VwGH: When is a YouTube channel an audiovisual media service?

Jan 21, 2022 Benn-Ibler Rechtsanwälte

The existence of a service within the meaning of Articles 56 and 57 of the Treaty on the Functioning of the European Union (TFEU) requires that the provider of the service to be assessed participates in economic life with the service. If a service is not connected with an economic activity, but is provided exclusively for social, political and similar motives, the criterion of remuneration is not met.

In the case in question, the Administrative Court (Verwaltungsgerichtshof, VwGH) dealt with the hobby blogs and videos of the appellant and the question of when a YouTube or Facebook channel is an audiovisual media service according to Section 2 no. 4 of the Audiovisual Media Services Act (Audiovisuellen Mediendienstgesetz, AMD-G). The competent authority considered this to be the case, as the appellant was offering a service under Art. 56 and 57 TFEU, which appear to be like "broadcasts". The appellant would reach the same audience as television broadcasts due to the structure of the videos (moderation by the appellant; broadcasts for information, education or entertainment). In addition, the appellant has repeatedly been able to obtain small donations - but according to his own statements, never to cover the costs.

The VwGH considered that an audiovisual media service under Sec. 2 no. 4 AMD-G would only qualify as a service under Art. 56 and 57 TFEU if six criteria were cumulatively met, namely that a principal purpose or a separable part of the service consisted in providing broadcasts for information, entertainment or education to the general public via electronic communications networks under the editorial responsibility of a media service holder. It follows from the considerations of the Media Services Directive that it is also of central importance whether the service is a development of a regular, and not merely sporadic or irregular, activity and whether services are usually offered by competitors for a fee.

Ultimately, according to the VwGH, there was no evidence of an economic activity in the case at hand due to the lack of remuneration, which is why the decision of the VwGH was overturned.

Ra 2021/03/0061 (05.10.2021)