The Media Services Act
An on-demand audiovisual media service is defined in § 26 of the Media Services Act. To meet the definitional criteria, this service must satisfy all of the following. The service must be of an economic nature, that is, operated for the purpose of making a profit. This means that the occasional posting of videos on social media, or on YouTube, does not meet this definition, since profit is not the primary aim. Furthermore, it must be provided via a network, on the basis of a catalogue of programmes compiled by the provider of the on-demand audiovisual media service, and the purpose of the provision must be to inform, entertain, or educate the general public. The service must be provided at the individual request of the user and the basic purpose must include the possibility for the user to watch a programme at any chosen moment (as, for example, on Netflix, where films or series can essentially be watched at any time). This means that if you were to make live broadcasts that, once ended, were not accessible in an archive, you would not meet this condition and these obligations would therefore not apply to you. The negative definition of an on-demand audiovisual media service is that it does not concern the provision of sound recordings on demand (for example podcasts), since these situations are covered by the Publications Act. Given that the act in question is relatively new, situations arise in which creators of audiovisual content cannot say with certainty whether any of the obligations applies to them or not. It is precisely questions on the interpretation of these definitions that the Council for Media Services answers on its website www.rpms.sk, where it publishes its answers directly.
The obligations applying to providers of on-demand audiovisual media services are a request for authorisation, or a notification to the Council for Media Services. A provider of an on-demand audiovisual media service has the obligation to request authorisation if it is a natural or legal person and provides this service via its own platform (such as Netflix, Voyo and similar streaming services that have their own website). Such a request must be filed before the provision of the on-demand audiovisual media service begins, and the regulator will decide on the request within 90 days. The more detailed formal and substantive requirements for the request are found in § 176 of the Media Services Act.
The second obligation is the notification obligation. In terms of content it has the same elements as a request for authorisation, but it is not necessary to wait for the request to be approved and authorisation to be granted, since it is merely a notification. Such a notification applies to providers who are natural persons providing on-demand audiovisual media services via a video-sharing platform – this includes, for example, YouTube, Facebook Watch, TikTok, Instagram, Twitter, OnlyFans or Twitch. However, the channel on these platforms must be set up for the purpose of making a profit and must also meet all the other definitional criteria of an on-demand audiovisual media service. The Council for Media Services specifies that the economic nature includes not only making a profit from the channel itself, but also posting videos for the purpose of promoting one's paid activities, or placing advertising within the video. This notification obligation arises for the provider of on-demand audiovisual media services no later than the day on which their provision begins. We note, however, that the notification obligation in this case includes only natural persons, so if a legal person wished to provide on-demand audiovisual media services via a video-sharing platform, it would have to file a request for authorisation just as in the case of providing an on-demand audiovisual media service via its own platform.
The Publications Act
The second law relating to the media area is the Publications Act. Although it defines several terms, for the purposes of this article we will address exclusively electronic periodical publications. Under § 2 of the Publications Act, a publication is generally understood to be content, or a set of content, expressed in words, writing or images, publicly disseminated in the territory of the Slovak Republic or intended to be made available to the public in the territory of the Slovak Republic with the aim of informing, entertaining or educating the general public. Negatively it defines a publication such that it does not include audiovisual or sound recordings of an artistic performance or programme. In the dissemination of an electronic periodical publication it is important that an individual can access it from a place and at a time of their own choosing. The public dissemination of an electronic publication (and not only such) is deemed to occur if it is disseminated or made available to the public at least twice a year under the same title and marked with an ISSN (if one has been assigned to it). Under the above definition we also include podcasts, which the explanatory report to this act expressly states. The publishers of such podcasts therefore do not have an obligation under the Media Services Act, since these are not on-demand audiovisual media services, but under the Publications Act. An exception is formed by cases where the podcast would at the same time also be published as a video, for example on YouTube (of course provided that the definitional criteria of an on-demand audiovisual media service are met). The publisher of a periodical publication is a natural or legal person who is editorially responsible for its content. This means that this person initiates or directs the publication/making available of the periodical publication to the public and at the same time steers and secures this public dissemination, at their own expense and responsibility.
As regards the obligations of publishers of periodical publications, the law here establishes an obligation of registration in the list of periodical publications kept by the Ministry of Culture of the Slovak Republic. This list is publicly accessible on the website of the Ministry of Culture of the Slovak Republic. According to the explanatory report to the act in question, public accessibility is intended to ensure simple and direct availability of information concerning the periodical publications currently being published and the existing web portals meeting the statutory requirements. Information of this kind is to be transparent, both for the purpose of the Ministry of Culture's oversight of compliance with the law and for the public in exercising the right to comment or to make an additional notification, as well as in forming a picture of what publications are being published. The substantive and formal elements of an application to register a periodical publication in the relevant list are specified in more detail by § 3 of the Periodical Publications Act. The obligation to apply for entry in the list lies with the person publishing the periodical publication, no later than on the day the publishing or making available of the periodical publication to the public begins. In addition, publishers of electronic periodical publications likewise have the obligation to register in the Register of Public Sector Partners before the publishing or making available begins. They also have the obligation to be registered in this register throughout the publishing or making available of their periodical publication. An exception to this obligation is, however, introduced, relating to scientific periodical publications or community periodicals. A more detailed definition of community periodicals is found in § 13 of the Publications Act.
From the above there follow new obligations for the publishers of various podcasts or videos, which were needed in order to adapt to the current trends and practice in today's society. The aim of the Publications Act is to enshrine rules reflecting the new requirements in the area of disseminating information, and not only in the periodical press, but likewise in electronic periodical publications and on news web portals, which are coming increasingly to the fore. The aim of the Media Services Act originally lay above all in the need to transpose Directive (EU) 2018/1808[1] into the legal order of the Slovak Republic. The explanatory report to the Media Services Act states that, taking into account the knowledge gained from application practice, the former legal regulation of audiovisual services in the Broadcasting and Retransmission Act and the Digital Broadcasting Act was not sufficient for current conditions. The said laws therefore do not seek to restrict persons creating podcasts or audiovisual content; they merely create the necessary legal framework for their regulation, which was not sufficiently covered in the previous legislation.
[1] Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities