In a reference from Finland, the CJEU held that Article 19(1) of the Audiovisual Media Services Directive (2010/13/EU), which requires that television advertising be kept distinct from editorial content, does not prevent variations in national legislation so long as the means of separation used allows consumers to differentiate between advertising and editorial content.
The CJEU also clarified Article 23, which restricts the duration of advertising permissible inbetween content. The court held that the calculation of time includes "black seconds" (i.e. black images inserted between advertisements or between advertisements and programmes) and signs referring to a programme sponsor outside of the sponsored programme itself, because the aim of the provision is to protect the quantity of editorial content for consumers.
Sanoma is a supplier of audiovisual media services. The Regulatory Authority found that Sanoma had infringed Finnish television advertising law for the following reasons:
- Sanoma's use of a ‘split screen’ technique (whereby the screen is divided into two parts after a programme’s closing credits begin, with a list presenting upcoming programmes in the other part of the screen) did not adequately separate the programme from the advertising break.
- Sanoma was broadcasting 12 minutes and 7 seconds of advertising per clock hour which was in breach of the hourly maximum duration of 12 minutes. This calculation included within the definition of advertising time:
- the presence of signs referring to a programme sponsor outside of the sponsored programme itself; and
- the ‘black seconds’ during the advertising break and separating the programme from the advertising break.
A request for a preliminary ruling was made by the Supreme Administrative Court of Finland on the following questions:
- Whether Article 19(1) on the separation of advertising and editorial content precluded national legislation regulating the use of split screens.
- Whether sponsorship signs shown in programmes other than the sponsored programme were included in the maximum time for advertising per clock hour set out in Article 23(1).
- Whether ‘black seconds’ inserted during the advertising break and separating the programme from the advertising break were included in the maximum time for advertising per clock hour.
The CJEU held:
- provided that the minimum method of separation required by the national legislation met the requirements of Article 19(1) i.e. ensuring that television advertising and teleshopping is readily recognisable and distinguishable from editorial content, it would not be precluded and a split screen could be used.
- Sponsorship announcements within the framework of the sponsored programme (i.e. placed before, during or after the programme to which they are strictly linked) are not included in maximum advertising per hour in Article 23(1). Anything outside of the sponsored programme would have to be included in the calculation of advertising per clock hour.
- Where a member state has not made use of the power to lay down a stricter rule than that established by Article 23(1), ‘black seconds’ should be included in the maximum advertising per hour.
The judgment provides some welcome guidance on the interpretation of Articles 19(1) and 23(1) of the current Audiovisual Media Services Directive. The revised proposals to amended the AVMS directive seek to replace the current hourly limit with a daily limit of 2-0% of advertising time between 7am and 11pm.
In relation to black seconds, the issues in question may not be directly comparable to UK law. Whilst Finland has implemented the Directive with the 20% per hour maximum advertising limits set by Article 23(1), the UK has imposed a stricter limit of 7 minutes per hour. The CJEU's ruling is less clear as to whether the stricter limits imposed by national legislation would also include 'black seconds' or if these remain subject only to the 20% cap in Article 23(1).
Sanoma Media Finland - Nelonen Media (Judgment)  EUECJ C-314/14 (17 February 2016)