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:
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.