Promotional videos on YouTube are excluded from the AVMSD scope

In its judgment “Peugeot Deutschland” of 21 February 2018 (C-132/17), the Court of Justice of the European Union (CJEU) was requested for a preliminary ruling on the question whether promotional videos published by Peugeot on YouTube could be qualified as audiovisual media services (AVMS) within the meaning of Directive 2010/13.

Peugeot Deutschland had posted a promotional video on its YouTube channel about one of its vehicles. An environmental protection association brought an action against the company on the grounds that the video did not contain any indication of official fuel consumption and specific CO2 emissions. The German judges considered that it was necessary to determine whether the promotional videos published on YouTube could qualify as AVMS within the meaning of Directive 2010/13, since such a qualification would exempt Peugeot Deutschland from the obligation to include in its online videos this information which is required by the German consumer information and protection legislation. The CJEU has therefore been requested for a preliminary ruling on the interpretation of Directive 2010/13.

• The Court first examined the qualification of the video in question under Article 1 (1)(a)(i) of Directive 2010/13. A promotional video channel on YouTube could not, the CJEU said, be said to have, as its principal purpose, the provision of programmes that inform, entertain or educate the general public. The clear purpose of the video was to promote, for a purely commercial purpose, a product or service and that even if it were to inform, entertain or educate viewers, its promotional purpose would suffice to exclude it from the scope of that provision.

• Secondly, the CJEU examined the possibility of qualifying the video under Article 1 (1)(a)(ii) of Directive 2010/13, e.g. as a commercial communication. The Court stressed that “audiovisual commercial communications consist of images designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes”. Since the YouTube channel of Peugeot Deutschland contained only individual and autonomous videos, the video at issue in the main proceedings cannot be regarded as accompanying or being included in a programme within the meaning of Article 1 (a)(ii) of Directive 2010/13. According to the Court, when using the words 'accompany' and 'be included', the EU legislature has targeted individual images which that are part of or even central to a programme. However, this is not the case with the video of the present case.

This video was therefore excluded from the scope of Article 1(1) a) of Directive 2010/13. Consequently, Peugeot Deutschland could not benefit from the exemption from the obligation to include in its online videos the information required under German consumer information and protection legislation.

• Judgment of the Court (Ninth Chamber) of 21 February 2018, Peugeot Deutschland GmbH v Deutsche Umwelthilfe eV, Case C-132/17

Source: CURIA Website