Advocate General Ćapeta delivers her Opinion in two Greek Joined Cases

The case concerns the interpretation of Directive 2010/13/EU as amended by Directive 2018/1808/EU (the AVMS Directive), more specifically the obligations that this instrument imposes on the national regulatory authorities as regards media service providers that broadcast exclusively online.

The Facts:

The two joined cases [C-555/23 (Makeleio) and C-556/23 (Zougla)] concerned the imposition by the Greek national media regulatory authority NCRT of administrative sanctions on providers of a website broadcasting a live journalistic audiovisual programme a couple of hours per day exclusively online.

The grounds for imposing the sanctions were: i) incitement to hatred against persons on grounds of their alleged sexual orientation (Art. 6 of the Directive*) and ii) violation of the protection of human dignity and of the national provision on ‘required quality level of broadcast content’.

The legal issue:

Stating that national law does not expressly confer jurisdiction to the NCRT to regulate media content broadcasted exclusively online, the Greek Council of State stressed that these administrative sanctions will be considered legal, only if they can be based on the provisions of the Directive.

The Procedure and time-line:

• The Council of State, the Greek supreme administrative court, referred several preliminary questions to the Court of Justice of the European Union (CJEU) regarding the interpretation of the AVMS Directive. 
• An oral hearing with the parties took place on 16 October 2024; discussions focused on the exact scope of the AVMSD and the protection of human dignity, the notion of predictability and whether media service providers can be expected to foresee sanctions if their broadcasts violate human dignity regardless of the national law about sanctions
• On 30 January 2025, Advocate General Ćapeta delivered her Opinion in the Joined Cases which is not binding for the CJEU and does not predetermine the outcome of the preliminary reference. 

The Advocate General Opinion:
 

Protection of human dignity under the AVMS Directive: 

The Advocate General considers that the introductory part of Art. 6(1)* of the Directive means that member states are required to provide a general prohibition of programmes violating human dignity in their national laws and to ensure that media service providers respect this obligation. The Advocate General also considers that the prohibition of the violation of human dignity must be imposed on all media service providers without distinction and that member states are not allowed to treat internet media service providers differently from any other type of media service provider.

Regulatory scope of the AVMS Directive: 

The Advocate General considers that the Directive does not interfere any further with the content of the programmes, beyond the requirement:

1. that a programme be free of violations of human dignity; and
2. that it respect the other obligations specifically imposed under its coordinated rules.

Hence, a national measure that provides for the sanctioning of programmes which are merely of poor quality does not fall under the coordinated fields of the Directive. Therefore, member states are not prevented by the Directive from treating traditional broadcasters and internet broadcasters differently as regards the prohibition of poor quality in the content of a programme.

Scope of the obligation to interpret national law in the light of the AVMSD: 

The Advocate General also examines whether there is an obligation to interpret national law in such a way that it imposes a prohibition of the violation of human dignity on media service providers broadcasting exclusively online, even when national law only provides for such a prohibition on traditional media. Such an interpretation would effectively result in the imposition of administrative penalties on internet media service providers without the existence of an express legal basis under national law. However, she adds that such an explicit mention in the legislation is not necessary for the principle of legality to be fulfilled so long as the person could foresee that the prohibition contained in the national legislation also concerned their activity and could not therefore have ignored that their action was prohibited. It is for the national court to establish whether the applicants could have foreseen at the time when they broadcasted the programmes that the prohibition of the violation of human dignity and the punishment for the infringement thereof also concerned their activity, even though national law did not specifically impose such a prohibition for internet news portals broadcasting audiovisual content. 

For more details, see also the memo drafted by the NCRT.
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* Article 6: […] Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any:

1. incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter; […]

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Source: the NCRT (GR)