New Media Online case - Opinion of Advocate General

On 1 July 2015, Advocate General Maciej Szpunar delivered his non-binding opinion in the case New Media Online.

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 of Austrian regulator KommAustria. The latter had deemed a subsection of a service offered in the electronic version of a newspaper the Tiroler Tageszeitung that consisted of short video clips an audiovisual media service. 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 issues of the TV-like character of a service and

• how to assess the notion of principal purpose.

According to the Advocate General, the services offered by New Media Online GmbH do not fall within the scope of the AVMS Directive and, reaching further, he concludes by stating that “neither the website of a daily newspaper containing audiovisual material nor any section of that website constitutes an audiovisual media service within the meaning of that directive”. By assessing the catalogue of video material placed on the Internet as a separate service, the Austrian regulatory authority has followed a broad definition of audiovisual media services, which is in his view not compatible with the objectives of the legislature pointing to a narrow interpretation.

Regarding the video catalogue as a separate service make “the criterion relating to principal purpose (lose) all meaning” as “it makes the scope depending on the architecture of a specific website at a specific time”. The concept of “television-like” as expressed in recital 24 is to be considered “as an expression of the legislature's concern about maintaining undistorted competition between similar kinds of economic activity by subjecting them, at least in essence to similar rules“ and thus is to be treated strictly. He continues by adding that “non-linear services should not become a separate regulatory subject matter of the directive”.

In addition, the Advocate General interprets recital 28 in a dynamic way ("in the light of the current state of the development of information society services") as an indication of the legislature to exclude from the scope of the directive “all kinds of internet information portals which are multimedia in nature”. Hence, the multimedia nature of portals such as the Tiroler Tageszeitung Online website does not allow analysing the videos as a service provided separately but only as the audiovisual part of a whole, even if such audiovisual contents are placed in a separate section.

The outcome of the New Media Online case is much awaited as it will be the first time that the Court of Justice has the opportunity to rule on the interpretation of the concept of an audiovisual media service within the meaning of the AVMS Directive.
 

For the last five years or so, regulatory authorities have faced difficulties in applying the cumulative constitutive criteria of Art. 1, especially the TV-like character and the principal purpose and editorial responsibility criteria, when deciding whether a specific service falls within the scope of the AVMSD. As Advocate General Maciej Szpunar rightly put it "the present case provides an illustration of the dilemmas with which the bodies responsible for monitoring compliance with market law and regulations are confronted”.
 

The opinion is also a clear illustration of the favourite method of interpretation utilised by the Court, the teleological method, which seeks to interpret a rule by taking into account the purpose, aim and objective it pursues. An excessively broad regulation might indeed render the directive ineffective.
 

Yet, there are some rather puzzling elements in the reasoning of Advocate General Maciej Szpunar, who choses from the start to follow “a more general approach” and rather than focusing on the two criteria at stake, focuses on the the scope of the directive with respect to content which is publicly available via the internet. In his view, “the AVMSD did not prove to be future-proof” and the regulation of audiovisual content on the internet “must be adapted to the specific characteristics of the Internet, in particular to its multimedia nature”.
 

It remains to be seen whether the Luxembourg judges will follow this rather restricted view on the scope of the Directive. In any case, this is likely to provide additional food for debate in the context of the REFIT exercise and the announced review of the AVMS Directive.

• Opinion of Advocate General Szpunar delivered on 1 July 2015 Case C‑347/14 New Media Online GmbH
• CURIA Press Release

Source: CURIA Website