When the Internet competes
with television
Rafał Kuchta
In New Media Online, the Court of Justice
clarified when an online edition of a newspaper
may be considered an on-demand audiovisual
media service.
The Audiovisual Media Services Directive (2010/13/EU)
sets forth rules for provision of audiovisual media
services, which include television broadcasts as well as
on-demand audiovisual media services. Most of the
requirements under the directive, such as time
limitations on advertising, apply only to television
broadcasts. This essentially has to do with traditional
television channels, where the programme schedule is
set by the broadcaster (linear services).
But a certain set of basic obligations also apply to ondemand services which may compete with traditional
television. This involves for example identification of
advertising and requirements for the ad content,
product placement, sponsored programmes, and
protection of minors.
In practice, the classification of a specific service as an
on-demand audiovisual media service can be doubtful,
particularly when the service offers video materials
online. One of these disputed instances was considered
by the Court of Justice of the European Union in New
Media Online GmbH v Bundeskommunikationssenat (Case
C-347/14, judgment of 21 October 2015), interpreting
for the first time the concept of “audiovisual media
service.”
Factual background of the case
The ruling was issued in connection with a dispute in
a national proceeding involving the online edition of the
Austrian
newspaper
Tiroler
Tageszeitung.
In
a subdomain the publisher offered a catalogue of
various videos, such as clips about 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. Most of the
videos, which ran from 30 seconds to several minutes,
were not connected to articles published on the
newspaper’s site.
The Austrian regulator issued a decision holding that
this service constituted an on-demand audiovisual
media service. The publisher challenged the ruling in
court. The court had doubts how to interpret the
concepts in the directive and requested a preliminary
ruling from the Court of Justice.
Can a video clip be a programme?
The Court of Justice stated that the first question
presented was essentially whether the videos
presented on the newspaper’s site constituted
a “programme” for purposes of the Audiovisual Media
Services Directive.
Under the directive, one of the characteristics of an
audiovisual media service is that its principal purpose is
providing programmes to inform, entertain or educate
the general public. Programmes, in turn (with a certain
oversimplification) are video materials (with or without
sound) constituting an individual item within a schedule
or a catalogue established by a media service provider,
with form and content comparable to television
broadcasting. Examples of programmes include featurelength films, sports events, sitcoms, documentaries,
children’s shows, and original dramas and serials.
The Austrian court had doubts about the disputed
materials, because traditional television did not offer
such compilations of short video items. However, the
Court of Justice pointed out that the complete
compilation of short videos should not be compared to
a broadcaster’s complete schedule or catalogue, but
rather the specific video clips should be compared to
the form and content of television broadcasting.
Moreover, the fact that the videos are short does not
rule out their classification as “programmes,” because
television broadcasting also offers programmes of
varying length. Users could watch the videos at a time
of their choice and they were offered through
a catalogue that was searchable by various criteria. As
the Court of Justice found, this manner of accessing
the materials directly corresponds to the definition of
an on-demand service.
For these reasons, it should also be recognised that the
disputed materials are essentially competitive with
television broadcasting. As appears from the preamble
to the Audiovisual Media Services Directive, the
purpose of the directive is to regulate on-demand
services so that they do not compete unfairly with
television (which is still subject to more stringent
regulations).
Thus, on this issue, the Court of Justice held that the
provision of short videos on local news, sports and
entertainment topics on the subdomain of
a newspaper’s website is a “programme” for purposes
of the Audiovisual Media Services Directive.
And when is offering video clips the principal
purpose of the service?
The Court of Justice stated that the essence of the
second question was what criteria should be used to
assess what is the principal purpose of the newspaper’s
video service. Only services whose principal purpose is
to provide programmes to the general public are
audiovisual media services.
The judges started from the premise, based on the
preamble to the directive, that where any audiovisual
content of a newspaper’s online version is merely
incidental to the service, complementing the text
articles, it is not an audiovisual media service.
Nonetheless, while recital 28 of the preamble states
that the directive “should not cover electronic versions
of newspapers and magazines,” this cannot mean that
a service provider can circumvent the directive simply
by being a newspaper publisher.
Moreover, the classification should not be based on the
overall services offered on the website, because the
level of protection of consumers cannot depend on
whether the publisher attaches greater or lesser
importance to the audiovisual content. And this
approach would make it easy to avoid the regulations
by expanding the services offered by the site.
Thus, in the court’s view, it should be determined
whether the specific service, in itself and regardless of
the context in which it is offered, has the principal
purpose of providing programmes to inform, entertain
or educate the general public.
In the context of this case, this was suggested in
particular by the fact that users could access videos
without having to consult the text articles. Whether
the materials were available at the main site or under
a subdomain was not decisive. The national court
therefore should assess whether the videos were
independent of the articles on the site or inseparably
linked with them.
Summary
The judgment of the Court of Justice is of great
importance not only for the growing number of
newspapers that have expanded their online editions to
include sections with video materials, but also
potentially other online services offering various types
of materials—so long as they take editorial
responsibility for the content. Unfortunately, the court
did not explain more extensively when the connection
between videos and the text context of the site is
strong enough to exclude the application of the
directive. Thus there is a risk that videos by certain
bloggers or vloggers, for example, could be classified as
on-demand audiovisual media services, particularly if
they conduct economic activity on a certain scale and
target their programmes to the general public.
Treating short video clips as programmes, and
requiring the catalogue of such videos to be examined
on their own merits apart from the overall content of
the website, could result in a significant expansion of
the application of the Audiovisual Media Services
Directive. This was pointed out in his opinion by Prof.
Maciej Szpunar, Advocate General at the Court of
Justice, voicing justified concern that an overbroad
interpretation could mean application of the directive
to all audiovisual content on the Internet.
But the directive itself may soon be amended.
Consultations
announced
by
the
European
Commission were recently concluded, and a review of
the directive is to be carried out in 2016.