Lorna Woods, Professor of Internet Law, University of Essex
Case C-347/14 New Media Online GmbH v. Bundeskommunikationssenat, 21 October 2015
Traditionally, broadcasting and newspapers have been regulated differently. Newspapers have enjoyed more lenient, often self-regulatory, oversight. EU law harmonized television broadcasting through the Television without Frontiers Directive. Newspapers, if subject to EU law, fell under general free movement and competition rules. As technology evolved and online information services emerged, the Television without Frontiers Directive underwent revisions, becoming the Audiovisual Media Services Directive. This directive aimed to harmonize, at a minimum level, regulations for traditional television and “television-like” on-demand services. Notably, newspapers were excluded. However, the line between “text-based” newspapers and audiovisual content has blurred as newspapers incorporate video content. This raises the question: do these activities still fall under the “newspaper exception”? This debate surfaced in the Austrian courts’ referral of the New Media Online case, which the ECJ ruled on yesterday.
Facts
NMO, a newspaper company, had an online newspaper primarily featuring written articles. However, a subdomain hosted a catalog of diverse video clips, some very short, with few connected to news stories. Austrian regulators determined that NMO provided an on-demand audiovisual media service under the AVMSD. NMO contested this in Austrian courts, leading to two questions referred to the ECJ:
- The definition of a “programme.”
- The definition of an “audiovisual media service.”
The referring court questioned if short clips were equivalent to TV programs, noting that broadcasters wouldn’t compile such clips. The ECJ emphasized that the focus should be on the program itself, not its compilation. It highlighted the absence of a minimum program length in the AVMSD and the existence of short TV programs. The key elements were the program’s audiovisual format, its target audience (mass audience), and its impact on that audience, aligning with Recital 21. The web service also matched the “on-demand media service” definition in Article 1(1)(g) AVMSD, allowing viewers to choose their viewing time from a provider’s catalog (the website index). Therefore, the ECJ concluded:
“the manner in which the videos at issue in the main proceedings are selected is no different from that proposed in the context of on-demand audiovisual media services which fall within the scope of that directive”. [21]
The AVMSD would generally apply unless the service falls under the “newspaper exception.” Recital 28 exempts “electronic versions of newspapers and magazines” from the AVMSD. Recital 22 clarifies that audiovisual content incidental to a primary service and not its main purpose doesn’t constitute an audiovisual media service under the directive. Recital 28, by specifying newspapers and magazines, acts as a sub-category of this rule. The question then becomes: what qualifies as incidental? The ECJ stated:
“recital 28 … cannot be understood as meaning that an audiovisual service must systematically be excluded from the scope of [AVMSD] solely on the ground that the operator of the website of which that service is a part is a publishing company of an online newspaper”. [28]
Therefore, the presence of an on-demand service requires a case-by-case assessment. The ECJ highlighted the danger of multimedia companies evading regulation through a strict interpretation of the AVMSD, especially since one of the AVMSD’s goals was to level the playing field. This necessitates a website-focused approach, examining whether the service, regardless of its context, offers:
“the provision of programmes to inform, entertain or educate the general public”. [33]
While the national court decides this, the ECJ emphasized assessing if video content is separate from the newspaper content in form and substance. The lack of links between the content and specific articles was crucial, meaning the website’s structure wasn’t decisive. Instead, the focus should be on the connections between different types of content.
Comment
This case confirms what has been understood, at least in the UK: Recital 28 isn’t a free pass for newspaper publishers. Notably, the reasoning prioritizes the substance over the form, avoiding easily manipulated criteria. The ECJ recognizes the potential for abuse and the need to safeguard consumers (or viewers). This means that elements of a website might face audiovisual regulations, while the newspaper aspects may not. The challenge lies in determining the boundary. Suggestions (in the UK) include separate homepages and catalogs for video sections indicating an on-demand service. Whether avoiding these structures (seemingly present here) would suffice is another matter. The ECJ emphasized that content length isn’t decisive and stressed the need for links between the newspaper’s or magazine’s content and the videos. One might question the required closeness of these links: would Max Mosley sex videos relate to any story about Max Mosley?
Barnard & Peers: chapter 14
Photo credit: fastcompany.com