Restricting retransmission modalities for reasons of public policy is not restricting ‘freedom of reception’ under Article 3 of the AVMS Directive

The Court of Justice of the European Union has released on 4 July 2019 a judgment following a request for a preliminary ruling from a Lithuanian court.

In this case, the Baltic Media Alliance media provider (‘BMA’), a company registered in the UK with a licence granted by Ofcom, was forced, further to a decision(*) of the Lithuanian Radio and Television Commission (‘the LRTK’) of 18 May 2016, to restrict the retransmission of the Russian-speaking television channel NTV Mir Lithuania by broadcasting it only through pay-to-view packages for a 12-month period. This decision was based on a national Law (Article 33 of the Law on information for the public) which allows the LRTK to apply such restriction in case of retransmission or distribution via the Internet of information inciting hostility to and hatred of the Baltic States on grounds of nationality. Whereas the question of the nature of the content broadcast was not challenged, the non-application of the Article 3 procedure by the LRTK was contested by BMA.

The Lithuanian court asked the CJEU whether Article 3 of the AVMSD applies to measures taken by a receiving Member State with a view to restricting in some other way the freedom of reception of programmes and their transmission.

Following the Advocate General’s opinion, the CJEU held that:

1. Regarding the definition of “media service provider" and the applicability of the AVMS Directive

The Court reminds that the Directive only applies to media service providers, meaning the persons who have editorial responsibility. This responsibility implies selecting the channel’s programmes and organising them in a chronological schedule, regardless of where the content is produced. As a consequence, natural or legal persons who merely distribute programmes for which third parties have editorial responsibility do not fall within the scope of the Directive. The question of whether BMA can be recognised as a media service provider therefore remains, as does the one on the applicability of the Directive.

2. Regarding the "freedom of reception" and the applicability of Article 3 of the AVMS Directive

If the Directive applies, according to BMA and the European Commission’s observations, any restriction of retransmission should be considered as an obstacle to the freedom of reception and should therefore fall within the procedure provided for in Article 3. Rejecting this analysis, the Court held that:

• Firstly, the nature of the media services and their importance for democracy, education and culture and the use of terms such as ‘freedom of reception’ and ‘restrict’ inspired by Article 4 of the  European Convention on Transfrontier Television lead the Court to believe that the EU legislature intended to give a special meaning of the 'freedom of reception', narrower that the concept arising from the ‘restrictions on freedom to provide services’ laid down in Article 56 of the Treaty on the Functioning of the European Union.

• Secondly, a national measure does not constitute a restriction to the ‘freedom of reception’ if it is justified by a general aim of pursuing a public policy objective and does not amount to a second control of the programmes, in addition to the one coming from the broadcasting Member State. In the present case, the Court insists on the fact that this national measure, which pursues, in general, a public policy objective, regulates only the methods of distribution of the programmes without  suspending or banning their retransmission, the channel still being legally broadcast via a pay-to-view package. Therefore, the Court concluded that no “second control” is initiated and the receiving Member State’s measure does not fall within the scope of Article 3 of the AVMS Directive.

(*) Please note that at the time of the request, the LRTK had cancelled its decision, which was only valid for a few days, and had started the derogation procedure laid down in Article 3 of the AVMSD for a temporary suspension of the channel.

• Case Law C-622/17 Baltic Media Alliance Ltd vs LRTK

• Press release

• Opinion of Advocate General

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Other related CJEU case law:

• Mesopotamia Broadcast and Roj TV, C‑244/10

• De Agostini and TV-Shop C‑34/95

Source: Court of Justice of the European Union's website (CURIA)