Following our report on 7 October 2015 on the Opinion of Advocate General Szpunar in the case of New Media Online GmbH, the Court of Justice of the European Union has adopted a contrary position to that of the Advocate General.
In his Opinion, the Advocate General stated that internet information portals of a multimedia nature are not covered by the Directive, because the content concerned is not “TV-like”. The CJEU, however, found that if the audiovisual service consists of content and form independent to that of the journalistic activity of the online newspaper website and is not simply complementary to that activity, then it may indeed be an audiovisual media service under the AVMS Directive.
The Austrian Court requested the CJEU to:
- firstly, provide an interpretation of Article 1(1)(b) (the definition of “programme”), and
- secondly, give its views on whether the assessment of the “principal purpose” of a service under Article 1(1)(a)(i) in the context of electronic versions of newspapers can be based on a subsection of the website that offers a collection of mainly short videos, which in other sections of the website are used only to supplement articles in the online newspaper.
Definition of “programme”
The CJEU said that the Directive’s definition of “programme” meant that short video clips should be compared to the form and content of a television broadcast programme, and not that a catalogue of short videos should be compared to a complete schedule or a catalogue of broadcasts. The CJEU stated that the length of the video was irrelevant and that the way in which the videos were selected by readers of the online newspaper was no different from the manner in which an on-demand audiovisual media service is selected.
The purpose of the Directive was to apply the same rules to all services competing for the same audience and the CJEU found that short videos such as in this case did indeed fall within the definition of “programme”.
Assessment of “principal purpose”
The CJEU noted that Recital 22 of the Directive states that services whose audiovisual content is merely incidental and does not constitute its principal purpose do not satisfy the definition of an “audiovisual media service”. Further, Recital 28 states that electronic versions of newspapers and magazines are excluded from the scope of the Directive. However, the CJEU stated, this should not be understood as meaning that an audiovisual service should systematically be excluded from the scope of the Directive just because the operator of the website is a publishing company of an online newspaper. The “principal purpose” of the service must be assessed on a case-by-case basis, in order to prevent operators of audiovisual services using multimedia portals to avoid having to comply with the Directive. CJEU suggested a “substantive approach”, which consists of examining whether the “principal purpose” of the audiovisual service consists of, in itself and regardless of the framework in which it is offered, programmes to inform, entertain or educate the general public.
Therefore an assessment of the principal purpose of a service offering audiovisual content in an electronic version of a newspaper must focus on whether that service has content and form which is independent of that of the journalistic activity of the operator and is not complementary to that activity. .
Juliane Althoff, Associate, Michael Simkins LLP