On October 21, 2015 the European Court of Justice of the European Union (ECJ) issued a very interesting preliminary ruling decision (see case C‑347/14, available here) concerning the possibility to qualify as “on-demand” audiovisual media services videos available on the online website of a newspaper, bearing in mind that, as a general principle, the AVMS Directive (Directive 2010/13/EU) does not apply to the electronic versions of newspapers and periodicals.
The appellant in the main proceedings (i.e. New Media Online GmbH) 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 a link to the subdomain, http://video.tt.com, entitled “Video”, which led to a page on which it was possible, thanks to the search catalogue, to access more than 300 videos. It should be noted that very few of the videos which appeared in the videos subdomain had a connection to the articles featured on the Tiroler Tageszeitung newspaper website.
With a decision of October 9, 2012, the Austrian Communications Authority found that, in relation to the videos subdomain, New Media Online GmbH was providing an on-demand audiovisual media service (which, pursuant to Austrian law, is subject to a reporting obligation) arguing that “The videos subdomain was televisual in nature and had an independent function with respect to the Tiroler Tageszeitung newspaper website. It met the criterion according to which the principal purpose was to inform, entertain or educate the general public“.
The Federal Communications Board confirmed the decision of the Austrian Communications Authority, so that New Media Online GmbH brought an appeal before the Austrian Administrative Court (“Verwaltungsgerichtshof“). Before that Court, the appellant claimed that the audiovisual content accessible in the videos subdomain is only ancillary to its main website and is not an audiovisual media service. Moreover, it claimed that the short videos provided in the videos subdomain are not comparable, in their form and content, to the television broadcasting service.
The Administrative Court, acting as referring Court, asked to the ECJ the following:
- whether the videos proposed can be classified as a “programme“, within the meaning of Section 1(1)(b) of AVMS Directive and, more specifically, whether the video collection at issue complies with the requirement set out in that provision, namely that its form and content must be comparable to those of television broadcasting; and
- whether the “principal purpose” of the service at issue is the provision of programs to inform, entertain or educate. According to the Court, the AVMS Directive gives no clear indication as to whether the classification of a service as an audiovisual media service in the light of the “principal purpose” depends on the full range of a service provider’s services or whether a separate examination of each service may be envisaged.
The ECJ Ruling
First of all, the ECJ ruled that the fact that the videos are short does not rule out their classification as a “programme“, within the meaning of Article 1(1)(b) of AVMS Directive. Such provision does not contain any requirement relating to the length of the set of images concerned. In addition, as stated by the European Commission stated, television broadcasting offers, alongside programmes of long to medium length, programmes of short length.
That said, the manner in which the videos are selected is not different from that proposed in the context of on-demand audiovisual media services, which fall within the scope of AVMS Directive. The purpose of such Directive is indeed to apply, in a particularly competitive media landscape, the same rules to actors competing for the same audience and to prevent on-demand audiovisual media services, such as the video collection at issue, from engaging in unfair competition with traditional television.
In light of the foregoing considerations, the answer to the first question is that the concept of “programme” must be interpreted as including, under the subdomain of a website of a newspaper, the provision of videos of short duration consisting of local news bulletins, sports and entertainment clips.
Furthermore, an approach systematically excluding from the scope of the AVMS Directive services managed by publishers of daily online newspapers due to their multimedia nature, without assessing on a case-by-case basis the “principal purpose” of the service at issue, would not sufficiently take into account the diversity of the situations which could be envisaged and would run the risk that operators effectively providing audio-visual media services within the meaning of the AVMS Directive might be able to use a multimedia portal in order to elude the legislation which is applicable to them in that area.
The ECJ argued that the level of protection granted to consumers could not be dependent on whether the same televisual content is offered by an undertaking for which that content is only of minor importance, or by an undertaking for which that content represents all that it offers.
Based on the above, according to the ECJ the answer to the second question must be that, on a proper interpretation of the AVMS Directive, assessment of the “principal purpose” of a service making videos available offered in the electronic version of a newspaper must focus on whether that service as such has content and form which is independent of that of the journalistic activity of the operator of the website at issue, and is not merely a crucial complement to that activity, in particular as a result of the links between the audio-visual offer and the offer in text form. That assessment is a matter for the referring Court.
However, the ECJ further stated that, in the case at stake, very few press articles are linked to the video clips at issue. Moreover, according to the information in the documents before the Court, the majority of the videos can be accessed and watched regardless of whether the articles of the electronic version of a newspaper are consulted. “Those factors tend to show that the service at issue in the main proceedings could be regarded as having form and content which is independent of that of the journalistic activity of the appellant” and, therefore, as constituting a distinct service from the other services offered.