A recent ECJ judgment dealt with an Austrian case in which local TV regulators argued that encouraging viewers to call in to a show using premium rate lines amounted to teleshopping and/or TV advertising. How can this be and what was the Euro appeal court’s verdict? Ray Coyle dials in.
Who: Kommunikationsbehorde Austria v Osterreichischer Rundfunk
When: 18 October 2007
Where: The European Court of Justice, Luxembourg
Law stated as at: 1st November 2007
The Austrian courts referred a case, Kommunikationsbehorde Austria v Osterreichischer Rundfunk (who operate the television channel ORF) to the European Court of Justice ("ECJ") for a ruling on the meaning of "television advertising" under the Television without Frontiers Directive (Directive 89/552). The dispute in question was whether ORF had breached the provisions of the Directive in respect of television advertising or teleshopping. The Austrian communications authority contended that promotion of a game featured on a programme called Quiz-Express, which required viewers to dial a premium rate number was either television advertising or teleshopping. The Directive requires that television advertising and teleshopping should be recognisable as such and kept separate from other parts of the programme. In this instance, the game was an integral part of the programme so, if found to be teleshopping or television advertising, it would be in breach.
While the ECJ were reluctant to find that the promotion of the game constituted television advertising, their decision leaves the question of whether such promotions can constitute teleshopping far more open. The key point in their decision is that, to constitute teleshopping, the promotion must constitute "a real offer for services". The court accepted that an activity which enables users, in return for payment, to participate in a prize game may constitute a supply of services. However, they then referred the matter back to the national court to carry out an assessment of the factual circumstances, stating that they should take into account:
- the purpose of the broadcast of which the game forms part;
- the significance of the game within the broadcast as a whole; and
- the type of questions which the candidates are asked.
Why this matters:
The acceptance by the court that the promotion of a premium rate game can constitute teleshopping is an important step as it widens the definition of an offer for services considerably.
The Directive is shortly to be replaced by the proposed Audio Visual Media Services Directive. However, the definition for teleshopping remains the same in the current draft of the new Directive. The ECJ judgment on the interpretation of the term will, therefore, continue to apply. Article 10 of the proposed Directive retains the provision that teleshopping must be kept "quite distinct from other parts of the programme".
Producers and broadcasters of programmes that include the opportunity for viewers to participate in premium rate games should be aware that, unless the game is only a minimal part of the content and does not change the nature of the broadcast or involve questions which are connected with the promotion of goods, they may find that they are unlawfully integrating teleshopping within the programme.