Court of Justice of European Union finds that French provider of TV streaming was not subject to “must carry” obligations under the Universal Service Directive (2002/22/EC), but Member States were not precluded from imposing such obligations under national law

The defendant, Playmédia, offered live streaming of television programmes on its website mainly paid for by advertisements screened before and during those broadcasts.

Playmédia considered that under French law on Freedom of Communication, it had the right to distribute programmes produced by the claimant, France Télévisions SA, which also offered live streaming of those programmes on a website available to the general public.

In May 2015, the Conseil supérieur de l’audiovisuel (CSA) gave France Télévisions formal notice to comply with French law on Freedom of Communication by not opposing the online streaming of its programmes by Playmédia on Playmédia’s website.

France Télévisions contested the order before the Conseil d’État (Council of State), arguing that the conditions under Article 31(1) of the Universal Service Directive were not satisfied when, in particular, it was impossible to assert that a significant number of end users used the network as their principal means of receiving TV broadcasts.

The Conseil d’État referred various questions to the CJEU.

Essentially, it asked whether Article 31(1) of the Universal Service Directive has to be interpreted as meaning that an undertaking which offers the possibility to live stream television programmes online must, based on that fact alone, be regarded as an undertaking that provides an electronic communications network used for the distribution of radio and television channels to the public.

The CJEU observed that Article 31(1) of the Universal Service Directive provides that Member States can impose “must carry” obligations on undertakings providing electronic communications networks used for the distribution of radio or television broadcast channels to the public.

The CJEU noted that “provision of an electronic communications network” was defined in Article 2(m) of the Framework Directive (2002/21/EC) as “the establishment, operation, control or making available of such a network”, and that such definition is applicable in the context of the Universal Service Directive pursuant to Article 2.

The CJEU found that offering live streaming of television programmes online does not come under that definition. The mere fact that an undertaking, in order to offer those services, is a user of an “electronic communications network”, i.e. the internet, does not show that it is, itself, a provider of such a network.

Playmédia, which offered live streaming of TV programmes online, did not provide an electronic communications network, but merely offered access to the contents of audiovisual services provided on electronic communication networks.

The CJEU noted that the regulation of transmission is separate from the regulation of content, and that the common regulatory framework, of which the Universal Service Directive was part, does not cover the content of services delivered over electronic communications networks using electronic communications services.

Further, services providing content are not covered by the common regulatory framework for electronic communication networks and services; those services are not concerned by universal service obligations. It followed that an undertaking offering, by means of a website, access to content provided on the internet does not come under Article 31(1) of the Universal Service Directive.

Therefore, Article 31(1) of the Universal Service Directive means that an undertaking offering the live streaming of television programmes online must not, based on that fact alone, be regarded as an undertaking which provides an electronic communications network used for the distribution of radio or television channels to the public.

However, the CJEU said, the Universal Service Directive does not preclude a Member State from imposing a “must carry” obligation on undertakings which, without providing electronic communication networks, offers the live streaming of television programmes online. This is because the Directives that form part of the common regulatory framework are without prejudice to measures taken at national level, in compliance with EU law, to pursue general interest objectives, in particular relating to content regulation and audiovisual policy. The Universal Service Directive leaves Member States free to impose “must carry” obligations, outside those covered by Article 31(1), in particular on undertakings that, without providing electronic communication networks, offer the live streaming of television programmes online. It is for the domestic courts to determine whether “must carry” obligations have been imposed or not. (Case C-298/17 France Télévisions SA v Playmédia EU:C:2018:1017 (13 December 2018) — to read the judgment in full, go to the curia search form, type in the case number and follow the link).