Case C-347/14, New Media Online – using short videos to illustrate online newspaper articles [judgment 2015, ECLI:EU:C:2015:709]

Online newspaper articles are sometimes illustrated by short edited videos. The legal question is whether the newspaper is offering an ‘audiovisual media service’ and thus subject to regulation by the EU’s audiovisual media services Directive 2010/13/EU. The answer is unclear. On the one hand, the video footage might be comparable in form and content to a television programme. On the other hand, there is a non-binding Recital in the Directive excluding the electronic version of newspapers and journals from the Directive.

Facts
New Media Online runs an online newspaper in Austria. Sometimes the newspaper’s articles are furnished with edited video footage. For example, the clips could be of sports news or local events. Readers wanting to watch this footage need only click on a link marked ‘Video’.

Clicking on the link would take readers to a separate sub-domain on the newspaper’s website. On that sub-domain more than 300 videos can be called up and viewed on demand.

In 2012, the Austrian communications regulator informed New Media Online of two findings it had made. First, the newspaper’s website was not an audiovisual media service. Second, the sub-domain was indeed an audiovisual media service; consequently, it was subject to Austrian regulation. The reason given by the regulator for the sub-domain being an audiovisual media service was because the form and content of New Media Online’s service was sufficiently ‘comparable to the form and content of television broadcasting’.

The wording is legally significant. It is used in the EU’s audiovisual media services Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (codified version) (OJ [2010] L95/1) (the AVMS Directive).

The AVMS Directive uses the phrases ‘comparable to the form and content of television broadcasting’ when defining the word ‘programme’ in Article 1, namely:

(b) “programme” means a set of moving images with or without sound constituting an individual item within a schedule or a catalogue established by a media service provider and the form and content of which are comparable to the form and content of television broadcasting. Examples of programmes include feature-length films, sports events, situation comedies, documentaries, children’s programmes and original drama;

In that context, the Austrian regulator observed that this definition in the AVMS Directive expressly mentioned programmes of sports events. Consequently, the regulator took the view that New Media Online’s sub-domain was an audiovisual media service falling within the scope of the AVMS Directive.

New Media Online appealed the decision but without success. Dismissing the appeal, the main planks of the appellate body’s reasoning ran as follows: in terms of the form and content of the videos available on the sub-domain, those videos were no different to programmes distributed by broadcasters; the sub-domain was dedicated to the watching of videos and those videos could be consumed in isolation of the written newspaper articles; the videos were not ancillary to those articles. Furthermore, the sub-domain was furnished with a catalogue of stand-alone video programmes that were available on-demand, something which in itself was sufficient to qualify as an audiovisual media service. Consequently, the video sub-domain was an audiovisual media service and subject to regulation.

New Media Online appealed again, this time to the Austrian Federal Court specialised in administrative law, the Verwaltungsgericht.

The judges could not decide if the sub-domain that was dedicated to videos fell within the scope of Article 1(1)(b)’s definition of ‘programme’. What was not clear was whether the collection of videos on offer was akin to being comparable television broadcasting since the videos on offer were very short clips of (local) news, sport and entertainment – the likes of which would not be shown by traditional television broadcasters.

On balance, the judges felt that in light of the form and content of the service being offered by New Media Online, this could be comparable to television broadcasting services. Nevertheless, there was no case law from the CJEU on this point, and a reference would be made to the CJEU.

However, there was a second problem perplexing the Austrian judges and it too related to the scope of another definition in the AVMS Directive. That is to say, Recital 28 of the AVMS Directive expressly excludes the electronic versions of newspapers and journals from the scope of the Directive. The Austrian judges appreciated that that Recital should inform the interpretation which is given to Article 1(1)(a), that states:

Article 1
1. For the purposes of this Directive, the following definitions shall apply:
(a) “audiovisual media service” means:
(i) a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union which is under the editorial responsibility of a media service provider and the principal purpose of which is the provision of programmes, in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC. Such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph;

Consequently, the issue arose as to whether the principal purpose of a service in an electronic newspaper could be taken into account, or whether attention should be paid just to a particular part of the service. The latter might suffice if the aim of the Directive determined the matter because if the law directed its attention to the principal purpose of a service, then it would be likely that service providers would simply expand the supply of their services in order to wriggle out being regulated by the Directive.

However, for the time being the judges worked on the assumption that when assessing the principal purpose, this was a service in the electronic version of newspapers. In the present case, this was a collection of short videos that had been made available in order to supplement written articles that were found in other parts of the online newspaper.

That said, there was no case law of the CJEU on this point and so a question would need to be asked of the CJEU.

Questions Referred
According to the Curia website, the Verwaltungsgerichtshof in Austria has asked:

1. Should Article 1(1)(b) of /EU […] of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) be interpreted as meaning that the form and content of a service under examination can be considered to be sufficiently comparable to the form and content of television broadcasting if such services are also offered in television broadcasting which can be regarded as mass media and which are intended for reception by, and could have a clear impact on, a significant proportion of the general public?

2. Should Article 1(1)(a)(i) of /EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) be interpreted as meaning that an assessment of the principal purpose of a service offered in the electronic version of a newspaper can be based on a subsection mainly providing a collection of short videos, which in other sections of the website are used only to supplement text articles in the online newspaper?