What is nowadays to be seen as a “programme“? And, what does characterize the “principal purpose” of a video section offered in the electronic version of a newspaper? These questions have been submitted to the Court of Justice of the European Union lately. On 21 October, the judges handed down their decision thereby clarifying some core terms of the Audiovisual Media Services Directive 2010/13 (AVMD Directive). The case was referred to the CJEU by the Austrian Verwaltungsgerichtshof (Administrative Court) which had to rule on the legality of a subdomain of an Austrian online newspaper which held about 300 short videos for public access (CJEU, judgment of 21 October 2015, Case Ref.: C-347-14 – New Media Online).

The Background

The Austrian company New Media Online GmbH runs the online newspaper “Tiroler Tageszeitung online“. The respective website not only features news and articles, there is also a subsection where, at the time, roughly 300 videos were accessible. Those videos covered all kinds of topics and varied in their length from 30 seconds to several minutes. In 2012, the Austrian communication authority asked New Media Online to meet the regulatory requirements based on the AVMD Directive by implementing certain measures regarding advertising control, youth protection and notification obligations. The authority did so based on the video section being categorized as an on-demand audiovisual service within the meaning of the AVMD Directive. New Media Online refused the request and argued that an e-newspaper featuring a video subdomain was to deemed exempted from any such obligation as falling outside the scope of the directive. Particular reference was made to recital 28 of the AVMD Directive.

New Media Online first brought action before the Federal Communications Board. The case was dismissed and thus went up to Administrative Court. Here, New Media Online claimed that the video subdomain was only ancillary to the main website and that the videos at issue could not be compared to television broadcasting services due to their minor length, form and content. The court stayed the proceedings and reached out to the CJEU.

The Opinion of Advocate General

The Advocate General Maciej Szpunar, in his opinion, supported a rather narrow interpretation of the scope of the AVMD Directive. He saw the directive’s main focus as being on television broadcasting and comparable video-on-demand services. Expanding its scope of application to internet services in general without taking into account the specifications of the very internet service at issue was deemed inappropriate. Thus, the Advocate General recommended excluding subdomains of online newspapers –explicitly mentioning such subdomains with embedded YouTube videos– from the scope of application of the AVMD Directive.

The decision by the CJEU

The CJEU now states that the concept of ‘programme’, within the meaning of Article 1(1)(b) of the AVMD Directive must be interpreted as including, under the subdomain of a website of a newspaper, the provision of videos of short duration consisting of local news bulletins, sports and entertainment clips. What is decisive is that the video clips are comparable to the form and the content of TV broadcasting. To the contrary, the Court does not see the question of whether the complete compilation can be compared to a complete schedule or a catalogue established by a television broadcaster as being of relevance.

Further, the judges emphasize that the AVMD Directive does not contain any requirement regarding the length of a programme. Thus, length is no suitable criterion for differentiation. As with television broadcast programmes, the videos at issue were aimed at a mass audience. The possibility to access the videos online is seen to correspond to what is “explicitly provided for in the definition of an on-demand audiovisual media service, contained in Article 1(1)(g) of Directive 2010/13″.

The CJEU continues, stating that the main purpose of the directive is to apply the same rules in the particularly competitive media landscape for actors that are competing for the same audience. This might also be the case regarding videos in online newspapers. In this context, the principle purpose of the provided videos has to be determined by the independence of the journalistic activity. That is to say, if they are an essential complement to the newspaper´s articles, e.g. as a result of a link between a video and an article, the AVMD Directive does not apply. Thus, the ruling deems that a website in its entirety does not matter in this respect, and no circumvention by mere web design shall be possible.

Comment

The CJEU’s ruling clearly differs from the Advocate General’s opinion. The judges have a recognizably broader notion of the scope of application of the AVMD Directive. What particularly resonates is the reliance on the criterion of the independence of the journalistic activity. Exemptions may only be justified if the videos made available are an essential complement to that activity. This approach does leave room for newspapers to offer online video content outside the scope of the AVMD Directive, but it sets boundaries. If those are trespassed, the regulation of the audiovisual media services sector comes into play.

Please note that the AVMD directive is subject to and under review by the digital single market strategy as announced by the Commission. A consultation has recently been concluded at the end of September, so watch this space for updates.