Shall the revised Audiovisual Media Services Directive* lead to an extension of provisions applying to traditional broadcasters to online broadcasters?

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 facts:

The two joined cases [C-555/23 (Makeleio) and C-556/23 (Zougla)] concerned the imposition by the Greek national media regulatory authority - the NCRT - of administrative sanctions on providers 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:

1. Can the protection of human dignity and the requirement for a minimum quality level of broadcast content be under the regulatory scope of the Article 4 (1) of the Directive***, despite the fact that there is no express mention in that regard in its provision?

2. Does extending national provisions on traditional broadcasters to media providers broadcasting exclusively online comply with the principle of equal treatment (Articles 20 and 21 of the Charter of Fundamental Rights of the European Union)? If so, shall the Member State be obliged to extend these provisions to all online audiovisual media providers, by virtue of the principle of equal treatment?

3. Does extending these rules comply with the principle of legality (Article 49(1) of the Charter)?

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.

Update:

The CJEU has published a summary of the joined requests for a preliminary ruling and has invited the NCRT to send its position on the matter by December 29. 

- Summary of the request for a preliminary ruling by the CJEU - Case C-555/23 (Makeleio)

- Summary of the request for a preliminary ruling by the CJEU - Case C-556/23 (Zougla)

For more details, see also the memo drafted by the NCRT.

Last update: 6 November 2023.

---

*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:

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; […]

*** 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.

---

Source: the NCRT (GR)