ECJ: Internet videos in the press subject to broadcasting law

More and more newspaper and magazine companies are serving the public interest in information not only by offering written articles on their websites, but by also using the technical possibilities of the internet to publish associated or stand-alone video content. The ECJ has now decided on the basis of a request for a preliminary ruling by the Austrian Federal Administrative Court concerning the Audiovisual Media Services (AMS) Directive (Directive 2010/13/EU – AMS Directive) that this video content may potentially be classifiable as broadcast-related telemedia, meaning that the rules on advertising and sponsoring under broadcasting law have to be complied with (judgment of 21.10.2015 – case C-347/14). In Article 58(3) of the German Interstate Broadcasting Treaty, the broadcasting rules applying to areas such as advertising, surreptitious advertising, product placement and sponsoring under the AMS Directive are transposed and applied by analogy in Germany to websites whose form and content are “television-like” and are made available by a provider for individual on-demand retrieval at a time determined by the user from a catalogue of contents determined by the provider (known as “on-demand audiovisual media services”).

Background

In the Austrian proceedings, the daily newspaper Tiroler Tageszeitung had brought legal action against the classification of the video content on its online portal as an on-demand audiovisual media service, since this type of service is subject to disclosure requirements under Austrian law. The Tiroler Tageszeitung offered more than 300 videos lasting 30 seconds or more on diverse subjects in its video section, only a small number of which were related to press articles. It justified the action by maintaining that because of the short duration of the videos they could not be compared to broadcasts – the German terminology for this is “television-like” (fernsehähnlich) – and that the video section was not the principal purpose of the newspaper’s website. It argued that, according to the recitals of the AMS Directive, electronic versions of newspapers and magazines do not fall under the scope of the Directive, at least provided that their audiovisual content does not constitute the principal purpose of the service.

Same rules for all content directed at the same public

The ECJ did not accept this argumentation. It pointed out that the comparability of the videos to broadcasts could not be denied simply because of their short duration. In doing so, the Court is not only contradicting the interpretation by the Tiroler Tageszeitung but also the supervisory practice of British regulator OFCOM, who up to now has not regarded short videos as falling under the scope of the AMS Directive. In the ECJ’s opinion, it is crucial that the same rules apply for all content directed at the same public. It maintains that since short reports can also compete with reports offered on TV, the duration of the videos is irrelevant. Furthermore, it contends that when judging whether a video section constitutes the principal purpose the provider’s overall offering should not be taken as a basis; instead, it is necessary to ask whether the video content has the autonomous and independent purpose of providing a programme aiming to inform, entertain or educate the public. Moreover, if videos are shown in their own section without a link to the text offering, their purpose is not simply as an inextricable complement to the editorial activities of the press.

Video offerings have to comply with the requirements on advertising and sponsoring

According to these guidelines issued by the ECJ, videos which are offered on a website and listed in a catalogue for which the provider bears editorial responsibility and which autonomously contribute to public information constitute on-demand audiovisual telemedia services under the terms of Article 58(3) Interstate Broadcasting Treaty. This means that they have to comply with the strict requirements on advertising and sponsoring under broadcasting law. The ECJ states that this applies (also and above all) to newspaper and magazine companies offering videos on a separate lower-level page of their website independently of any accompanying articles. If the moving images are simply published in connection with corresponding text reports, their purpose is to complement press activities and Article 58(3) Interstate Broadcasting Treaty therefore does not apply. What is unclear is whether an additional collection of these accompanying videos in an online archive should be classified as a television-like service. However, a stand-alone video archive that is presented to the user without the corresponding press reports can probably no longer be interpreted as being an “inextricable complement” to the text-based press activity. Such online archives would consequently be on-demand audiovisual media services and would have to comply with the provisions of broadcasting law.