Television broadcasting or information society service: can the ECJ learn something from a small but complex country as Belgium?

In its conclusion of March, 10, 2005 in the Dutch Mediakabel case before the Court of Justice (case n� C-89/04), Advocate General Tizzano takes the opinion that the technical criterion of point-to-point versus point-to-multipoint transmission is crucial for the qualification of a content service as information society service or as television broadcasting service.

In a preliminary question the Dutch Raad van State (highest administrative court) asked the Court of Justice to shed some light upon the criteria that should be used to distinguish between television broadcasting in the sense of article 1, sub a, of the Television without Frontiers Directive, on the one hand, and information society services in the sense of article 1, sub 2, of Directive 98/34/EC (as amended by Directive 98/48/EC), on the other hand.

The discussion before the Dutch media regulator (Commissariaat voor de Media) and courts concerned Mediakabel�s Filmtime service, which � according to Mediakabel � had to be qualified as information society service for which no broadcasting licence under the Media Act was needed. The Dutch media regulator, however, interpreted this service as near-video-on-demand (since the programmes were broadcast at regular intervals and hence not available for the viewer at any time), and considered the Media Act fully applicable.

The Advocat General confirms that near-video-on-demand constitutes a broadcasting service in the sense of the Television without Frontiers Directive: this follows unambiguously from annex V, point, 3, sub A of Directive 98/34/EC, which states that television broadcasting services �including near-video-on-demand� are excluded from the definition of information society services. After that, he gives the Dutch authorities further guidelines to distinguish between broadcasting services and information society services. Not relevant in his view is the encoded or unencoded form of the transmissions, or the remuneration scheme that is used. Neither useful is the analysis of competitive services (for instance, substitutability of near-video-on-demand by video-on-demand), nor the fact that some provisions of the Television without Frontiers Directive (such as the European quota) can only be applied to near-video-on-demand services in an ineffective manner.

The crucial element is whether the audiovisual data is sent to an individual receiver at his request (point-to-point) � in which case the notion of information society service applies � or whether the data is transmitted without individual demand for simultaneous reception by an unlimited number of individual receivers (point-to-multipoint).

Although this technical criterion might, at first sight, be tempting because of its objective nature, we can wonder whether it is �future proof�. In this regard, it is interesting to note that the Belgian Constitutional Court (Arbitragehof/Cour d�Arbitrage) abandoned a similar reasoning already in 2002, be it in the national context of the division of powers between the federal and regional authorities.
Since in Belgium, the Flemish, French and German-speaking Communities are competent for radio and television broadcasting (including its technical aspects), on the one hand, and the federal legislator for telecommunications, on the other hand, the exact delineation of the notion of broadcasting is highly relevant to the various authorities. Not surprisingly, it has been subject of intense debate and many judicial disputes over the last years.
Although the Constitutional Court initially used the same technical criterion of point-to-point versus point-to-multipoint transmission to make the distinction between telecommunications and broadcasting (decision n� 109/2000 of 31 October 2000), it overruled this case law in 2002 by stating explicitly that the technical means of transmission do not constitute a decisive factor in the qualification of a service as broadcasting (decision n� 156/2002 of 6 November 2002).

What is crucial in the eyes of the Belgian Constitutional Court is the intention of the sender and the degree of confidentiality of the message:
- if the content provider intends to make the audiovisual content available to the public at large (even if extra remuneration is needed) and
- if this content displays no confidential character,
- then the service is considered as broadcasting, even if it is offered at the viewer’s individual request or via distribution means � such as point-to-point techniques � that were formerly not suited for broadcasting (for more information, see my commentary in the Dutch law review Mediaforum 2003/3).
This implies that truly interactive services (such as video-on-demand or web streaming) are to be considered broadcasting services in the Belgian constitutional context. The Flemish media legislation, for instance, requires a declaration (no licence) for such services and imposes minimal conditions.

Perhaps the Advocat General was left no other option than to draw the line between interactive-equaling-information society services, on the one hand, and non-interactive-equaling-broadcasting services, on the other hand, since the E-Commerce and Television without Frontiers Directives are historically based on this distinction. It still remains to be seen whether the ECJ will follow this reasoning or not. In any case, the Belgian Constitutional Court demonstrates that there is another � more evolutive and technologically neutral � way to delineate broadcasting services. Hopefully, the ECJ (or at least the European Commission services responsible for the revision of the Television without Frontiers Directive) will pay some more attention than Tizzano did to the case law of a small but complex country�since in the end, is there any valid reason why similar video-on-demand contents should be regulated otherwise than near-video-on-demand�?