Cookies on Pinsent Masons website

Our website uses cookies and similar technologies to allow us to promote our services and enhance your browsing experience. If you continue to use our website you agree to our use of cookies.

To understand more about how we use cookies, or for information on how to change your cookie settings, please see our Cookie Policy.

Video channels with promotional content exempt from EU video rules

Promotional videos that businesses post on dedicated channels of online video service platforms are not subject to the EU's Audiovisual Media Services (AVMS) Directive, the EU's highest court has ruled.26 Feb 2018

The Court of Justice of the EU (CJEU) considered the issue in a case referred to it from a court in Germany where an environmental and consumer protection body has challenged whether a video posted by Peugeot on its YouTube channel breached German environmental laws.

Deutsche Umwelthilfe has claimed that the video promoting one of Peugeot's models failed to disclose details of the vehicle's fuel consumption, CO2 emissions and energy consumption when it should have done.

The German law exempts AVMS, as defined by the AVMS Directive, from this requirement and Peugeot has argued on appeal before the Federal Court of Justice in Germany that its videos fall within the exemption. The German court asked CJEU to help it interpret the EU law to help it reach a conclusion on the issue.

The CJEU said that the AVMS Directive essentially defines an ‘audiovisual media service’ as "a service 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".

The "promotional purpose" of Peugeot's video channel is therefore enough to "exclude it" from falling within the definition of 'audiovisual media service', it said.

"A promotional video channel on the YouTube internet service ... cannot be regarded as having as its principal purpose the provision of programmes in order to inform, entertain or educate the general public," the CJEU ruled.

The purpose of the AVMS Directive is to create a level playing field for all providers of audio visual media services competing for the same audience in the EU, including on-demand services such as those provided by Netflix, Hulu and Amazon. It covers both TV and 'TV-like' services.

The AVMS rules do not apply to electronic versions of newspapers and magazines or media content that is incidental to and complement the articles, although videos on the websites or apps that are independent of the journalistic activity of the online newspaper, or video areas of an online newspaper, have been found to be subject to the rules. Generally, services with editorial responsibility are subject to the rules.

The AVMS Directive sets out rules applicable to content and advertising in relation to linear and non-linear AVMS, including rules relating to harmful material, advertising, sponsorship and product placement. Specific restrictions on TV advertising, impairment of minors, and right of reply in relation to incorrect facts in a television programme, also apply.

The ruling comes at an important juncture as the European Commission considers whether to further regulate video-sharing platforms.