Advocate general Maciej Szpunar said that a newspaper website, regardless of whether it contains a dedicated video section, should not be classed as an 'audiovisual media service' and should not therefore be subject to the rules contained in the AVMS Directive. Opinions of advocate generals to the Court of Justice of the EU (CJEU) are non-binding, but the CJEU often follows their guidance when issuing judgments in cases.
The AVMS Directive provides a European-wide standard on governing audio and visual content that is under the editorial responsibility of an audiovisual media service provider. The Directive applies to audiovisual media services that constitute television broadcasting as well as 'on-demand' services found online that are 'TV-like'.
The Directive lays out a range of rules that providers must adhere to, including restrictions on advertising and sponsorship as well as rules designed to ensure the protection of minors.
In reviewing a case referred to the CJEU from Austria, the advocate general said "only a service whose principal purpose is to communicate audiovisual content is an audiovisual service" for the purposes of the AVMS Directive. He said that the websites of daily newspapers that contain multimedia content do not meet this criteria.
The legal advisor also said that a recital to the Directive states that the Directive should not apply to 'electronic versions of newspapers and magazines’ and that multimedia content posted on newspaper websites falls within the scope of that exemption.
"The emergence of multimedia internet portals containing audio and audiovisual material in addition to written content and photographs is not the result of the technological development of television, but an entirely new phenomenon linked primarily with the increase in the bandwidth of telecommunication networks," advocate general Szpunar said in his opinion.
"Secondly, the multimedia nature of portals … does not permit the audiovisual content placed on it to be analysed separately from the rest of the portal, even if those audiovisual materials are collected in a separate section of the portal. The essence of a multimedia service is the combination of different forms of communication — word, image and sound — and the specific architecture of the portal is merely a secondary technical aspect," he said. "Such a multimedia internet portal is the current form of what the legislature, when working on the Audiovisual Media Services Directive, could still describe as the ‘electronic version of newspapers or magazines’," he said.
In the UK, the Authority for Television On Demand (ATVOD) is responsible for regulating video on-demand services in line with the AVMS Directive.
According to guidance ATVOD published last year (17-page / 598KB PDF), although the AVMS Directive states that electronic versions of newspapers and magazines "will not constitute" an on-demand programme service (ODPS), and therefore are exempt from regulation, websites offering an online newspaper or magazine "may also offer an ODPS among other services".
"There is a difference between (a) an online newspaper offering video reports which supplement and sit alongside text-based news stories, and (b) an online newspaper giving over a distinct section of its website to TV-like programmes which have no clear and direct link to the broader ‘newspaper’ offering and which could exist as a standalone service," ATVOD has said in its guidance.
ATVOD chief executive Peter Johnston told Out-Law.com that its guidance reflects an Ofcom ruling in a case concerning video content on the Sun website. ATVOD previously ruled that those services were subject to its regulation, but that decision was overturned by Ofcom on appeal.
“We look forward to the judgement of the CJEU," Johnston said. "Once it has been delivered, we will consider whether it has any implications for our guidance."