Amendment act

On 23 July 2021, the lower house of the Polish Parliament passed the act amending the Broadcasting Act and the Cinematography Act. The aim of the new act is to implement the Audiovisual Media Directive 2018/1808 in Poland. The act also changes the Cinematography Act by imposing new payment obligations on broadcasters with registered offices in European Union countries other than Poland. The President signed the act on 23 August 2021.

Most of the changes are in line with the Directive, however some of them reflect a stricter approach taken by the Polish legislator. While self- and co-regulatory instruments play an important role in the Directive, the act regulates obligations of media service and VSP providers by implementing binding legal provisions.

The act introduces, among others, the following changes into the Broadcasting Act:

• clarification of criteria of establishing jurisdiction for media services providers
• new rules of commercial communications and new information obligations of broadcasters
• new obligations of on-demand service providers
• regulations on video sharing platforms.

Jurisdiction criteria

The determination of jurisdiction will continue to be based on the country of origin principle and the same criteria as in the Directive will apply. There is a specification of some criteria proposed. One of the criteria of editorial decisions will be understood, following the AVMS Directive, as “decisions taken on a regular basis for the purpose of exercising editorial responsibility and linked to the day-to-day operation of the audiovisual media service”. Criteria of “a significant part of the workforce”, adequate to the Directive provisions, will refer to “staff involved in program-related services”.

Broadcasters

The act introduces more flexibility for broadcasters in terms of commercial broadcasting. There is a division between two time slots from 6 am to 6 pm (where the total time of commercials and teleshopping spots may not exceed 144 minutes) and from 6 pm to 12 am (where the total time of commercials and teleshopping spots may not exceed 72 minutes). However Polish broadcasters will still face stricter rules on commercials than the Directive provides. The Polish legislator wishes to keep unchanged the rules that films may be interrupted once for each scheduled period of at least 45 minutes and other audiovisual programs may be interrupted once for each scheduled period of at least 20 minutes. To the benefit of the broadcasters, it will be now possible to interrupt a children's program that lasts more than one hour with a commercial break.

It is worth noticing that although the Act does not completely remove restrictions regarding broadcasters’ announcements, the 2 minutes limit shall be no longer in force. Following the Directive, the broadcasters’ announcements may concern a broadcaster’s own programs and ancillary products directly derived from those programs but also programs and audiovisual media services from other entities belonging to the same broadcasting group.

The Act of 23 July 2021 also changes when recipients should be informed about the sponsorship. Previously sponsored programs or other broadcasts were to be marked by identifying the sponsor at the beginning, at the end and at the time of resuming the broadcast after an advertising or teleshopping break. After the amendment, sponsored programs shall be marked by indicating the sponsor at the beginning of the program and at the time of resumption after one of the advertising or teleshopping breaks or at the end of a sponsored program or other broadcast.

As in the Directive, product placement will now be allowed in all audiovisual media services in Poland as a rule, but subject to specific exceptions. Broadcasters can also expect other obligations, like:

• ensuring access to information on broadcasters’ ownership structures and all their services
• providing sufficient information about content that may impair minors' physical, mental or moral development by:

• a visual symbol broadcasted during the program and
• by a visual symbol displayed before the broadcasted program and at the beginning of the program; this symbol should indicate the kind of content that may impair minors’ health.

Violating the integrity of a media service

The Act of 23 July 2021 expressly provides for a ban on violating the integrity of a media service without the consent of its provider. Such a violation manifests itself, among others, in:

• changing or modifying the media service, including shortening, interrupting, removing, covering or replacing certain elements or adding them
• modifying commercial communications forming part of or disseminating it
• covering audiovisual content made available as part of the service, or
• reducing the audiovisual image of a media service in order to place a commercial or promotional notice nearby.

The consent of the media service provider to changes or modifications to the media service or other violations of its integrity shall be made clear and in a written form and be effective solely for activities specified therein.

On demand media service providers

With respect to on-demand media service providers, the act also establishes a few new obligations:

• providing information about the ownership structures and all services run by providers,
• reporting their services for listing in the register kept by the President of the National Broadcasting Council,
• marking audiovisual work by a visual symbol warning that the content may impair a minor’s physical, mental or moral development and by a visual symbol indicating the kind of content that may impair a minor’s health.

The act also extends the obligation to include European productions from 20% to at least 30 % shares in their catalogues.

While the Directive establishes the obligations of Member States to ensure that services provided by media service providers under their jurisdiction are made continuously and progressively more accessible to persons with disabilities through proportionate measures, the act, as in the case of broadcasters, establishes binding legal obligations to include at least 30% shares in their catalogues, programs with measures making them accessible to persons with disabilities.

The President of the National Broadcasting Council will now be armed with new tools against on-demand media service providers. He will be entitled to delete from the register of on-demand media service providers those who during the following 12 months, at least twice screened content that could impair a minor’s physical, mental or moral development without appropriate measures protecting minors . Interestingly, on similar grounds, the President of the National Broadcasting Council will be empowered to prohibit in Poland an on-demand audiovisual media service of a provider established in another Member State.

Video sharing platform providers

The most significant part of the act refers to video sharing platforms and, following the Directive, regulate some of their activities. VSP providers should report their services for listing in the register kept by the President of the National Broadcasting Council.

VSP providers may not allow their platforms to carry content that:

• may impair the physical, mental or moral development of minors, without appropriate technical measures or
• incites to violence or hatred against individuals or groups of persons on any grounds or
• enhances committing a terrorist offence or child pornography.

The act imposes the obligations on the video-sharing platform providers to take appropriate technical measures to protect minors from inappropriate content and to allow users to take such measures.

There are also some other audiovisual commercial communications requirements attached to VSP providers. The act sets out obligatory provisions of VSP Regulations, among others, the rules of marking audiovisual works with respect to minors’ protection or rules of commercial communications.

There is a special procedure indicated for settling disputes regarding users’ content that is in violation of legal provisions. A VSP provider is obligated to provide clear and user-friendly mechanisms for users to report that content posted on the VSP violates the prohibition set forth in the Act. A dispute over the handling of such a report may be resolved amicably through mediation.

The Act also defines the VSP's rights in the case of infringing content regarding users who provide such content, including the right to block access to the content of such users. The National Broadcasting Council should be the authority competent to handle a complaint against a decision of a VSP provider. The President of the National Broadcasting Council also has the power to impose financial fines on VSP Providers if they violate certain legal obligations.

Draft law from September 2020

It is worth noting that almost a year ago The Ministry of Culture and National Heritage published the first draft law amending the Broadcasting Act and the Cinematography Act, with the same aim of implementing Audiovisual Media Directive 2018/1808 in Poland. The Act passed on 6 August 2021 is mostly in accordance with its 2020 version, however, it bears certain differences, among others:

• a precise listing of what needs to be reported by the National Broadcasting Council to the European Commission
• the addition of provisions ensuring easier access to broadcasted information for people with disabilities
• resignation from the absolute removal of restrictions regarding broadcasters’ announcements, with only refraining form imposing on broadcasters the 2 minutes limit (now no time limit shall apply);
• resignation from introducing restrictions on sponsorship of children’s programs
• the addition of a commitment for broadcasters of television programs to ensure that information of an extraordinary nature (including public announcements and announcements in the event of a natural disaster) shall be broadcasted along with facilities for people with disabilities, unless broadcasting with such facilities was impossible
• resignation from the procedure of out-of-court settlement of consumer disputes in favor of mediation in VSP provider –user disputes
• remove the provision that a VSP provider is not responsible for the content posted by users
• the addition in the Cinematography Act of a requirement (applying to all levy payers) to submit a statement of the amount of revenue on the basis of which the amount of the levy paid to the Polish Film Institute has been determined.

Conclusions

The act regulates a lot of significant issues and in many cases imposes restrictions that may make Poland less attractive to media service providers. The amendment of the Broadcasting Act and the Cinematography Act should come into force on 1 November 2021, with the exception of certain regulations (such as those regarding changes of the airtime for European broadcasts, the obligation to promote European broadcasts, ensuring the accessibility of broadcasts for people with disabilities and obligation for VSP providers to introduce a certain percentage of broadcasts with facilities for people with disabilities in their catalogue) that shall come into force on 1 January 2022.