Audiovisual Media Services Rule As Well As The ‘Newspaper Exception'

Lorna Woods, Professor of Internet Law, University of Essex

Case C-347/14 New Media Online GmbH v. Bundeskommunikationssenat, 21 Oct 2015

Historically in that place has been a distinction betwixt regulation of broadcasting together with regulation of newspapers, amongst the latter existence dependent champaign to much lighter touching regimes, frequently self-regulatory.  European Union police push clit harmonised, amongst the Television without Frontiers Directive, goggle box broadcasting, amongst newspapers – insofar equally they were caught yesteryear European Union police push clit at all – existence dealt amongst nether the full general gratis crusade together with contest provisions.  The Television without Frontiers Directive was revised twice, inward the human face upward of changing technology together with the evolution of on-line data services, together with became the Audiovisual Media Services Directive, harmonising at a minimum score regulation non only inward relation to traditional television, but also on need provision that was ‘television like’.  In this novel regime, assist was taken to exclude newspapers.  As services remove maintain developed, however, the boundary betwixt a ‘text-based’ paper together with audiovisual has larn blurred, equally paper companies started to expand what was offered, specifically the inclusion of video sections on the paper site.  Do such activities silent actually qualify for the ‘newspaper exception’?  This contentious inquiry arose inward a reference from the Austrian courts inward the New Media Online case, which the ECJ ruled on yesterday.

Facts

NMO was a paper companionship amongst an online newspaper.  While the site mainly features articles from the written press, it did include a subdomain which provided a catalogue of video clips across a hit of topics.  Very few of the videos, to a greater extent than or less of which were real short, were connected to detail tidings stories.  The Austrian regulatory regime establish that NMO was providing an on-demand  audiovisual media service inside the feel of the AVMSD.  This was challenged earlier the Austrian courts which referred ii questions to the ECJ on the pregnant of 

·         A ‘programme’ and

·        Audiovisual media service.

As regards the kickoff question, the referring courtroom questioned whether real brusk clips could live on considered equivalent to a programme on tv.  In detail it noted that a broadcaster of goggle box would non set frontwards such a compilation. The ECJ ruled that the focus of the analysis should live on on the programme (or video clip) together with non on the way the videos are compiled.  The ECJ together with thence pointed out that in that place is no minimum length for a programme prepare downward inward the AVMSD; farther goggle box tin include to a greater extent than or less brusk programmes.  The ECJ took the keystones of the concept to live on their shape (that is audiovisual); their audience (a volume audience) together with their acquit on on that audience, inward accordance amongst the interpretation given inward Recital 21.  The webservice also fitted inside the reach of the Definition of ‘on need media service’ provided inward Article 1(1)(g) AVMSD, inward that the minute of viewing the programme is chosen yesteryear the viewer from a catalogue provided yesteryear the supplier (here the index on the website).  On that footing the ECJ concluded that:

‘the way inward which the videos at effect inward the principal proceedings are selected is no unlike from that proposed inward the context of on-demand audiovisual media services which autumn inside the reach of that directive’. [21]

In principle, it seems equally though the AVMSD would apply, unless the service tin live on said to autumn inside the ‘newspaper exception’.  Recital 28 specifies that ‘electronic versions of newspapers together with magazines’ prevarication exterior the reach of the AVMSD.  Recital 22 clarifies that audiovisual content which is incidental to to a greater extent than or less other service together with practise non constitute the services regulation role practise non constitute audiovisual media services inside the directive.  Recital 28 inward identifying paper together with magazines is a shape of subspecies of this full general rule.  We are left amongst together with thence the inquiry of what is incidental.  The ECJ made clear that

 ‘recital 28  … cannot live on understood equally pregnant that an audiovisual service must systematically live on excluded from the reach of  [AVMSD] alone on the Earth that the operator of the website of which that service is a business office is a publishing companionship of an online newspaper’. [28]

This agency that whether or non an on-demand service exists must live on assessed on a instance yesteryear instance basis.  Indeed, the ECJ highlighted the run a peril of multimedia companies seeking to evade regulation through a formalistic interpretation of the  AVMSD.  This would live on peculiarly problematic given that i of the purposes of the AVMSD was to practise a score playing champaign betwixt unlike operators.  This leads to an approach which looks at the website, rather than the nature of the provider.  The attempt out is whether the service is:

‘regardless of the framework inward which it is offered, the provision of programmes to inform, entertain or educate the full general public’.  [33]

While this is a inquiry of fact for the national court, the ECJ specified that the inquiry is whether the video content has shape together with content divide from the paper content.  Here it was important that the content was non linked to specific articles; hither the shape of the website cannot live on decisive.  It is rather a inquiry of the links betwixt content.

Comment

This instance confirms what has been known for a patch inward the UK, at least: the recital 28 cannot live on seen equally an automatic ‘get out of gaol free’ carte du jour for paper proprietors.  What is noticeable close the reasoning is the emphasis on the inwardness of what is provided rather than formalistic criteria which are capable of manipulation.  The ECJ is witting of the possibility of abuse together with also of the ask to ensure consumer (or viewer) protection.   It agency that inward regulation parts of a website could live on dependent champaign to audiovisual regulation, though it silent seems equally though the paper elements would non be. The hard inquiry is nevertheless where exactly the boundary should live on drawn.  It has been suggested (within the United Kingdom of Great Britain together with Northern Ireland of Britain together with Northern Republic of Ireland at least) that divide domicile pages together with divide catalogues for video sections of sites would tend towards a finding of an on-demand service.  Whether the avoidance of such structures (which seemed at to the lowest degree inward business office acquaint here) would live on sufficient is to a greater extent than or less other question.  In this case, the ECJ emphasised firstly that length is non a determinative factor together with the ask to remove maintain links betwixt the content of the paper or journal together with the videos.  One mightiness inquiry how unopen the links to the inwardness of the paper would remove maintain to be: would the Max Mosley gender activity videos link to whatever storey close Max Mosley? 

Barnard & Peers: chapter 14

Photo credit: fastcompany.com

Share this post