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New Online Media case - ECJ judgement

posted on 13 January, 2016   (public)

New Online Media case - ECJ judgement

In June 2014 the Austrian Supreme Court of Administration had requested a preliminary ruling from the European Court of Justice further to an appeal against a decision by the Austrian regulator KommAustria which had qualified the "Videos" sub-section of the Tiroler Tageszeitung Online’s site as an audiovisual media service on demand. The questions raised revolved around:
  • the definition of an audiovisual media service (Art. 1 (1) (b) and Art. 1 (1) (a) (i)) and, in particular, the question of TV-like character of a service,
  • how to assess the notion of principal purpose.
In its finding published on 1st July 2015, Advocate General Maciej Szpunar proposed a purposive interpretation of these questions when considering that “neither the website of a daily newspaper containing audiovisual materials nor any section of such a site does not constitute an audiovisual media service within the meaning of the directive” and thus, a rather restrictive manner to interpret the scope of the latter.
The outcome of the case was eagerly awaited as it was for the first time that the ECJ would have the opportunity to rule on the interpretation of the notion of audiovisual media service as defined in the AVMS directive and especially, having in mind the particular context of the ongoing "REFIT" exercise and the announced revision of the directive.

By its judgment of 21 October 2015, the Court held that "the concept of ‘programme’, within the meaning of Article 1(1)(b) of the AVMS Directive, 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."

The Court observes that the criterion related to the length of the specific videos is irrelevant and that the way to select the videos in question is no different from the ones proposed by the audiovisual media services on demand. In addition, videos such as those at issue compete with the information services offered by regional broadcasters and music channels, sports channels and entertainment programs. However, the purpose of the European legislation is to apply, especially in the highly competitive media context, the same rules to actors addressing the same audience.

The main scope of the judgement consists of the interpretation of the criterion of the principal purpose of a video service made available as a part of the electronic version of a newspaper. The Court considers that all audiovisual services should not automatically be excluded from the scope of the directive only because the operator of the website concerned is the publishing company of an online journal. In particular, a video section in a website which meets the conditions to be qualified as an audiovisual media service on demand does not lose that characteristic simply because it is accessible from the website of a newspaper or proposed in the context thereof. In such case, it should be examined whether the content and the function of the service are autonomous from those of the journalistic activity of the operator of the website and do not constitute only its inseparable complement, mainly because of the links that present the audiovisual and the text offer.

In this regard, the Court considered that very few articles were logically connected to the videos on the site. Furthermore, it appears that most of these videos are available and searchable regardless of the consultation of articles in the electronic version of the newspaper. All these elements suggest that the service in question could be considered to have autonomous content and function from the journalistic activity of New Media Online, thus constituting a separate service from the others offered by this company and falling within the scope of the AVMS Directive as being an audiovisual media service. The final assessment, however, should be made by the national judges.

Source: CURIA Website