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The revision of theTelevision
without frontiers directive :
Broad overview
Etienne Wery
Partner at Ulys Law Firm (Brussels-Paris)
www.ulys.net
[email protected]
I.
Introduction : modernisation of
the directive
II.
Calendar
III.
Content of the updated directive (in view of
the 1st reading of the E.P and the
amended proposal of the Commission)
IV.
Conclusion
I. Introduction : modernisation of
the TVSF directive
Dubble aims
- Modernisation taking into account the
technological progress including the
digital « convergence »
- Will to « beter regulate »
• Core issues
- Extension of the scope of the TVWF Directive
to the non linear services
- Simplifications of the advertising rules (+ new
forms of directive are taken into account)
- Improvement of the country of origin principle
- Promotion of the independent and european
production
- Extension of the means of access to the
« short extracts
II. Calendar
13 December 2005 :
13 November 2006 :
13 december 2006 :
12 february 2007 :
29 March 2007 :
Proposal of the Commission
General approach of the
Council
Parliament : adoption of the
1st reading of the Hieronymi
report
Informal council prepared the
ground for adoption of a
common position on the
directive on 24 May 2007
Commission : adoption of an
amended proposal
II. Content of the updated
directive
A. Extension of the scope of the directive
to all the audiovisual services (both
linear and non-linear)
B. New advertising rules
C. Promotion of the cultural diversity in the
audiovisual media
A. Extension of the scope of the
tvsf directive
1. Introduction
Broad consensus about the extension of the
scope of the directive to ALL audiovisual
media services
Amended proposal (recital 5) :
« It is necessary (…) to apply to all
audiovisual media services, both linear
and non linear, a basic tier of
coordinated rules »
2. Scope of the audiovisual media
services directive
a. What covers the notion of « audiovisual
Media Services » ?
a.1. Covers the use of mass media to inform,
entertain and educate
•
Excludes any form of private correspondence
examples : e-mails
•
Excludes services that contain some audiovisual
content if this content is ancillary to, and is not the
principal purpose of the service
examples : travel agency showing a clip of a holiday
resort on its website
a.2. Covers TV-like services
Excludes : electronic versions of
newspapers or magazines, web sites
without audiovisual media content,
mere audio transmissions or radio
a.3. Covers linear and non linear services
b. Distinction between linear and non
linear services
• Non linear services (= on demand services) :
« any audiovisual media service where the user decides
upon the moment in time when a specific programme is
transmitted on the basis of a choice of content selected
by the media service provider »
• Criteria : the choice and the control that the user can
exercise
• The distinction depends on who decides when a specific
programme is transmitted and whether schedules exist
Electronic communications
Exclusion of the scope
Scope of the new audiovisual media services directive
Other services of electronic
communications
Audiovisual media services
Linear services: televisual
broadcasting
Classical
television
Pay per view
Non linear services :
On demand services
Video on
demand
SVOD
Private
correspondence
Electronic versions of
newspapers or
magazines
Radio
Services that contain
audiovisaul content if this
content is not the principal
purpose of the service
3. Basic tier of rules for linear and non
linear services
a. Concerns :
- extension of the « country of origin » principle
- protection of minors
- prohibition of incitement to hatred
- identification of the media service provider
- identification of commercial communication
- prohibition of surreptitious advertising
- clear rules on product placement and
sponsoring
- qualitative restrictions on advertising
b. For other issues : application of the
eCommerce Directive to non linear
services
• Distinction between :
- audiovisual media services
- information society services
• Definition of information society services :
any service normally provided for remuneration, at a
distance, by means of electronic equipment for the
processing (including digital compression) and storage of
data, and at the individual request of a recipient of a
service
So : exclusion of the televisual broadcasting services
(Mediakable Case law)
c. Content of the minimum common
principles
c.1. Extension of the « country of origin »
principle
• This principle states that, where an action or service is
performed in one country but received in another, the
applicable law is the law of the country where the
action or service is performed
• In the TVSF directive : the country of origin principle is
only applicable to the linear services
• The AVMS directive extents the principle to ALL the
services, both linear and non linear
c.2. Minors protection
Appropriate measures to ensure that the
audiovisual media services are not made
available in such a way that might seriously
impair the physical, mental or moral development
of minors
c.3. Prohibition of incitement to hatred
Appropriate measures to ensure that AMS and
audiovisual commercial communications do not
contain any incitement to hatred based on sex,
racial or ethnic origin, religion or belief, disability,
age or sexual orientation
d. Adjustement of the rules applicable to
the linear services
d.1. Reinforcement of the rules to fight against
abusive relocations
• Principle :
A member state may in order to prevent abuse
or fraudulent conduct, adopt appropriate
measures against a media service provider
established in another member state that directs
all or most of its activity to the territory of the
first member state
• Conditions
- The receiving member state asks the member
state in which the media service provider is
established to take measures
- The latter member state does not take such
measures
- The first member state notifies the Commission
and the member state in which the media
service provider is established of its intention to
take such measures
- The Commission decides that the measures are
compatible with Community law
d.2. Precision of the rules on the determination
of the Member state competent for the extra
community channels
A media service provider shall be deemed to be
under the jurisdiction of a Member State in the
following cases:
- they use a satellite up-link situated in that
Member State
- although they do not use a satellite up link
situated in a Member state, they use a
satellite capacity appartaining to that Member
State
B. New advertising rules
1. Introduction
•
Simplification and liberalization of the rules on
inserting advertising in TV programmes and on
new advertising techniques
•
Aim ?
Stimulate competition
Widen consumer choice
Promote economic growth
2. Qualitative Rules in force
Framework of advertising’s broadcasting :
- Television advertising has to be readily
recognizable as such
- Isolated advertising “exceptionally” authorized
- Banning of subliminal techniques.
- Banning of surreptitious advertising
Banning of advertising for :
- tobacco
- medicinal products and medical treatment
Advertising on alcohol authorized in specific conditions
Rules concerning the protection of children under 18
Minors protection : specific rules in force
• Advertising must not cause moral or physical
detriment to minors;
• Advertising may not directly exhort minors to buy a
product or service by exploiting their inexperience
or credulty;
• Advertising may not directly encourage minors to
persuade their parents or others to purchase the
goods or services being advertised;
• Advertising may not exploit the special trust minors
place in parents, teachers or other persons;
• Advertising may not unreasonably show minors in
dangerous situations
3. Qualitative rules : latest discussions
•
Broad consensus : no additional bans on alcohol,
food, etc…
•
BUT suggestion by the Parliament (Amendments 114
and 225) accepted in the amended proposal :
adoption of a « code of conduct » by the service
providers regarding children’s programming
containing or being interrupted by advertising,
sponsorship or any marketing of unhealthy and
inappropriate foods and drinks such as those high in
fat, sugar and salt of alcoholic beverages
4.
Quantitative rules : latest
discussions
a. Insertions of advertising and interruptions
of programmes
a.1. Daily limitation of advertising :
advertising + teleshopping : 20%
advertising alone : 15%
measure supressed in the amended proposal
a.2.Limitation per hour of advertising
advertising + teleshopping : 20%
measure kept as itself in the amended proposal
a.3. General rules on advertising interruptions
- Advertising may be inserted during programmes
in such a way that the integrity and value of the
programme and the right of the rights holders are
not prejudiced
- Modified in the amended proposal :
Member states shall ensure that the intergity of
the programmes and the rights of the right
holders are not prejudiced
General rules on advertising interruptions
• In programmes consisting of autonomous parts, or
in sports programmes and similarly structured events
and performances comprising intervals, advertisements
shall only be inserted between the parts or in intervals
suppressed in the amended proposal
• At least 20 minutes between 2 interruptions
suppressed in the amended proposal
a.4. Specific rules on advertising interruptions
- Rules in force :
rules for films and features films :
Once interruption each 45 minutes during the first 90 minutes
A 3d interruption is allowed if the programme lasts more than
110 minutes
rules for children’s programmes, news and current affairs
programmes, documentaries
No interruption if the programme lasts 30 minutes
At least 20 minutes between 2 interruptions if the programme
lasts more than 30 minutes
- Modifications proposed
No more distinctions between the different
programmes : common rules for all programmes
Proposal of the Commission : interruptions allowed
once for each 35 minutes
Amended proposal : Once for each scheduled period
of at least 30 minutes
b. Product placements
• Definition :
any form of audiovisual commercial communication
consisting in the inclusion of or reference to a product, a
service or a trade mark thereof so that it is featured
within audiovisual media services, normally in return for
payment or for similar consideration
• Proposal of the Commission :
banning of product placement and sponsoring for news,
current affairs programmes, children’s programmes,
documentaries and programmes of advice;
reinforcement of the rules on public’s information and on
identification of the programme
• Parliament amendment 227 (accepted
but reworded in the amended proposal :
- new article for product placements
(different from sponsoring)
- admissibility of the product placements
in cinematographic works, films and
series made for television and sports
broadcasts
- insertion of an obligation to inform the
viewer every 20 minutes during the
programme
C. Promotion of the cultural
diversity in the audiovisual media
1. Linear services
a. Rules in force (not changed in the proposal)
Member states shall ensure that :
- broadcasters reserve for European works a
majority proportion of their transmission time
(article 4 TVSF directive)
- broadcasters reserve at least 10% of their
transmission time and at least 10% of their
programming budget for European works created by
producers who are independent of broadcasters
(article 5 of the TVSF directive)
2. Non linear services
• Proposal of the Commission :
« Member states shall ensure that media service
providers (…) promote, where practicable and
appropriate means, production of and access to
European works (…)» (article 3 f of the AVMS
directive)
• So the directive does not preview any concrete
measure for the european production and its
promotion : article 3 f is exclusively an
incitement
Parliament : amendment 108 : addition of
measure concerning the promotion of
European works for non linear services
Amended proposal : rewording of the amendment
108: addition of the following words:
« Such promotion could relate, inter alia, to
the financial contribution made by such services
to the production and rights acquisition of
European works or to the share and/or
prominence of European works in the catalogues
of programmes proposed by the directive »
IV. Conclusion
Q
UESTIONS
&
c
OMMENTS
Etienne Wery
Partner at Ulys law firm
[email protected]
www.ulys.net