The ECJ rules on questions referred on the Audiovisual Media Services Directive (2010/13/EU)
Sanoma Media Finland Oy - Nelonen Media v Viestintävirasto, Case C-314/14, 17 February 2016
The questions referred in this case to the ECJ by the Supreme Administrative Court of Finland were in relation to the interpretation of the Audiovisual Media Services Directive (2010/13/EU) the "Directive", in particular Articles 19(1): separation of television advertising and programmes and Article 23(1) and (2): limit of 20% per clock hour on the broadcasting time for television advertising spots.
Under EU Law
Article 19(1) of the Directive provides: "Television advertising and teleshopping shall be readily recognisable and distinguishable from editorial content. Without prejudice to the use of new advertising techniques, television advertising and teleshopping shall be kept quite distinct from other parts of the programme by optical and/or acoustic and/or spatial means".
Article 23(1) and (2) of the Directive provides: "The proportion of television advertising spots and teleshopping spots within a given clock hour shall not exceed 20%".
Under Finnish Law
Television advertising and teleshopping broadcasts must be distinguished from programmes by an acoustic or optical signal or by screen splitting; a sponsor's name or logo must appear clearly at the beginning or the end of sponsored programmes; and advertising and teleshopping must not exceed 12 minutes per clock hour (this does not apply to sponsorship announcements).
A request for a preliminary ruling was made by the Supreme Administrative Court of Finland in proceedings between Sanoma Media Finland Oy - Nelonen Media ("Sanoma") and Viestintävirasto (Telecommunications Regulatory Authority, the "Regulatory Authority").
Sanoma is a supplier of audiovisual media services including the broadcast of programmes together with advertising and sponsored programmes. The Regulatory Authority found that Sanoma had infringed Finnish Law relating to television advertising as follows:
Separation of television advertising and editorial content
Sanoma uses a 'split screen' technique whereby the screen is divided into two parts after a programme's closing credits begin, with a list presenting upcoming programmes in the other part of the screen. The Regulatory Authority took the view that this technique did not adequately separate the programme from the advertising break.
Duration of advertising per clock hour
The Regulatory Authority found that Sanoma was broadcasting 12 minutes and seven seconds of advertising per clock hour which was in breach of the Finnish hourly maximum duration of 12 minutes. It reached this conclusion by counting as advertising time a) the presence of signs referring to a programme sponsor outside of the sponsored programme itself and b) the 'black seconds' during the advertising break and separating the programme from the advertising break.
The Supreme Administrative Court of Finland referred the following questions:
- Whether Article 19(1) precludes national legislation under which a split screen to separate advertising and editorial content would not necessarily have to be combined with or followed by an acoustic or optical signal.
- Whether Article 23(2) precludes sponsorship signs shown in programmes other than the sponsored programme from being included in the maximum time for advertising per clock hour set out in Article 23(1).
- Whether Article 23(1) precludes 'black seconds' inserted during the advertising break and separating the programme from the advertising break from being included in the maximum time for advertising per clock hour.
Separation of advertising
The Directive did not preclude national legislation under which a split screen technique did not necessarily have to be combined with an acoustic or optical signal, provided that the minimum method of separation required by the national legislation met the requirements of Article 19(1) i.e. ensuring that television advertising and teleshopping is readily recognisable and distinguishable from editorial content.
Sponsorship signs outside of sponsored programmes
The maximum advertising per clock hour in Article 23(1) does not apply to 'sponsorship announcements' as defined in the Directive. Sponsorship announcements should be placed before, during or after the programme to which they are strictly linked. Where sponsorship signs are not placed within the 'framework of the sponsored programme' but instead are shown in programmes other than the sponsored programme, the ECJ ruled they would not be covered by the exception and would have to be included in the calculation of advertising per clock hour.
'Black seconds' in advertising per clock hour
The Directive does not preclude 'black seconds' from being included in the maximum advertising per clock hour. Further, it was concluded that where national legislation has not laid down stricter rules than established by Article 23(1), the Directive should be interpreted to require the inclusion of 'black seconds' in the calculation of advertising per clock hour in order not to reduce the clock time reserved (by implication) for the broadcasting of editorial content.
Under the Directive, Member States remain free to impose more detailed or stricter rules in the areas covered by the Directive and the UK has done just that in relation to the advertising per clock hour. Further, the UK has not implemented the above provisions in the exact way that Finland has and so the case is not directly comparable. The judgment is however of interest as to how these particular Articles of the Directive should be construed.
This article was written by Tanya Wilkie. For more information, please contact Tanya on +44 (0)20 7203 5058 or at firstname.lastname@example.org
News & Insights
PremFlix: the Premier League’s plans to introduce a ‘Netflix-style’ OTT service
Last week it was reported that English football’s top flight is planning to offer its own bespoke streaming service in some territories.
Brexit and the Withdrawal Agreement
An overview of changes after the conclusion of the Withdrawal Agreement.