When is an audiovisual media service not an Audiovisual Media Service?

The Advocate General of the Court of Justice of the European Union (CJEU) has given his opinion in the case of New Media Online GmbH, which tests the limits of the definition of “Audiovisual Media Service” (AVMS) under the Audiovisual Media Service Directive (Directive).

A service that falls within the Directive definition is subject to regulation which, depending on the implementing national legislation, can range from reporting obligations to fee payments. The Advocate General’s opinion clarifies the criteria to be used in determining what constitutes a regulated service. In this case, the Advocate General concluded neither the website of a daily newspaper containing audiovisual material, nor the video section of that website, constitute an AVMS within the meaning of the Directive.

Background

The service in question is an online daily newspaper called Tiroler Tageszeitung Online. Like most online newspapers, the website is multimedia and has a separate section entitled “Video”, which includes a catalogue of around 300 short videos.

In October 2012, the Austrian regulatory authority found that the “Video” section on the website was an on-demand AVMS under the Austrian law which had transposed the Directive, and it was therefore subject to a reporting obligation. New Media Online GmbH, who operate the website, challenged that decision by appealing to the Austrian Courts. The Austrian Supreme Administrative Court asked the CJEU for a preliminary ruling on the interpretation of the criteria identifying an AVMS under the Directive.

Audiovisual Media Service Definition

To fall within the Directive definition the service must be “a service… which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain, or educate, to the general public… Such an AVMS is either a television broadcast… or an on-demand AVMS” (Article 1(1)(a)(i)).

“Programmes” is defined as “a set of moving images with or without sound… within a schedule or a catalogue established by a media service provider and the form and content of which are comparable to the form and content of television broadcasting” (Article 1(1)(b)).

“On-demand AVMS (i.e. a non-linear AVMS)” is defined as “an AVMS provided by a media service provider for the viewing of programmes at the moment chosen by the user” (Article 1(1)(g)).

Issues

The Austrian court asked for an interpretation of two criteria: First, when is such programming “comparable to the form and content of television broadcasting”? Second, can the “principal purpose” of the service under Article 1(1)(a)(i), in the context of online newspapers, be based on a subsection of a website that offers a collection of short videos?

Advocate General’s Opinion

The Advocate General noted that all of the criteria set out in Article 1(1)(a)(i) have to be met for an AVMS to fall under the Directive, establishing a narrow interpretation of the definition.

As for “principal purpose”, the Austrian regulatory authority had decided the catalogue of video material on the website was a separate service and the principal purpose of that service was to provide audiovisual content. In the Advocate General’s view, this meant the criterion relating to principal purpose “loses all meaning”, as it makes the scope of the Directive dependent on the architecture of a specific website at a specific time. “Principal purpose” primarily concerns the nature of the service rather than the architecture of the website.

The Advocate General noted that for the definition of “programme” the requirement is that the form and content be comparable to that of a television broadcast. This was an indication that the legislature had not intended the scope of the Directive to cover audiovisual content not normally present in a television broadcast.

As for the definition of on-demand AVMS the Advocate General noted the Austrian regulatory authority had attached too much weight to the concept of “catalogue”. Whilst there does have to be a catalogue from which a user can select an item of interest to download, the existence of such a catalogue in itself does not mean that the service in question is an AVMS.

Further indications as to the scope of the Directive are found in the recitals. According to Recital 24, a non-linear AVMS has to be “television-like”, meaning it must compete for the same audience. In other words, the Directive should only apply to online extensions of television broadcast services, not to distinctive economic activities such as online newspapers.

Recital 28 states that the scope of the Directive should not cover “electronic versions of newspapers”. In the Advocate General’s view, that phrase should be read in the light of the current state of the development of the information society. As the majority of reputable online newspapers and magazines now have audiovisual elements embedded in their written and graphic material, the exclusion should extend to video elements of online newspapers.

Conclusion

Following the Advocate General’s view, Article 1 of the Directive has to be interpreted as meaning that neither the website of a daily newspaper containing audiovisual material nor any section of that website constitutes an AVMS. The Advocate General noted that the uncertainties in interpreting legal language must be dispelled in accordance with the clear legislative purpose of the Directive, “so that it is not applied to multimedia websites” unless those websites “undoubtedly satisfy all the criteria of such a service”.

However, the Advocate General’s opinion remains just an opinion and it is yet to be seen if the CJEU will adopt the same position – the judgement is expected on 21 October 2015.

Karim Amijee, Trainee Solicitor, Michael Simkins LLP

[1] Case C-347/14 New Media Online GmbH (Opinion of Advocate General Szpunar) 1 July 2015