The European Court of Justice (the “ECJ”) recently ruled on the interpretation of the provisions of the Audiovisual Media Service Directive[1] (the “Directive”) relating to television advertising and commercial sponsorship in the Sanoma case[2].

At stake were the broadcasting practices implemented by Sanoma, a Finnish television broadcaster, which the Finnish Communications Regulatory Authority (the “Authority”) considered to be infringing the national legal provisions implementing the Directive. More specifically, Sanoma split the television screen into two parts at the end of its programmes: one displaying the preceding programmes’ closing credits, and the other one presenting the upcoming programme. In addition, some of its programmes were sponsored; sponsor logos were often displayed at times other than during when the sponsored programmes were being broadcast. Furthermore, Sanoma did not include “black seconds” breaks between advertising spots within the total amount of time dedicated to advertising. After receiving an order from the Authority, Sanoma filed a petition before the Finnish Administrative Court of Helsinki against the Authority’s decision. The Court confirmed the decision, and Sanoma filed an appeal before the Supreme Administrative Court of Finland, which decided to defer to the ECJ for clarification on how to interpret the Directive.

  1. The first question asked to the ECJ was whether a split screen that shows the closing credits of a television programme in one column and a list presenting the broadcaster’s upcoming programmes in another column was an appropriate means of separation between the audiovisual programme itself and the advertising. According to Article 19 par. 1 of the Directive, television advertising and teleshopping must be (i) readily recognisable, and (ii) distinguished from editorial content. The ECJ held that the Directive must be interpreted as not precluding national legislation allowing a split screen between the programme and the advertising for the upcoming programmes provided that such a means of separation meets the requirements listed above, a matter which is for the referring court to establish. It is worth noting that the ECJ did not follow the General Advocate’s opinion that there should be additional visual or audio warnings to inform the public that the second column of the screen is actually advertising.
  2. The second question asked to the ECJ was whether the Directive must be interpreted as precluding sponsorship signs shown in programmes other than the sponsored programme itself from being included in the maximum time for the broadcasting of advertising per clock hour. Pursuant to Article 10 of the Directive, viewers shall be clearly informed of the existence of a sponsorship agreement, and sponsored programmes shall be clearly identified as such with the name, logo and/or any other symbol of the sponsor, displayed at the beginning, during and/or at the end of the programmes. Such indications shall not be included in the maximum time for the broadcasting of advertising per clock hour since they are required by law. However, according to the ECJ (and in line with the Advocate General’s Opinion), when the sponsorship signs are not displayed in the sponsored programme itself but in other programmes, those signs are to be included in the maximum time for the broadcasting of advertising per clock hour.
  3. The third and last question asked to the ECJ was whether the “black seconds” in between spots should be included in the maximum time for the broadcasting of television advertising per clock hour, being 20%. Article 23 par. 1 of the Directive states that television advertising and teleshopping spots must not exceed 20% of a clock-hour time. According to the ECJ, the point of setting a maximum time for advertisement broadcasting is to insure that 80% of the whole broadcasting time be devoted to the broadcasting of programmes or other editorial content. Therefore the ECJ not only rules in favor of the inclusion of those “black seconds” in the maximum time for advertisement broadcasting but considers that national law shall not allow for the exclusion of the black seconds in the calculation of such time. Although the Advocate General based its reasoning on distinct considerations relating to the protection of the interests of viewers as consumers, its conclusion was the same as the ECJ’s: the “black seconds” should be included in the maximum time for the broadcasting of television advertising per clock hour.

For more information on the Advocate General’s Opinion, please read our post dated October 19, 2015.