effectiveness. Different hosting service providers use different systems of notification of illegal
content. This creates a variety of procedures to be fulfilled to protect content on these services.

On the issues regarding notice and action, the EBU also refers to its submission to the public
consultation on procedures for notifying and acting on illegal content hosted by online intermediaries
(4 September 2012), attached as ANNEXE hereto.

Terms like illegal content or illegal service stand for a great variety of legal infringements, with very
different degrees of harm or threat to private or public objects of legal protection. It may range from the
protection of right holders to the protection of peace and security, in the case of incitement to hatred or
propaganda for terrorism. Accordingly, there may be justification for a differentiated approach, in line
with the principle of proportionality.

Also, intermediaries should provide qualified persons/entities with the possibility of a fast-track
treatment and in any case should be obliged to respond to take-down notices within a defined time.
For example, intensive content producers like broadcasters which are confronted regularly with the
need to require infringing content to be taken down should be able to register with the intermediary
(as already in place for some), so that if its content is uploaded, it can be taken down immediately
without the intermediary investigating the claim of infringement. This is particularly relevant where
time-efficiency of the take down process is crucial (e.g. auction sites and sites hosting infringing
streams of television series and films).

In general, it does not seem justified to allow online intermediaries to hide behind the safe harbour of
the E-commerce Directive and/or behind the legal responsibility of uploaders of user-generated
content in cases where their online platform is intended to communicate its content to the public for
their own, clearly economic, purposes, and even when no separate payment is charged from
consumers for obtaining access. In such cases, the online intermediary should not be exempt from
liability simply because the service is not provided to end-users for remuneration, and especially if the
intermediary provides both a free (but with advertising) as well as a paid-for (but without
advertising) version. However, the EBU does not consider the introduction of a new, all-encompassing
remuneration right covering any type of content on such platforms a feasible option.

Data and cloud in digital ecosystems

Data and cloud in digital ecosystems

22
FREE FLOW OF DATA

ON DATA LOCATION RESTRICTIONS

In the context of the free flow of data in the Union, do you in practice take measures to make
a clear distinction between personal and non-personal data?
Yes

No

Not applicable

Please explain why not

Have restrictions on the location of data affected your strategy in doing business (e.g. limiting
your choice regarding the use of certain digital technologies and services?)
Yes

No

Do you think that there are particular reasons in relation to which data location restrictions
are or should be justifiable?
Yes

No

What kind(s) of ground(s) do you think are justifiable?

National security

Public security

Other reasons:
Please explain

ON DATA ACCESS AND TRANSFER

Do you think that the existing contract law framework and current contractual practices are fit
for purpose to facilitate a free flow of data including sufficient and fair access to and use of
data in the EU, while safeguarding fundamental interests of parties involved?
Yes

No

23
Please explain your position

In order to ensure the free flow of data within the European Union, in your opinion, regulating
access to, transfer and the use of non-personal data at European level is:
Necessary

Not necessary

When non-personal data is generated by a device in an automated manner, do you think that
it should be subject to specific measures (binding or non-binding) at EU level?
Yes

No

Which of the following aspects would merit measures?

Obligation to inform the user or operator of the device that generates the data

Attribution of the exploitation rights of the generated data to an entity (for example the person /
organisation that is owner of that device)

In case the device is embedded in a larger system or product, the obligation to share the
generated data with providers of other parts of that system or with the owner / user / holder of the
entire system

Other aspects:
Please specify

Please share your general comments or ideas regarding data access, ownership and use
See Answer under Access to Data

ON DATA MARKETS

What regulatory constraints hold back the development of data markets in Europe and how
could the EU encourage the development of such markets?

ON ACCESS TO OPEN DATA

24
Do you think more could be done to open up public sector data for re-use in addition to the
recently revised EU legislation (Directive 2013/37/EU)?
Open by default means: Establish an expectation that all government data be published and made
openly re-usable by default, while recognising that there are legitimate reasons why some data cannot
be released.

Introducing the principle of 'open by default'[1]

Licensing of 'Open Data': help persons/ organisations wishing to re-use public sector information
(e.g., Standard European License)

Further expanding the scope of the Directive (e.g. to include public service broadcasters, public
undertakings);

Improving interoperability (e.g., common data formats);

Further limiting the possibility to charge for re-use of public sector information

Remedies available to potential re-users against unfavourable decisions

X Other aspects?
Please specify
As already explained in replies to other European Commission public consultations on the public
sector information Directive, expanding the scope of Directive 2013/37/EU to public service media
would not be appropriate for several reasons.

First, the Directive must not interfere or overlap with Member States' definitions of their PSMs remit as
determined exclusively by them (see the Amsterdam Protocol on the system of public service
broadcasting); nor should it ignore the fact that PSM are market players and therefore need to be able
to function in a competitive market.

PSM already have, as part of their public service remit, the task of ensuring that citizens have the
widest possible access to a broad range of content. Dissemination of public service content to the
public has benefited from technological progress and is no longer limited to (traditional) linear radio
and television services but also includes non-linear audiovisual media services and online services.

Second, copyright law must be respected and there must be no interference with the day-to-day
exploitation of intellectual property rights held by PSM, in particular the exclusive rights held by
broadcasters as producers of audio or audiovisual programmes. Any interference with the exercise of
such exclusive rights would be possible only if, and to the extent that, it was compatible with the
international treaties and European law on copyright. In this context, no distinction can be made
between material produced by commercial entities and that of public service media.

In addition, because third-party rights (e.g. music rights) are an integral part of virtually all broadcast
material, and not only of acquired or commissioned productions but also of programme material
produced entirely by the public service media itself, would effectively exclude nearly all potentially
suitable PSM broadcast material from the re-use intended by the Directive. In any event, requiring
PSM to make available their material for which third parties hold rights would cause serious difficulties
in view of the complexity of copyright clearance for such re-use.

Third, in order to protect editorial freedom and the confidentiality of sources, PSM must not be
obligated to provide access to unpublished journalistic material. For similar reasons, in the Data
Protection Directive 95/46/EC (as well as in the forthcoming General Data Protection Regulation) there
is an exemption for the processing of personal data carried out for journalistic purposes. PSM editorial
independence and freedom must be respected and guaranteed. It is for the PSM to decide whether or
not to make their non-broadcast or unpublished content and related material available to third parties,
in the light of various considerations and, in particular, protection and confidentiality of journalistic
sources. Otherwise, their editorial freedom and the principle of protection of sources would be
seriously jeopardised. In addition, making available unpublished material would give rise to potential
conflicts with the moral rights of the journalists involved.

25
Do you think that there is a case for the opening up of data held by private entities to
promote its re-use by public and/or private sector, while respecting the existing provisions on
data protection?
Yes

No
Under what conditions?
in case it is in the public interest

for non-commercial purposes (e.g. research)

other conditions
Please explain

ON ACCESS AND REUSE OF (NON-PERSONAL) SCIENTIFIC DATA

Do you think that data generated by research is sufficiently, findable, accessible identifiable,
and re-usable enough?
Yes

No
Why not? What do you think could be done to make data generated by research more
effectively re-usable?

Do you agree with a default policy which would make data generated by publicly funded
research available through open access?
Yes

No
Why not?

ON LIABILITY IN RELATION TO THE FREE FLOW OF DATA AND THE INTERNET OF

THINGS

26
As a provider/user of Internet of Things (IoT) and/or data driven services and connected
tangible devices, have you ever encountered or do you anticipate problems stemming from
either an unclear liability regime/non existence of a clear-cut liability regime?
The "Internet of Things" is an ecosystem of physical objects that contain embedded technology to
sense their internal statuses and communicate or interact with the external environment. Basically,
Internet of things is the rapidly growing network of everyday objectseyeglasses, cars, thermostats
made smart with sensors and internet addresses that create a network of everyday objects that
communicate with one another, with the eventual capability to take actions on behalf of users.

Yes

No

I don't know

If you did not find the legal framework satisfactory, does this affect in any way your use of
these services and tangible goods or your trust in them?
Yes

No

I don't know

Do you think that the existing legal framework (laws, or guidelines or contractual practices) is
fit for purpose in addressing liability issues of IoT or / and Data driven services and
connected tangible goods?
Yes

No

I don't know

Is the legal framework future proof? Please explain, using examples.

Please explain what, in your view, should be the liability regime for these services and
connected tangible goods to increase your trust and confidence in them?

As a user of IoT and/or data driven services and connected tangible devices, does the
present legal framework for liability of providers impact your confidence and trust in those
services and connected tangible goods?
Yes

No

I don't know

27
In order to ensure the roll-out of IoT and the free flow of data, should liability issues of these
services and connected tangible goods be addressed at EU level?
Yes

No

I don't know

ON OPEN SERVICE PLATFORMS

What are in your opinion the socio-economic and innovation advantages of open versus
closed service platforms and what regulatory or other policy initiatives do you propose to
accelerate the emergence and take-up of open service platforms?

PERSONAL DATA MANAGEMENT SYSTEMS

The following questions address the issue whether technical innovations should be promoted
and further developed in order to improve transparency and implement efficiently the
requirements for lawful processing of personal data, in compliance with the current and
future EU data protection legal framework. Such innovations can take the form of 'personal
data cloud spaces' or trusted frameworks and are often referred to as 'personal data
banks/stores/vaults'.

Do you think that technical innovations, such as personal data spaces, should be promoted
to improve transparency in compliance with the current and future EU data protection legal
framework? Such innovations can take the form of 'personal data cloud spaces' or trusted
frameworks and are often referred to as 'personal data banks/stores/vaults'?
Yes

No

I don't know

Would you be in favour of supporting an initiative considering and promoting the

development of personal data management systems at EU Level?
Yes

No

EUROPEAN CLOUD INITIATIVE

28
What are the key elements for ensuring trust in the use of cloud computing services by
European businesses and citizens
"Cloud computing" is a paradigm for enabling network access to a scalable and elastic pool of
shareable physical or virtual resources with self-service provisioning and administration on-demand.
Examples of such resources include: servers, operating systems, networks, software, applications,
and storage equipment.

Reducing regulatory differences between Member States

Standards, certification schemes, quality labels or seals

Use of the cloud by public institutions

Investment by the European private sector in secure, reliable and high-quality cloud
infrastructures

As a (potential) user of cloud computing services, do you think cloud service providers are
sufficiently transparent on the security and protection of users' data regarding the services
they provide?
Yes
X No

Not applicable

What information relevant to the security and protection of users' data do you think cloud
service providers should provide?
More transparency should be provided, in particular in terms of where the data is stored and the
security policies and tools which are used by cloud service providers

As a (potential) user of cloud computing services, do you think cloud service providers are
sufficiently transparent on the security and protection of users' data regarding the services
they provide?
Yes

No

Not applicable

As a (potential) user of cloud computing services, do you agree that existing contractual
practices ensure a fair and balanced allocation of legal and technical risks between cloud
users and cloud service providers?
Yes

No
Please explain

29
What would be the benefit of cloud computing services interacting with each other (ensuring
interoperability)
Economic benefits

Improved trust

Others:
Please specify

What would be the benefit of guaranteeing the portability of data, including at European level,
between different providers of cloud services
Economic benefits

Improved trust

Others:
Please specify

Have you encountered any of the following contractual practices in relation to cloud based
services? In your view, to what extent could those practices hamper the uptake of cloud
based services? Please explain your reasoning.

Never Why? (1500

Sometimes Often Always
(Y[es] or characters
(Y / N) (Y / N) (Y / N)
N[no]) max.)

Difficulties with negotiating contractual

terms and conditions for cloud services
stemming from uneven bargaining
power of the parties and/or undefined
standards

Limitations as regards the possibility to

switch between different cloud service
providers

Possibility for the supplier to unilaterally

modify the cloud service

Far reaching limitations of the supplier's

liability for malfunctioning cloud services
(including depriving the user of key
remedies)

Other (please explain)

What are the main benefits of a specific European Open Science Cloud which would
facilitate access and make publicly funded research data re-useable?

30
 Making Science more reliable by better quality assurance of the data

Making Science more efficient by better sharing of resources at national and international level

Making Science more efficient by leading faster to scientific discoveries and insights

Creating economic benefits through better access to data by economic operators

Making Science more responsive to quickly tackle societal challenges

Others
Please specify

Would model contracts for cloud service providers be a useful tool for building trust in cloud
services?
Yes

No

Would your answer differ for consumer and commercial (i.e. business to business) cloud
contracts?
Yes

No
What approach would you prefer?

Please share your general comments or ideas regarding data, cloud computing and the
topics addressed in this section of the questionnaire

The collaborative economy

(...)
__________________

ANNEXE

31