Advocate General opines that the Audiovisual Media Services Directive (2010/13/EU) does not preclude Member States imposing an obligation to broadcast a foreign TV channel in packages only in order to restrict dissemination of information inciting hatred

The UK company Baltic Media Alliance Ltd broadcasts the TV channel NTV Mir Lithuania, which is intended exclusively for the Lithuanian public and shows mainly Russian-language programmes.

In May 2016, the Radio and Television Commission of Lithuania (RTCL) adopted a measure, in accordance with Lithuanian law, obliging cable or internet broadcasters broadcasting to Lithuanian consumers to cease broadcasting the NTV Mir Lithuania TV channel for a period of 12 months other than as part of packages available for an additional fee. The decision was based on the fact that a programme broadcast on 15 April 2016 on that channel contained information inciting hostility to and hatred of the Baltic States on grounds of nationality.

Advocate General Henrik Saugmandsgaard Øe has opined that the AVMS Directive, which requires Member States to ensure freedom of reception and not to restrict retransmissions in their territory of TV broadcasts from other Member States for reasons such as incitement to hatred, does not prevent the Republic of Lithuania from adopting such a measure.

According to the Advocate General, the AVMS Directive does not prevent the receiving Member State from controlling, through certain specific arrangements, the distribution of TV programmes originating from other Member States. The receiving Member State can therefore require TV channel distributors, on public interest grounds, to organise the services offered by them in such a way that certain channels are included only in specific packages. The Advocate General said that such measures do not hinder the retransmission or reception of the channels concerned. Those channels can still be broadcast and consumers can legally view them, provided that they subscribe to the appropriate package.

Further, the Advocate General opined that the measure adopted by the RTCL was compatible with the freedom to provide services enshrined in Article 56 of the Treaty on the Functioning of the European Union. The measure was justified and proportionate. The Advocate General observed that the Republic of Lithuania had, by means of a reasonable measure, legitimately sought to protect the Lithuanian information area from Russian propaganda in the context of the information war to which the Baltic States are subject. (Case C-622/17 Baltic Media Alliance Ltd v Lietuvos radijo ir televizijos komisija EU:C:2019:154 (Advocate General Opinion) (28 February 2019) — to read the Opinion in full (not yet available in English) and to read the CJEU press release (in English) go to the curia search form, type in the case number and follow the link).