A promotional video is not an ‘audio-visual media service’ for the purposes of the AVMS Directive

The CJEU has ruled that a Peugeot Germany YouTube channel (to which promotional videos were uploaded) does not constitute an ‘audio-visual media service’ (AVMS) for the purposes of the AVMS Directive (2010/13/EU). As such, the channel’s promotional videos are not exempted from the provisions of the Car Labelling Directive (1999/94/EC) which require certain videos to include specific details of promoted cars.

Business impact

Content makers and providers should ensure that promotional content provides all the information required by any applicable rules (for example, car labelling regulations). If content uploaded to video sharing platforms such as YouTube is purely promotional, such content may not be treated as audio-visual media content under the AVMS Directive and may therefore fall outside of any AVMS exceptions.

Overview

In 2014, Peugeot Germany posted a 15 second video titled ‘Peugeot RCZ R Experience: Boxer’ on its YouTube channel. The video did not contain information about the car’s official fuel consumption, nor official specific CO2 emissions, both of which are required under the Car Labelling Directive.  Peugeot Germany argued that the YouTube channel fell within the definition of an ‘audio-visual media service’ and was therefore excepted from the car labelling rules.

The CJEU ruled that neither Peugeot Germany’s channel on YouTube, nor any promotional video uploaded to it, could be said to have, as its primary purpose, the provision of programmes that inform, entertain or educate the general public (as would be necessary for an AVMS).  In the CJEU’s view, to the extent that a promotional video could inform, educate or entertain viewers, it did so with the aim of promoting the good or service in question.  The CJEU said that even if a promotional video channel were to satisfy other AVMS criteria, its promotional purpose was sufficient to deem it excluded from the AMVS definition.  The court also disagreed that, because the video included promotional images at the beginning and end of the video, it could constitute a programme.

Summary

Purely promotional channels will not be regarded as audio-visual media services for the purposes of the AVMS Directive.  It is worth noting that the AVMS Directive is currently open for review and one of the major proposed changes is the introduction of a secondary regulatory regime applicable to video sharing platforms.  Under the proposals, it is possible that purely promotional content posted to video sharing platforms such as YouTube may fall within the scope of an AVMS, however time will tell as to whether such proposals will be adopted.

Case C-132/17 Peugeot Deutschland GmBH v Deutsche Umwelthilfe eV EU:C:2018:85 (21 February 2018).

 

Astrid Bulmer, Trainee Solicitor, Simkins LLP