March 1, 2016

The CJEU has ruled on provisions under the Audiovisual Media Services Directive (2010/13/EU) concerning: (i) the separation of broadcast advertising and television programmes under Article 19(1); (ii) whether “black seconds” (black images lasting under one second) used as an additional means of separating advertising from programmes should be included in advertising time or programme time (Article 23(1)); and (iii) whether references to programme sponsors included other than in the sponsored programme itself should be considered to be advertising time or not (Article 23(2)).

The case concerned Finnish broadcaster Sanoma Media Finland Oy–Nelonen Media, which had been found by the Finnish regulatory authority to be infringing Finnish law by not adequately separating ad breaks from TV programmes.  It also found Sanoma to be infringing by being seven seconds over the maximum amount of time allowed per hour for advertising under Finnish law.  The matter went to the Finnish Supreme Administrative Court, which referred three questions to the CJEU.

The CJEU found that national law was not precluded from providing that the “split-screen” technique used by broadcasters in order to separate the end of a programme from the ad break following it (whereby the screen was divided into two columns after a programme’s closing credits began, with the credits in one column and a list of upcoming programmes in the other) necessarily had to be followed by an acoustic or optical signal, if such spatial means of separating the programme from the ad break was effective in satisfying the requirement that advertising be distinguishable from editorial content under Article 19(1).  Whether a particular technique complied or not was a question for national courts.

The CJEU also found that sponsorship signs shown in programmes other than the sponsored programme itself should be included in the maximum time for advertising per hour.

Finally, the CJEU held that where a Member State has not made use of the power to set a stricter rule for the amount of advertising per hour than that established by the AVMS Directive, “black seconds” should be included in the calculation of the maximum time for advertising per hour, rather than programme time.  (Case C-314/14 Sanoma Media Finland Oy–Nelonen Media v Viestintävirasto 17 February 2016 (unreported) — to access the judgment in full, go to the curia search form, type in the case number and follow the link).