OGH: Request to CJEU for Preliminary Ruling on Streaming Services

May 2, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has referred the question of whether the provision of streaming services constitutes the supply of ‘digital content’ to the CJEU.

The plaintiff in the case at hand is an association authorised to take legal action to protect consumers’interests. The defendant provides a streaming service where digital content is made available for viewing on a server, and customers are granted access via a link or app on their device. Customers can then watch programmes included in their subscription, either live or on demand. Depending on the respective licensors, downloads are also possible. Once downloaded, these can only be viewed once and must be watched in full within 48 hours of starting playback.

An online subscription can only be concluded if the customer agrees to the following contractual provision by clicking on it:

‘When ordering a subscription: I acknowledge the cancellation policy. I agree that [the defendant] will begin executing the contract before the 14-day cancellation period expires and that I therefore lose my right of cancellation when ordering a subscription.’

The plaintiff sought to compel the defendant to refrain from using the cited clause and invoking it in its business dealings with consumers, claiming that the cancellation policy provided consumers with incorrect information. A streaming subscription constitutes a ‘digital service’ in which the right of withdrawal only lapses once the service had been provided in full.

The court of first instance dismissed the action. The court of appeal upheld the appeal and classified the clause as unlawful.

The OGH concluded that there is no case law of the European Court of Justice dealing with the distinction between digital content and services, so that clarification by the European Court of Justice as to whether streaming services are to be regarded as digital content or digital services is necessary.

OGH 9 Ob 48/24k (19 March 2025)