Identification criteria for VoD providers
The assessment of whether a given service is an on-demand audiovisual media service is made by the National Broadcasting Council on an individual, case-by-case basis.
Only those services which fulfilthe conditions enumerated in art. 4 pt. 6a of the Broadcasting Act may be considered as on-demand audiovisual media services in the meaning of the Act.
In accordance with art. 4 pt. 6a of the Act, an on-demand audiovisual media service is a media service:
- which is provided within the frame of economic activity carried out for this purpose;
- which consists of the provision of audiovisual programmes to the general public on the basis of a catalogue of programmes;
- whose catalogue is established by the service provider.
According to point 21 of the recitals to Directive 2010/13/UE, the definition of an audiovisual media service should cover only audiovisual media services, whether television broadcasting or on-demand, which are mass media, that is, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public. Its scope should be limited to services as defined by the Treaty on the Functioning of the European Union and therefore should cover any form of economic activity, including that of public service enterprises, but should not cover activities which are primarily non-economic and which are not in competition with television broadcasting, such as private websites and services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest.
When identifying on-demand audiovisual media service providers, the National Broadcasting Council (KRRiT):
1. Determines if the service is subject to the exemption specified in art. 2 para. 2 of the Broadcasting Act. That is, it determines that it is not, for example, an electronic version of a daily newspaper, a magazine or of media accessible in an information and communications technology system, or a service for games of chance and mutual bets.
2. Determines if the media service provider is established on the territory of the Republic of Poland (in accordance with art. 1a para. 1 of the Broadcasting Act).
The basic criteria for determining if the media service provider is established on the territory of the Republic of Poland (in accordance with art. 1a para. 2 pts 1 and 2 of the Act) are:
- registered office location;
- the place where editorial decisions are made;
- the location of the workforce engaged in the provision of the media service.
3. Determines if it is a media service provided within the frame of economic activity carried out for this purpose (economic activity is understood in accordance with the definition of the Act on Freedom of Economic Activity - in accordance with the position of the Supreme Court of Poland of 2 February 2009, file ref. no: V KK 330/08, “the legal definition of economic activity is located in the regulation of art. 2 of the Act on Freedom of Economic Activity”).
Non-commercial activity to be excluded:
- private internet websites;
- services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest.
4. Determines if it is activity consisting of the provision of audiovisual programmes to the general public on the basis of a programming catalogue established by the service provider.
In accordance with art. 4. pt. 8a the provision of an on-demand audiovisual media service to the general public is the provision of such a service in a manner enabling general users, at a time preferred by them and at their request, to receive a programme of their choice selected from the catalogue of programmes provided as part of such a service.
5. Determines if the party which has a direct contractual relationship with the programme viewer has at the same time influence over the establishment of the audiovisual programming catalogue, or if a third party compiles the catalogue, which is provided directly by the party having a contract with the viewer. In such a case, the party which compiles the catalogue (makes editorial decisions) will be subject to the directives of the Broadcasting Act, and not the party having a direct contractual relationship with the end viewer. In the above case it should be acknowledged that the party taking editorial responsibility for the compilation of the programming catalogue makes it publically available through entering into a specific agreement with the party which has a direct contractual relationship with viewers.
6. Determines if the service being verified is not a service providing links to servers of web hosting companies. In such a case, the Broadcasting Act does not apply, but rather art. 14 and art. 15 of the Act on the Electronic Provision of Services. Administrators of such services are not liable for data collected on their websites if they are unaware of the unlawful nature of such data or related activities, or in the event of receiving official notice or reliable information on the unlawful nature of the data or related activities they immediately prevent access to them.