March 12, 2018

The claimant, Peugeot Deutschland GmbH, marketed vehicles in Germany under the Peugeot brand. It ran a video channel on YouTube on which, in February 2014, it posted a video of approximately 15 seconds in length with the title “Peugeot RCZ R Experience: Boxer”.

The defendant, Deutsche Umwelthilfe eV, issued proceedings against Peugeot Deutschland in Germany, claiming that the failure to provide, in that video, information on the official fuel consumption and official specific CO² emissions of the new vehicle model being advertised infringed German law.

At first instance, the German court found in favour of Deutsche Umwelthilfe. Peugeot’s appeal was subsequently dismissed.

Peugeot appealed on a point of law and the German appeal court referred to the Court of Justice of the European Union, asking whether a video channel on YouTube, on which users can view short advertising videos for new passenger car models, constituted an “audiovisual media service” within the meaning of Article 1(1)(a) of the Audiovisual Media Services Directive (2010/13/EU).

Peugeot argued that its video channel was indeed an “audiovisual media service”, meaning that Peugeot was exempt from having to provide information in those videos on the official fuel consumption and official specific CO² emissions of the models concerned under German law.

The CJEU noted that the question to answer was whether the definition of “audiovisual media service” covered a video channel, or a single video in isolation.

The CJEU said that an “audiovisual media service” is a service under the editorial responsibility of a media service provider, the principal purpose of which is the provision of programmes to the public that inform, entertain or educate.

A promotional video channel on YouTube could not, the CJEU said, be said to have, as its principal purpose, the provision of programmes that inform, entertain or educate the general public. It was clear that the purpose of Peugeot’s video was to promote, for purely commercial purposes, the product or service advertised.

To the extent that a promotional video could inform, entertain or educate viewers, it did so with the sole aim of, and as a means of, achieving the promotional purpose of the video in question, the CJEU said.

Therefore, even in the event that a promotional video channel on YouTube were to satisfy the other criteria and display the features of an “audiovisual media service” as set out in Article 1(1)(a)(i), its promotional purpose sufficed to exclude it from the scope of that provision.

Further, Peugeot’s video was not an “audiovisual commercial communication” under the Directive as it did not accompany, nor was it included in, a programme in return for payment or for similar consideration or for self-promotional purposes. Inasmuch as a video channel contained solely videos, such as the video in question, which were individual elements independent of one another, it could not reasonably be argued that such video accompanied, or was included in, a “programme”, within the meaning of Article 1(1)(h), the CJEU said.

In addition, it was not possible to separate certain images that had specific advertising purposes from the rest of the video in order to argue that they accompanied or were included in that video, which itself constituted a programme. The video in this case was promotional in its entirety, the CJEU said, and it would be artificial to assert that only the images at the beginning and the end of that video pursued advertising purposes.

The CJEU concluded that Article 1(1)(a) had to be interpreted as meaning that the definition of “audiovisual media service” covered neither a video channel on which users can view short promotional videos for new passenger car models, nor a single video of that kind considered in isolation. (C-132/17 Peugeot Deutschland GmbH v Deutsche Umwelthilfe eV (21 February 2018) —to access the judgment in full, go to the curia search form, type in the case number and follow the link).