On 21 October 2015, the European Court of Justice (ECJ) ruled that the video section of an online newspaper could be considered an audiovisual service and therefore may be regulated by the Audiovisual Media Services Directive (the Directive).
The newspaper in question had a subdomain containing more than 300 videos, ranging from 30 seconds to several minutes long. The videos covered a wide range of content, such as local news, sports, film trailers, craft activities for children and readers' videos selected by the editors.
The Austrian Supreme Court asked the ECJ to consider whether video services such as these fell within the meaning of audiovisual services in the Directive.
Under the Directive, audiovisual media services are services under the editorial responsibility of a media service provider, the principal purpose of which is the provision of programmes in order to inform, entertain or educate the public. The Directive makes it clear that an electronic version of a newspaper is not an audiovisual service where the audiovisual elements are incidental and only serve to complement the written articles.
The ECJ held that, in order to determine the principal purpose of a service offering videos in an online newspaper, the focus must be on whether the video subdomain service had content and form independent of the journalistic activity of the newspaper, and was not merely an "indissociable complement".
While it is ultimately up to the referring court to determine whether the video subdomain service in question falls within the scope of the Directive, the ECJ made it clear that such services could be covered. Very few of the newspaper articles were linked to the video clips at issue and the majority of the videos could be accessed and watched regardless of whether the articles were read, leading the ECJ to consider that the video subdomain could be regarded as having form and content which is independent of that of the journalistic activity of the newspaper.
The ECJ's ruling departs from the Advocate General's opinion released in July this year, where he found that such services could not be covered by the Directive.
Closer to home, the ruling also appears to differ from Ofcom's previous approach. In 2011, Ofcom overturned the UK's Authority for Television on Demand (ATVOD) decision that the Sun Video section of The Sun's news website was an audiovisual media service under the Directive. Ofcom found that the service was "integral and ancillary" to the news website's wider offerings, and so therefore would not be within the Directive's scope. However, Ofcom did emphasise that it is possible for a newspaper or magazine to host content within the scope of the Directive depending on the circumstances.
Such potential differences of approach are likely to be particularly relevant as ATVOD's role as an independent co-regulator for video-on-demand services will end on 31 December, with Ofcom becoming the sole regulator of these services.
A copy of the ECJ's decision can be found here.