The Audiovisual Media Services Directive – a “potential loophole” exposed by a recent decision of the European Court of Justice (Peugeot Deutschland GmbH v Deutsche Umwelthilfe sV Case C-132/17)

In the recent case of Peugeot Deutschland GmbH v Deutsche Umwelthilfe, the European Court of Justice gave a preliminary ruling concerning the interpretation and scope of the Audiovisual Media Services Directive (2010/13/EU) (“the Directive”). This decision exposes a potentially significant loophole in the Directive, namely the exclusion of self-promotional channels on You-Tube: they are neither audiovisual media services, nor commercial communications and are therefore beyond its scope.

Background

Peugeot Deutschland runs a promotional channel on You Tube. In February 2014, it posted a 15 second film featuring one of its latest models, the RCZ R Experience. The video did not include any information about the car’s fuel consumption or CO2 emissions. Deutsche Umwelthilfe, a non-profit environmental and consumer protection association in Germany, brought a case claiming that the omission of these details infringed a German regulation, derived from Directive 1999/94/EC, which requires that consumers must be informed about fuel consumption and CO2 emissions in the marketing of new passenger cars. These provisions apply to advertising material distributed in electronic form and advertising through electronic, magnetic or optical storage media.

Peugeot Deutschland maintained that the video was excluded from this requirement. It relied on a 2003 European Commission Recommendation which exempts “audio-visual media services” as defined in the Directive.

The German Appeal Court requested a preliminary ruling from the European Court of Justice on the issue as to whether the video was in fact an Audiovisual Media Service (AVMS) within the meaning of the Directive and it posed the question:

“Does a person who runs a video channel on the YouTube internet service on which internet users can view short advertising videos for new passenger car models operate an audio-visual media service within the meaning of Article 1(1)(a) of the Directive?”

The Decision

The ECJ decided that a video of this kind fell outside of the definition of an AVMS. To constitute an AVMS, a principal purpose of a programme must be to educate, entertain or inform the general public. That was not the case with this video: its main purpose was to promote a product. Neither was the video an audiovisual commercial communication, as it was not “accompanying or included in a programme in return for payment or for similar consideration or for self-promotional purposes”. The videos on Peugeot’s channel were independent of each other, they were not ‘accompanying’ nor were they ‘included’ in a programme.

Practical implications

This decision exposes potentially significant lacunae in the Directive. However, from a consumer protection perspective, this proved to be a positive finding: it meant that the promotion in question was not exempt from the requirement to provide information about CO2 emissions. In the UK context, an internet based platform of this nature which does not fall within the criteria of an AVMS or a Commercial Communication, would nevertheless in all probability be treated as a non-broadcast electronic media and therefore be subject to the CAP Code.

Inevitably there is much speculation at present as to whether the UK will continue to be subject to the Directive post-Brexit. The Prime Minister’s recent Mansion House speech suggests a willingness to maintain some regulatory alignment in the Broadcasting sector, but the all important details remain unknown.

This article was written by Paul Herbert, Partner, Corporate, with assistance from Miriam Doukhan, Trainee Solicitor.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.