On October 6th, 2015, Advocate General of the European Court of Justice (ECJ) Maciej Szpunar issued an Opinion about the interpretation of the provisions of the Audiovisual Media Services Directive[1] (the “Directive”) relating to television advertising and commercial sponsorship[2].

At stake are 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 the times when the sponsored programmes were 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 European Court of Justice for clarification on how to interpret the Directive.

According to the Directive, the obligations of TV broadcasters with respect to advertising include the following[3]:

  • Television advertising and teleshopping must be readily recognisable, and distinguished from editorial content. Optical, acoustic and/or spatial means must be used to keep those contents clearly distinct from editorial ones (Article 19 1.);
  • The viewers of sponsored programmes must be clearly informed of the existence of a sponsorship agreement. Such programmes must be clearly identified by the name, logo or symbol of the sponsor, displayed at the beginning, during and/or at the end of the programmes (Article 10 1. c));
  • Television advertising and teleshopping spots must not exceed 20% of a clock-hour time (Article 23 1.). Announcements relating to the broadcaster’s programmes and ancillary products directly derived from those programmes, sponsorship announcements and product placements are not subject to this time limit (Article 23 2.).

In its Request for a preliminary ruling to the ECJ, dated July 1st, 2014 , the Supreme Administrative Court of Finland asked three questions, to which the Advocate General provides clear answers in its Opinion:

  • First, the Finnish Court asked whether Article 19 of the Directive contradicts the Authority’s interpretation that the splitting of the screen is not an appropriate means of separation between an audiovisual programme and TV advertising, when there is no acoustic or optical sign that expressly states the beginning of an advertisement. The Advocate General agreed with this interpretation. In his view, the presentation of upcoming programmes amounts to an advertisement of such programmes, and Sanoma’s screen division practice is not sufficient to comply with the Directive’s requirements. Indeed, viewers must be made aware that a programme constitutes an advertisement, through an acoustic or visual signal. The Advocate General also suggests that such warning must indicate the type of commercial message (advertising, broadcaster self-advertisement, etc.).
  • The second question raised by the Finnish judges regards the scope of Article 23 paragraph 2. While Sanoma displayed sponsor information in connection with programmes other than the sponsored ones, the Authority’s view was that such sponsor signs are advertising spots and must actually be included in the 20% maximum amount of advertising time. The Advocate General concurs and explains that information displayed in relation to the sponsorship agreement aims at both promoting the sponsor and complying with the Article 10 requirements of information. Since such information does not differ from advertising by its objective or substance, Article 23’s exemption only covers announcements made in order to comply with Article 10. Indeed, considering that such displays are advertisements, the 20% time limit could be easily circumvented if they could be broadcast at any time.
  • Last, the ECJ was asked to rule on the notion of “advertising spot”. The Authority considered that “black seconds” breaks between advertisements must be included as part of the total advertising time allowed. In 1999, the ECJ had ruled that the objective to ensure free broadcasting of television programmes allowed the highest number of advertising breaks[4]. More recently, the ECJ balanced this principle with the imperative to protect viewers from excessive advertising broadcasting[5]. In line with this position, the Advocate General considered that the interpretation of Article 23 must take into account the financial interest of both TV broadcasters and advertisers as well as the viewers’ interest. In his opinion, lawmakers used the expression “advertising spots” to distinguish such spots from other kinds of audiovisual communications, which are excluded from the time limit. Thus, even though “black seconds” breaks are necessary from a technical point of view, the Advocate General considered that for the purposes of Article 23 paragraph 2, “black second breaks” must be included in the total advertising time.

The ECJ’s final decision on this case should in theory be delivered by the end of the year. This being said, it is worth noting that even though the Advocate General’s Opinion is not binding towards the ECJ, the ECJ often follows the Advocate General’s views.