Introduction

Nowadays newspapers are no longer only produced in printed versions that are distributed for sale in stands on the corner of a street. The media and the companies behind newspapers have had to adapt to the development and demands of consumers who now want news served on-demand and digitally. The regulation of newspapers however has not changed materially during the past years and as a main rule the media and thus newspapers are not subject to restrictive regulation in Denmark or in Europe in general. In contradiction thereto we have the more intensive regulation of television broadcasting, which is harmonised on a European level, e.g. through the directive on Audio Visual Media Services (the "AVMS directive").

In the AVMS directive the EU has taken care of the regulation of traditional television and on-demand content that is “television-like”. However, the EU explicitly excluded electronic versions of newspapers from the scope of the AVMS directive. Due to the developments in the consumer demand and the way we perceive news today it was evident, however, that the day would come where we would need to explore and determine how far the newspaper exception can be stretched. On 21 October, 2015 the CJEU delivered its decision which was contrary to the opinion of the Advocate General put forward in July 2015.

New Media Online

The case brought before the CJEU concerned “Tiroler Tageszeitung online”. Tiroler Tageszeitung online is an online newspaper run by the Austrian company New Media Online. The website featured both written articles and a subsection named "Video" that consisted of more than 300 videos different in length (between 30 seconds and several minutes) and content (about local events, interviews, sports, trailers, guides with creative projects for children etc.). Only very few of the videos had an actual connection with the written content on the rest of the website.

In autumn 2012 the Austrian authorities decided that the service provided by New Media Online was an on-demand audio-visual media service and thus governed by the AVMS directive. The authorities believed that the subsection was “television-like” and had an independent function with regard to the rest of the website. Furthermore, the authorities found that the “principal purpose” of the videos was to inform, entertain or educate the general public. Thus, the criteria under the AVMS directive was fulfilled.

New Media Online disagreed and brought the decision by the authorities to the Austrian courts claiming that the videos merely had a supportive role in respect to the main website and did not aim at offering an audio-visual media service. Additionally, New Media Online argued that the short video sequences due to their length and content were not comparable to a television broadcasting service (“television-like”).

Issues

The questions raised by the referring Austrian court to the CJEU mainly concerned 1) how to interpret the expression “programmes” in the AVMS directive and whether the video gallery in question in form and content was comparable to television broadcasting and 2) whether the principal purpose of the videos (the service) is to be decided based on the subsection (the video gallery) or the website as a whole.

AVMS directive

At this point it might be relevant to pinpoint the wording of the AVMS directive relevant for this case. The definitions are all laid out in article 1 of the directive. Beginning with defining “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 by electronic communications networks […]. Such an audiovisual media service is either a television broadcast […] or an on-demand audiovisual media service […]”.

Continuing on to “programme” defined as “a set of moving images with or without sound constituting an individual item within a schedule or a catalogue established by a media service provider and the form and content of which are comparable to the form and content of television broadcasting. Examples of programmes include feature-length films, sports events, situation comedies, documentaries, children’s programmes and original drama”. And also providing us with the definition of “on-demand audiovisual media service” as “an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider”.

Advocate General

In July 2015 the Advocate General had reviewed the questions and gave his opinion. Initially, he looked at the scope of the AVMS directive and stated that he believed that the main focus of the AVMS directive was to regulate the field of television broadcasting and video-on-demand services. Among other things, the Advocate General stated that he did not believe that it had been the intention of the legislator to make audio-visual content, which would not normally be broadcast via traditional television, be governed by the AVMS directive. Furthermore, he noted that the fact that there was a separate video gallery on the website could not lead to the conclusion that there was a separate service. In his opinion this would make the “principal purpose” criteria lose all meaning as it would then depend on “the architecture of a specific website at a specific time”. Thus, the Advocate General concluded that a subdomain website of a newspaper as the one in question should be excluded from the scope of the AVMS directive.

CJEU ruling

With regard to the first question the court started out by noticing that the videos in question correspond to news bulletins of different length and with different content. Furthermore, the CJEU noted that the criteria to be met is that the videos in question can be compared (in form and content) to a television broadcast service and not that a complete compilation of short videos are comparable to the complete compilation offered by a television broadcaster.

The CJEU continued its reasoning and stated that the definition (the evaluation of whether or not the videos could be considered a programme within the meaning of the AVMS directive) did not depend on the length of the videos, as the CJEU did not believe that a minimum requirement for the duration of the videos could be derived from the AMVS directive. The CJEU went on to highlight the purpose of the AVMS directive being that the same rules must apply to those actors who address the same audience in order to ensure that on-demand audio-visual media service providers do not carry out unfair competition against traditional television broadcasters. This was especially interesting in this case as some of the videos in question actually were produced by a local television broadcaster and were also available on the website of this local broadcaster. Conclusively, the court ruled that a “programme” should be defined as including the provision of short videos on a subdomain website of a newspaper consisting of local news bulletins, sports and entertainment clips as the one in question.

Turning to the second question, the court initially stated that it appears from the AVMS directive that the electronic version of a newspaper shall not (irrespective of the fact that these sometimes do contain audio-visual elements) be considered an audio-visual media service, if these audio-visual elements are only incidental and only used to complement the written articles. This means that if the distribution of the audio-visual media content is only incidental, then the criteria are not met. Additionally, the court went on to establish that the mere fact that a publishing company owns or runs the website is not enough to deem the AVMS directive inapplicable. Thus, it is necessary to make an assessment in each case in order to establish whether a given service is the primary purpose of the website or ancillary to the written articles. Consequently, one must look at the fact whether the service provided has as its primary purpose in itself to inform, entertain or educate the public. This test should not take into consideration whether the services provided are posted on a main website page or through the use of a subdomain website of a newspaper as the one in question.

Clear cut case?

So where does this leave us? As it appears from the above, the opinion of the Advocate General and the ruling of the court differ substantially. Relying on the ruling of the CJEU the newspaper exception seems rather narrow. However, according to the CJEU each matter still needs to be dealt with on a case-by-case basis. In each matter analysing a video service on a newspaper website one has to consider whether the video content is sufficiently connected to the written articles or is independent thereof? This is not an easy task. When is the connection between the written articles and the videos sufficient? According to the CJEU, this is for the national courts to decide.

The CJEU, though, gives the guidance in respect of the case at hand that it highlights that very few articles in “Tiroler Tageszeitung online” were linked to the video clips, and that most of the videos could be accessed and watched without consultation of articles in the electronic version of the newspaper, which factors "tend to show" that the video service was independent of the newspaper part and thus covered by the AVMS directive. In spite of this guidance, there still seems to be a lot of room for interpretation of the newspaper exception and it is therefore probably not the last court case we will see dealing with this exception.

Martin Dahl Pedersen works within the IP, Media and Entertainment Group of Kromann Reumert, a leading law firm in Denmark. Mr Pedersen became a partner there in 2002. He has many years' experience advising clients in the broad media and entertainment field, particularly within the newspaper, publishing and sports sectors. Mr Pedersen has conducted media and copyright cases of general public importance in which significant principles have been determined, such as the use of digital technology in connection with copyright material and the limits of artistic freedom of expression in relation to the right of privacy. For example, he currently represents the large Scandinavian media conglomerate Aller Media in a controversial principle matter on the protection of journalistic sources in a case where Aller Media is facing criminal charges for abuse of information on celebrities' credit card transactions.

Biographies

DENMARK

New Media Online Decision: The End of Newspaper Exception?

Written by Martin Dahl Pedersen and Linnea Clara Klingberg-Jensen,

Kromann Reumert Law Firm

Martin Dahl Pedersen

Linnea Clara Klingberg-Jensen

New Media Online: Insight into a highly anticipated decision from the Court of Justice of the European Union (“CJEU”) on the extent of the newspaper exception to video content online. Will the huge discrepancies between the opinion of the Advocate General and the decision by CJEU call for another case to be heard or do we now know the limits for newspapers and how to regulate video content online in the future?