Advocate General Szpunar has come to rather radical conclusions regarding the scope of the AVMS Directive in his non-binding opinion on the New Media Online GmbH case (C-347/14 - Reference to the EU Court of Justice for a preliminary ruling).

His opinion goes far beyond the specific questions submitted to the EU Court of Justice: in his view, the “case concerns more general issues relating to the scope of the directive with respect to content which is publicly available via the internet” (par. 13, emphasis added).

His conclusions – in particular if followed by the Court of Justice – could raise fundamental questions for the forthcoming review of the Directive.

In the present case, there may be good reasons to argue that the website of a daily newspaper containing audiovisual material is not an audiovisual media service within the meaning of the Directive. However the Advocate General's approach goes much further and restricts the Directive’s scope to such extent that one may wonder what impact such an interpretation could have on the continued relevance of the Directive in a converged multimedia world.

The Advocate General's starting point is that “defining a legal framework for the functioning of the internet is one of the main challenges currently facing the legislature as well as the judiciary of all the countries of the world” and that this “calls for new legal instruments, often built on entirely new bases” (par. 2).

In his view, the AVMS Directive, despite the intentions of its authors, did not prove to be “future-proof” (par. 34) and its rules on non-linear services are “merely a derivative of the rules on linear services, that is to say television” (par. 21 and 29). Accordingly, the rules of the Directive should not be applied to new varieties of audiovisual services appearing on the Internet, but only to those non-linear services that “are in direct competition with television, that is to say those offering the same content in a non-linear form” (par. 52; see also par. 47, 52 and 53).

Referring to Recital 24, which qualifies on-demand audiovisual media services as being “television-like”, the Advocate General develops his argumentation by stating that it was not the intention of the legislature to extend the Directive’s scope to “new phenomena connected with the spread of the internet, in particular broadband internet, such as the emergence of multimedia websites” (par. 47).

Moreover, he re-interprets Recital 28, which clarifies that the Directive does not cover “electronic versions of newspapers and magazines”, in a dynamic way (in view of today’s level of development of internet technology, see par. 34), suggesting that it “must be interpreted as an indication that the legislature’s intention was to exclude from the scope of that directive all kinds of internet information portals which are multimedia in nature, that is to say contain audiovisual content among other things” (par. 49, 54).