The CJEU issued a preliminary ruling on October 21, 2015 (C-347/14). The request had been made in Austrian proceedings.
The appellant in the main proceedings runs the online newspaper ‘Tiroler Tageszeitung online’, whose Internet address is http://www.tt.com. The website, which mainly features articles from the written press, included, at the material time, a link to the subdomain, http://video.tt.com, entitled ‘Video’ (‘the videos subdomain’), which led to a page on which it was possible, thanks to the search catalogue, to access more than 300 videos.
The videos accordingly put online provided edited reports of varying lengths, from 30 seconds to several minutes, concerning various subjects such as local news and events, vox-pop interviews on current topics, sports events, film trailers, craft activities for children, or readers’ videos selected by the editors. Very few of the videos which appeared in the videos subdomain had a connection to the articles featured on the Tiroler Tageszeitung newspaper website.
The GCEU ruled that Audiovisual Media Services Directive requires that video clips, such as those at issue in the main proceedings, can be compared to the form and content of television broadcasting, and not that a complete compilation of short videos can be compared to a complete schedule or a catalogue established by a television broadcaster.
It is clear from Directive 2010/13 that an electronic version of a newspaper, notwithstanding the audiovisual elements within it, must not be regarded as audiovisual services where those audiovisual elements are incidental and serve only to complement the provision of written press articles.
BUT: A video section which, solely as part of a website, meets the conditions to be classified as an on-demand audiovisual media service, does not lose that classification merely because it is accessible on the website of a newspaper or because it is offered within that site.
CONSEQUENTLY, online-newspapers have to examine whether their services offered include video services that are in form and content independent of that of the written press articles of the publisher of an online newspaper. If so, that service falls within the scope of Directive. If, on the other hand, that service appears to be indissociably complementary to the journalistic activity of that publisher, in particular as a result of the links between the audiovisual offer and the offer in text form, it does not fall within the scope of that Directive.
When carrying out the analysis, the fact that the audiovisual offer at issue is presented in the principal domain of the website concerned or in a subdomain of that website cannot be the decisive factor, so as not to open the way for the rules of Directive to be circumvented by designing that website to that end.