In his Opinion delivered on Thursday 5 July in Case C-298/17, Maciej Szpunar, the Advocate General to the European Court of Justice, held that a member state can demand that public television bodies do not oppose the retransmission of their programmes streamed live on the Internet if this obligation does indeed pursue a goal upholding the general interest and if the company retransmitting the programmes has been able to clarify the question of copyright.
The Playmédia company retransmits streamed live television programmes on the Internet, particularly in France. Directive 2002/22 (the so-called universal service directive) allows a state to impose “reasonable obligations” on companies providing network communications used by the public broadcasting of radio and TV channels to broadcast certain radio and television channels. The company considers that it is fulfilling these conditions and should therefore have the right to broadcast programmes by France Télévisions.
In 2015, the Conseil supérieur de l’audiovisuel (CSA) notified France Télévisions and that it should not oppose the broadcasting of its programmes by Playmédia. France Télévisions then took the matter to the Council of State, which referred the case to the Court to shed light on the question.
In his Opinion, Mr Szpunar first of all points out that Playmédia is not a business involved in providing network electronic communications under the terms of the universal service directive.
Nonetheless, the Advocate General holds that a State can impose on companies like Playmédia an obligation to broadcast television programmes if it requires the television bodies concerned not to oppose this kind of broadcasting.
However, for this obligation restricting the freedom to provide services to be able to find a favourable reception within Union law, Mr Szpunar considers that it should pursue a goal of general interest, for example, by maintaining the pluralism in the TV programmes on offer and that it is not disproportionate with regard to this objective. He adds that it will be up to the Council of State to decide whether this criterion is satisfactory.
Finally, in order for this broadcasting to be allowed, the Advocate General considers that Playmédia must reach a preliminary agreement with the holders of copyright or neighbouring laws protecting the retransmitted programmes. (Original version in French by Lucas Tripoteau)