On July 8th, the Spanish Congress approved a new law regulating the audiovisual industry. For the first time, these regulations will include a section on “users of special relevance in video exchange services”, what we normally know as content creators, streamers and Youtubers. How will this law affect them?
WHO IS AFFECTED?
The law establishes the obligation to sign up in a National registry to all “video interchange service providers”. But, who are these providers? The law isn’t clear. Its text does not include any criteria to separate providers from any other user, or even Youtube itself. In order to know who is considered as such, we must turn to the National Commission on Markets and Competition (NCMC), which details the seven “subjective criteria” it will use to make such considerations.
Out of these seven criteria, six cast such a wide net that it’s nearly impossible not to meet them. In fact, these two apply to any sort of digital video:
- Be audiovisual in nature
- Be provided using electronic communication networks
The next four aren’t any better. They encapsulate everything we can see on Youtube:
- Hold editorial responsibility
- Inform, entertain or educate
- Be directed to the broader public
- Has the goal to provide a programme
After all, the NMC defines that last term as “A set of moving pictures, with or without sound”. This leaves only the seventh as the only real criteria:
- The service provided involves an economic activity
The classification as “providers” will depend exclusively on whether any earnings are obtained. This includes, not only advertising income, but anything else of value, such as plane tickets or computer software. No minimum has been drawn, so having a couple subscriptions on Twitch will be enough.
The law also delineates another category called “Users of special relevance ”, of almost identical criteria to the previous one. The only difference is that now those criteria must be “significant”. What does that mean? Nobody knows yet; article 94, where that would be explained, has yet to be approved. What we do know is that this category imposes greater obligations and will apply even if the “user” is not a Spanish resident.
WHAT OBLIGATIONS WILL YOUTUBERS HAVE?
The first obligation listed in the new audiovisual law is to follow a series of ethical principles, such as the respect for human dignity, disability and the image of women. Its unfulfillment in the eyes of the NCMC will be reason enough for sanctions. With this, Spanish law goes beyond the European directive, as the original text was limited only to the promotion of terrorism, violence and hate.
The second obligation, as well as the most extensive, concerns the protection of minors. Their exposition to alcoholic beverages, food “with a high content in salt”, gambling, gratuitous violence and pornography must be put under control. This demands, for example, the use of age ratings, separating violent and pornographic content in different channels or the emission of responsibility messages while gambling.
In the same way, a ban on contents that may be harmful to safety, public health or the environment are banned. Not taking enough measures to the public, particularly minors, will result in serious fines. With this, many of the videos recommending medical treatment or promoting dangerous activities such as high-height parkour will no longer meet the requirements of the law.
The third implies the mandatory signage of advertisements, including product placement or any other kind of promotional materials. With this, Youtubers absorb the regulations that were already in use in the rest of the audiovisual industry, presenting no legal novelty. Particularly, covert advertising, very frequent in both Youtube and social media, is now persecuted by the law.
COULD IT RESULT IN CENSORSHIP?
One of the biggest worries caused by the approval of the law, particularly amongst the Youtubers themselves, is the possibility of censorship. The obligation to comply with the demands of the NCMC has given way to criticism, leading to well-known streamers, such as Vegetta, to complain that “The Spanish Government doesn’t even allow us to express ourselves freely“.
Even though the chances of censorship are small, the fear is not completely unfounded. Youtubers go from a regime of personal liberties to being considered economics agents, who must be regulated as any other industry. Notably, it is the NCMC, not a judge, who rules what kind of content contains pornography, gratuitous violence or sexist stereotypes.
And, while the NCMC is supposed to be independent, in practice, it’s not. Its members are appointed directly by the government. It is the Ministry of Economic Affairs who chooses who can lead the organization. And, hence, the criteria for sanctions, be them in the form of fines or channel closures, depends, ultimately, on Minister María Calviño or her future successors in her position.
Given this situation, Youtubers will likely opt to regulate their own content before the NCMC does. The law’s minimum fines range from 10.000 to 60.000 euros, a laughable amount for a television channel but enough to bring financial ruin to most streamers. This way, the mere risk of being fined may be enough to create a powerful chilling effect.
Still, audiovisual censorship in Spain remains minor, despite television and cinema having to comply with the same rules. The two most notable exceptions are the watershed and age ratings, neither of which will be applied to streamers. In fact, it is the violation of both measures, alongside covert advertising, that comprises the vast majority of fines imposed by the NCMC
As far as this writer has been able to know, there has never been any type of sanction for showing sexist, homophobic or otherwise discriminatory content neither in cinemas nor television. The closest example would be the classification of Saw VI as an X-rated film in the year 2009 for its high levels of violence, making it the only non-pornographic movie to receive that rating. That said, the NCMC does not have to follow the same trend with streamers as it previously did with cinema and television.
WHAT CHANGES WILL THE LAW BRING?
In practice, the law won’t bring any large changes. Its approval is less about regulating Youtubers than it is about complying with the 2018/1088 directive of the European Union. While the most controversial aspects of the law were added by the Spanish Government, the most important aspect is common to both: Youtubers are given the same role as cinema producers or television studios.
Hence, most of the regulations of the new law were already in use. Some of them were even demanded by the actual content platforms, like Twitch and Youtube. Still, Youtubers will be required to be more transparent about their advertisements and other promotional content. They’ll have to note when product placement is used, instead of attempting to hide it.
The promotion of dieting aids, cosmetics and surgery to minors will be heavily sanctioned, as it is endemic amongst beauty influencers. Many will be forced to tone down their language, particularly when it comes to the supposedly positive qualities of their products. Furthermore, it is now banned to tell minors to ask their parents, or any other person, to buy them products.
Youtubers’s relationship with alcohol may also change. The commercial promotion of beverages to minors is now banned. It also won’t be allowed to suggest that their consumption relaxes or contributes to success both socially and in-game, even in off-hand comments. Rubius’ “No to drugs, yes to alcohol“, even if ironic, may no longer be considered appropriate content for the minors that compose the vast majority of his audience.
Curiously, Youtubers covering slot machines escape unscathed from the NCMC’s control. The only legal requirement is the use of the platform’s own age controls, which are easily avoided. In the same way, the responsibility of reducing minor’s exposure to unhealthy foods falls on the Youtubers themselves. It is unlikely that creators such as Esttik, maker of videos such as “I eat all Burger King products in one go” will avoid, from now on, the type of content that made them famous.
In the end, the true impact of the law depends on the National Commission on Markets itself. Its criteria, as far as they are subjective, can be applied with different degrees of hardness. And, while its impact will be probably minor, Youtuber’s compliance with the law relies on the NCMC’s own will to force them to follow its new regulations.
