The interaction between the Audiovisual Council, online content moderation and online gambling advertising 171t11
After the entry into force of the Digital Services Act (‘DSA‘)[1] on 17 February 2024, the provisions of the DSA started to be implemented at Member States’ level through national authorities. In close collaboration with experts at the level of the European Commission, the designated national authorities are responsible for supervising the implementation and enforcement of the DSA by the providers established in each Member State. At the level of Romania, the national authority responsible for this supervision is the National Authority for istration and Regulation in Communications (“ANCOM”). 4j571e
Catalin Veliscu, Junior Associate WH SIMION & PARTNERS
Cosmina Simion, Managing Partner WH Simion Partners
However, the implementation of the DSA can also be done sectorally, under the supervision of the designated national authority, for example, over audiovisual content in the online environment. Such a practice is currently being developed at the level of the National Audiovisual Council (“CNA“), crystallized through a so-called Practical Guide for Combating Illegal Content Online (“CNA Guide“). CNA also published a draft for a new Audiovisual Content Regulatory Code. The publication of the guide and the draft, as well as the current practice of the CNA of publishing decisions on orders to remove illegal content ed online, can only generate legal and operational questions.
- The general DSA regime and its translation into the CNA guide
As a preliminary point, the DSA provides for three types of suppliers to whom its provisions are addressed. Firstly, it refers to “mere conduit” (suppliers who ensure the simple transmission of information). Mere conduit providers do not store information, they only facilitate communication between servers (the best example being internet providers). The second category is caching service providers. They are intermediaries between the and the hosting platform who create a temporary hosting activity for the , so that the can access the hosting platform through an intermediary. The best example is VPN (Virtual Private Network) service providers.
Last but not least, the DSA regulates “hosting” platforms. Hosting platform providers are the ones who host the very information that the wants to access. The platforms are permanent in nature, and the provider has full powers over the platform, in the sense that it can regulate and moderate the content shared through its platform. As a matter of principle, they are not liable if they were not aware of the content and its illegality and if they delete the content as quickly as possible.
It is important to note that the CNA Guide targets hosting platforms, as defined in the DSA, as they are the ones with which end s interact. The CNA Guide is a proof of the CNA’s tendency in recent years to supervise the online environment regarding audiovisual content. We see how an authority that in the past only targeted content distributed through TV and radio receives new powers based on European regulation. The justification of this ability of CNA can be based on the experience that the institution already had in the audiovisual field. However, the differences from TV or radio are notable, and only the next period can show whether or not CNA is ready to deal with this type of content as well.
- Misleading advertising under the notion of illegal content and the protection of minors online
As a general rule, the DSA provides that providers are required to put in place mechanisms to show that the information is a marketing communication in a visible manner, information on the entity on whose behalf the marketing communication is submitted, the entity that paid for the communication, if different, and information on the parameters used to determine the recipient of the marketing communication and how it can be changed. Platforms must also have mechanisms in place for s to be able to declare that certain content is in fact a commercial communication.
The imposition of all these organizational measures translates into the qualification of non-compliant advertising as illegal content, consequently, content that can be removed. The CNA Guide also includes hidden or misleading advertising under the umbrella of the notion of illegal content and provides several examples of practices that can be removed from platforms: promotion of products without clear marking as sponsored advertising, advertising for prohibited products (alcohol, tobacco, gambling for minors), masked ments, electoral advertising broadcast outside the electoral campaign period or without complying with the obligation of clear marking of electoral advertising. Even if the CNA Guide does not mention it, it is quite clear that this list is purely illustrative and that other conducts can also be qualified under this notion.
online gambling advertising
It can also be seen that CNA draws a direct link between this category of illegal content and the protection of minors, which is an objective in itself of the provisions of the DSA. The regulation stipulates that platforms must implement technical and organizational measures aimed at practices such as: age verification measures, limiting access to content that is not suitable for minors, ensuring the privacy, safety and security of minors.
Taking into the attention given to the two concepts of misleading advertising and protection of minors, but also to the fact that the CNA guide offers as an example disguised advertising for gambling, an increased analysis is deserved by the possible ways in which minors could be affected in this context. For example, minors are vulnerable to such advertising communications through the influencers they follow and who do not correctly target their content to a mature audience. There is also a risk for hidden advertising when gambling is misleadingly presented as video games to attract a certain segment of the audience, which can easily include underage s. Such ments could even mask the risk of losses or promise a guaranteed gain, thus taking advantage of the vulnerabilities inherent in minors.
- Advertising for gambling with public figures
Recently, CNA published a proposal to amend Decision no. 220/2011 on the Audiovisual Content Regulatory Code. For the gambling industry, the provisions of art. 110 para. (7) introducing new restrictions on gambling advertising are highly relevant. Thus, they provide that “it is forbidden to broadcast advertising for games of chance in which personalities of public, cultural, scientific, sports or other persons are present, who, due to their notoriety in the online environment, may encourage participation in such games.”
Without claiming to exhaustively analyze the provisions of art. 110 para. (7) and its impact on several industries, not only the one it directly targets, we mention that it is a new restriction for gambling advertising, brought by an authority other than the relevant one. We therefore notice an increased interest at the level of the state authorities for the protection of players and vulnerable people. Even if the interest is salutary, we still consider that the text is deficient. Specifically, the ments themselves represent productions that involve at least the appearance of individual persons, such as actors who are part of a profession inherently related to the cultural field. Thus, does an actor automatically become a personality of cultural life? When does a public figure acquire enough notoriety to be able to fall under the provisions of this rule? Is the assessment of notoriety done at a general level or on well-defined segments of the public? The draft amending Decision no. 220/2011 can be found on CNA’s website (here), in decision-making transparency until 15.04.2025. Until then, we hope that these aspects, as well as many others, will be clarified.
WH Simion & Partners
In conclusion, achieving objectives such as the protection of minors in the context of the online space and beyond requires close cooperation at national level, but also at regional level through liaison with the European institutions. The CNA guide and the branch of misleading advertising with reference to gambling are just a few examples that illustrate the efforts to implement the DSA in Romania, and the CNA guide is a starting point for a further necessary analysis on the concrete way in which the Romanian authorities implement the provisions of the DSA for the prevention, limitation and sanctioning of illegal content on online platforms.
[1] REGULATION (EU) 2022/2065 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 19 October 2022 on a single market for digital services and amending Directive 2000/31/EC (Digital Services Regulation).
