The Council of State, the Greek supreme administrative court, in its decisions 1349/2023 and 1350/2023, has recently referred several preliminary questions to the Court of Justice of the European Union (CJEU) regarding the interpretation of Directive 2010/13 as amended by Directive 2018/1808 (the Directive) and the obligations that it imposes on the national regulatory authorities as regards media service providers that broadcast exclusively online.
The case concerned the imposition by the Greek national media regulatory authority - the NCRT - of administrative sanctions on a provider of a website broadcasting exclusively online a live journalistic audiovisual programme a couple of hours per day. The grounds for imposing the sanctions were: i) incitement to hatred against persons on grounds of their alleged sexual orientation (Article 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 Greek Council stated:
- the NCRT was entitled to rely on Article 6 of the Directive** to sanction the media service provider for incitement to hatred.
- The protection of human dignity and the requirement for a minimum quality level of broadcast content are not expressly enshrined in the Directive. Therefore, the Council decided to refer to the CJEU on this point.
The preliminary questions:
In case of an affirmative decision by the CJEU, all member States and their national regulatory authorities could be obliged, by virtue of the provisions of EU law, to extend to media service providers broadcasting exclusively online all the obligations that the national law provides for traditional media service providers.
Due to the duration of the judicial procedures, the CJEU ruling is not expected before 2025.
For more details, see the memo drafted by the NCRT.
*Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 (consolidated version)
** 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:
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; […]
*** Article 4(1): Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive, provided that such rules are in compliance with Union law.