European Court of Justice continues to grapple with online media issues

Judges at the European Court of Justice (ECJ) continue to grapple with online media issues. The latest case concerns when is a multimedia news outlet also an audiovisual service provider. The difference is important because the two are subject to different regulatory regimes.

New Media Online is an Austrian company that operates the website of the Tiroler Tageszeitung newspaper under the name Tiroler Tageszeitung Online. On that website, a separate section entitled “Video” included a catalogue of around 300 videos of short duration more or less linked thematically to the content of the website and originating from various sources.

In 2012, the Austrian regulatory authority found that this video section must be subject to reporting obligation as it constitutes an on-demand audiovisual media service. New Media Online lost its appeal against the decision of the regulatory authority and appealed. The Austrian Supreme Administrative Court asked the ECJ to rule on the question of what amounts to an audiovisual media service.

On July 1, 2015, the adviser to the ECJ, Advocate General Szpunar, said that the website of a daily newspaper containing audiovisual material should not be considered as an audiovisual service under the EU’s Audiovisual Media Services Directive. He concluded that the EU legislature did not intend to include online information portals within the scope of the Audiovisual Media Services Directive. He considered that the multimedia nature of portals does not permit the audiovisual content placed on them to be analysed separately from the rest of the portal.

On October 21, 2015, the ECJ ruled that the concept of “programme” in the Audiovisual Media Services Directive has to be understood as also referring to the provision of videos of short duration consisting of local news bulletins, sports and entertainment clips. The manner in which the videos were selected was not different from what is proposed by on-demand audiovisual media services. The Court recalled that the purpose of the Audiovisual Media Services Directive was to prevent on-demand audiovisual media services from engaging in unfair competition with traditional television.

The ECJ also stated that the principal purpose of a service making videos available in the electronic version of a newspaper must be assessed as to whether the content and form are dependent from the journalistic activity of the operator of the website. An operator of a website, when its service is part of a publishing company of a daily online newspaper, is therefore not automatically excluded from the application of the Audiovisual Media Services Directive: this would run the risk that some operators use a multimedia portal to evade the legislation. The level of protection granted to consumers should not depend on whether the televisual content represents a minor or a major part of what the undertaking offers.

The ECJ has therefore somewhat surprisingly found the scope of the Audiovisual Media Services Directive to be broader than many assumed. In practice, this means that multimedia portals operators will have to demonstrate that the video component is very closely related to the journalistic activities if they wish to avoid the application of the Audiovisual Media Services Directive.