EU AUDIOVISUAL REGULATIONTelevision Without Frontiers Directive:

Between Culture and Commerce

Annenberg/Oxford Summer Institute 2006Global Media Policy

Technology and New Themes in Media Regulation

Prof. Dr. Peggy VALCKE18 July 2006

Interdisciplinary Centre for Law & ICT (K.U.Leuven)~ Interdisciplinary Institute for BroadBandTechnology

“Between Culture and Commerce"

AgendaI. TVWF Directive: Context

1. Broadcasting Services and Art. 49 ECT2. TVWF ~ ECTT

II. Analysis of TVWF Directive1. Basic Principle: Home Country Control2. Material Scope3. Jurisdiction4. Illegal and Harmful Content5. Protection of Pluralism6. Commercial Communications7. Miscellaneous

III. Revision of TVWF Directive=> See next presentation by Dr. Monica Ariño

1. Broadcasting Services and Art. 49 ECT

• ECJ: television broadcasts = services in sense of Art. 49 ECT1. Transborder2. Normally provided for remuneration

– Sacchi, case no. 155/73, 30 April 1974

– Bond van Adverteerders, case no. 352/85, 26 April 1988: idem foradvertising

– Debauve, case no. 52/79, 18 March 1980 : idem for cable broadcasts

• Hence: abolition of restrictions to freedom to provide services

Exceptions:1. Public interest objectives: discriminatory restrictions (i.e. on basis of

nationality of provider or origin of broadcasts)

• Art. 46 juncto 55 ECT: public policy, public security or public health

• ! Bond van Adverteerders: economic reasons no public policy reasons

1. Broadcasting Services and Art. 49 ECT

2. ‘Rule of reason’: non-discriminatory restrictions (Van Binsbergen, case no. 33/74, 3 December 1974)

- non-discriminatory (applicable to national and foreign service providers)- overriding reasons relating to the general interest

! policy of cultural diversity and pluralism: yes; economic reasons: no (Collectieve Antennevoorziening Gouda & Commissie tegen Nederland, cases no. C-288/89 & C-353/89, 25 July 1991)

- Proportional: guarantee achievement of intended aim (effective) and not go beyond that which is necessary to achieve it (not possible to achieve sameresult by less restrictive rules)= In absence of harmonisation (relevance limited to domains notharmonised by TVWF Directive) or of system of equivalence (i.e. requirements not yet satisfied by equivalent rules in country of origin)

3. Intellectual property: Art. 30 -> applicable to services (Coditel I, case no. 62/80, 18 March 1980 & Coditel II, case no. 261/81, 6 October1982)

2. TVWF ~ ECTT

Council of Europe: ECTT• European Convention on Transfrontier Television

(1989, ETS no. 132), amending protocol 1998 (ETS no. 171, entry into force 2002)– Art. 9: short reporting– Art. 10bis: media pluralism

¾ Ongoing review • Discussion document on questions concerning the scope of the

Convention, jurisdiction, freedom of reception and retransmission, the duties of the Parties of the Convention, advertising directed at a single Party and the abuse of rights granted by the Convention, 38th meeting of the Standing Committee On Transfrontier Television (Strasbourg, 31 March - 1 April 2005), T-TT(2005)003 http://www.coe.int/T/e/Human_Rights/Media/2_Transfrontier_Television/Texts_and_documents/

2. TVWF ~ ECTT

European Union: TVWF• Directive 89/552/EC of 3 October 1989 on the coordination of

certain provisions laid down by law, regulation or administrativeaction in Member States concerning the pursuit of televisionbroadcasting activities, amended by Directive 97/36/EC of 30 June1997Ö Objectives

• Free movement of broadcasting services within the internal market• Preservation of certain public interest objectives (cultural diversity,

consumer protection, protection of minors)• Promotion of the distribution and production of European audiovisual

programmes

– N.B. Second review process = ongoing (cfr. technological and marketdevelopments: scope, advertising, protection of minors…)

• Communication on the future of European regulatory audiovisual policy(COM(2003)784 final) proposes two step approach: interpretative communication– amending the TVWF Directive

AgendaI. TVWF Directive: Context

1. Broadcasting Services and Art. 49 ECT2. TVWF and ECTT

II. Analysis of TVWF Directive1. General Principle: Home Country Control2. Material Scope3. Jurisdiction4. Illegal and Harmful Content5. Protection of Pluralism6. Commercial Communications7. Miscellaneous

III. Revision of TVWF Directive1. Revision Process2. First Proposals

1. General principle: home country control• Art. 2: Member States shall ensure that all television broadcasts

transmitted by broadcasters under its jurisdiction comply with the rules=> Duty for country of origin to control broadcasters within their

jurisdiction

• Art. 2a: Member States shall ensure freedom of reception and notrestrict retransmission on their territory of TV programmes from otherMS for reasons falling in the areas co-ordinated by TVWF

=> Prohibition for countries of reception to control/restrictbroadcasters from other MS

= no secondary control !– Exceptions:

• Art. 2a, al. 2: suspend exceptionally (under specific conditions)and provisionally retransmission of television programmes whichinfringe provisions on the protection of minors & hate speech

• U-turn (Van Binsbergen, supra & TV 10, Case C-23/93)– Established in A, but directs all or most of activity to B– With view to evading legislation of B

• Art. 3: free to require television broadcasters under their jurisdiction tocomply with more detailed or stricter rules

2. Material Scope• Definition of “television broadcasting” (Art. 1, lit. a)

“the initial transmission by wire or over the air, including thatby satellite, in unencoded or encoded form, of television programmes intended for reception by the public. It includes the communication of programmes between undertakings with a view to their being relayed to the public. It does not includecommunication services providing items of information or other messages on individual demand such as telecopying, electronic data banks and other similar services”

• Definition of “broadcaster” (Art. 1, lit. b)“the natural or legal person who has editorial responsibility forthe composition of schedules of television programmes within the meaning of (a) and who transmits them or has them transmitted by third parties”

<-> information society services

2. Material Scope• ECJ, case no. C-89/04 (Mediakabel); 2 June 2005

– initial transmission of television programmes – intended for reception by the public (i.e. an indeterminate number of

potential television viewers)– to whom the same images are transmitted simultaneously– how images are transmitted is not a determining element– not provided at the individual request of a recipient of services– priority to be given to the standpoint of the service provider– >< Conclusions Advocate General Tizzano: point-to-point versus point-to-

multipoint ?

• <-> Belgian Constitutional Court (decision no. 156/2002 of 6 November 2002; www.arbitrage.be)

“A broadcasting programme is, from the viewpoint of the sender, intended for reception by the public at large or part thereof, and has no confidential character, even when it is transmitted at individual request and irrespective of the technology used for the transmission, including the so-called point-to-point technique that was formerly not applied in a broadcasting environment. Services providing individualised information characterised by a certain level of confidentiality do not fall within the scope of broadcasting”

• Cf. supra Art. 2: “MS shall ensure that all televisionbroadcasts transmitted by broadcasters under itsjurisdiction comply with the rules…”

• TVWF 1989: no express definition, no further criteria

• ECJ, case C-56/96 (VT4; preliminary question)– “ratione personae”

= “establishment”– if established in more than 1 MS -> “centre of its activities”

= where decisions concerning programme policy are taken and where programmes to be broadcast are finally put together

• TVWF 1997: integration of criteria ECJ• location of the head office• and place where editorial decisions about programming

schedules are taken

3. Jurisdiction

?

4. Illegal and Harmful Content

Protection of minorsArt. 22 TVWF Directive

– take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence.

– do not include other programmes which are likely to impair the physical, mental or moral development of minors, except where it is ensured, by selecting the time of the broadcast or by any technical measure, that minors in the area of transmission will not normally hear or see such broadcasts -> if unencoded: acoustic warning or visual symbol

4. Illegal and Harmful Content

Human DignityArt. 22a TVWF Directive• Member States shall ensure that broadcasts do not

contain any incitement to hatred on grounds of race, sex, religion or nationality.

¾ (!) Remember: Art. 2a, al. 2

¾ [N.B. Art. 22b TVWF Directive => Study on Parental Control of Television Broadcasting, March 1999, Oxford University Centre for Socio-Legal Studies; available at:http://europa.eu.int/comm/avpolicy/legis/key_doc/parental_control/index_en.htm]

4. Illegal and Harmful ContentOther measures• Green Paper on the Protection of Minors

– Green Paper on the Protection of Minors and Human Dignity in Audiovisual and Information Services COM (96) 483 final

– Consensus: need for self-regulatory approach supplementing the legal framework, and for international co-operation

• Recommendation on the Protection of Minors and Human Dignity– Recommendation on the development of the competitiveness of

the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity (24 September 1998, 98/560/EC)

– Aim: provide guidelines for national legislation– Evaluation Reports (COM(2001)106 final & COM(2003)776 final)– 30 April 2004: Commission proposal for an additional

recommendation on protection of minors and the right of replySee: http://europa.eu.int/comm/avpolicy/regul/new_srv/pmhd_en.htm

4. Illegal and Harmful ContentOther measures (ctd.)• Action Plan for Safer Use of the Internet

– Commission Communication on Illegal and Harmful Content on the Internet

– Safer Internet Action Plan 1999 – 2002European Parliament and Council, 25 January 1999, Decision n°276/1999/EC adopting a multiannual Community Action Plan on promoting the safer use of the Internet by combating illegal and harmful content on global networks

– Safer Internet Action Plan extension 2003 - 2004– Safer Internet plus 2005 - 2008

Decision No 854/2005/EC of the European Parliament and of the Council of 11 May 2005 establishing a multiannual Community Programme on promoting safer use of the Internet and new online technologies

=> Support for projects in area of:• Hotlines• Self-regulation• Codes of conduct, rating and filtering mechanisms• Awareness campaigns

See: http://europa.eu.int/information_society/activities/sip/programme/decision/index_en.htm

5. Protection of Pluralism

Events list (Art. 3a)

– “do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television”

= cannot “disappear behind decoder”= limits to exclusive broadcasting rights

– Member States can draw up a list of designated events (national or non-national) & notify to Commission; overview:http://www.europa.eu.int/comm/avpolicy/regul/twf/3bis/implement_en.htm)

5. Protection of PluralismCultural quota (Art. 4-6)

- Aim: stimulate European audiovisual sector (economic + cultural: prevent “Dallas”-isation)¾Reserve majority proportion of transmission time* for

“European productions” -> see Art. 6¾Reserve at least 10% of transmission time* (or of

programming budget) for independent Europeanproductions(*) excluding the time appointed to news, sports events, games, advertising, teletext services and teleshopping!Exception for regional televisions (Art. 9)

- Firmly criticised: law of international trade – competence –economic freedoms in EC Treaty (and TVWF Directive) – freespeech

- BUT: very flexible !

6. Commercial CommunicationsDefinitions

• Art. 1, lit. c: ‘television advertising’: any form of announcement broadcast in return for payment or for similar consideration (including self-promotion) by a public or private undertaking in connection with a trade, business, craft or profession to promote the supply of goods or services, including immovable property, rights & obligations

• Art. 1, lit. e: ‘sponsorship’: any contribution by a public or private undertaking not engaged in television broadcasting activities or in the production of audiovisual works, to the financing of television programmes with a view to promoting its name, trade mark, image, activities or products

• Art. 1, lit. f: ‘teleshopping’: direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment.

6. Commercial CommunicationsRestrictions & Conditions

• Art. 10: principle of ‘separation’; prohibition of subliminal techniques and of surreptitious advertising (Art. 1, lit. d: ‘PP’)

• Art. 11: integrity of programmes, insertion ‘between’programmes

• Art. 12: “basic” standards (human dignity…)• Art. 13: prohibition of tobacco advertising and TS• Art. 14: prohibition of adv. and TS for drugs on prescription• Art. 15: rules for adv. and TS for alcohol (public health)• Art. 16: protection of minors [“5 minutes-rule” in Flanders and

Sweden]• Art. 17: sponsoring restrictions• Art. 18 and 18a: limits for volume of adv. and TS (hourly and

daily)

6. Commercial CommunicationsRestrictions & Conditions

• N.B.: other instruments regulating commercial communication (selection):– Harmonisation directives• Directive 84/450/EC of 10.9.1984 concerning misleading advertising,

modified by Directive 97/55/EC of 6.10.1997 on comparative advertising

• Directive 98/43/EC of 6.7.1998 on the approximation of the laws,regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products

• Directive 92/28/EEC of 31.3.1992 concerning advertising for medicines

• Directive 2000/31/EC of 8.6.2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (E-commerce Directive)

6. Commercial CommunicationsNew Advertising Techniques

• Examples:– Split screen techniques– Interactive advertising– Virtual advertising

• Not necessarily incompatible with Directive TVWF• Different treatment by MS’s: due to divergent interpretation

of essential rules of Directive TVWF• C (2004) 1450 - 23.04.2004 - Commission interpretative Communication

on certain Aspects of the Provisions on televised Advertising in the "Television without Frontiers" Directive

6. Commercial CommunicationsNew Advertising Techniques

• Split screen techniques– Simultaneous broadcasting of editorial content and commercial

content ï two distinct images are visible on the screen– TVWF: same treatment as other advertising messages

• Spatial separation between editorial and commercial content ñadvertising should be easily recognizable (Art. 10)

• Insertion of advertising spots: – Art. 11 TVWF applies – In order to protect the audiovisual works: prior and express consent

of rights holders = needed • Duration of advertising spots

– Art. 18 TVWF applies: same hourly and daily limits• Content of advertising spots

– Art. 12 and 16 TVWF (protection of minors & human dignity) apply– Art. 13 to 15 TVWF (restrictions to advertising for certain products)

apply

6. Commercial CommunicationsNew Advertising Techniques

• Interactive advertising– Provided on individual demand Ö information society service– Outside scope of TVWF Directive (Ö E-commerce Directive)– But: initialised from advertising message broadcast in linear way

(inviting user to click on remote control in order to obtain more information) Ö TVWF Directive applies to this message

• Separation of editorial and commercial content ñ invitation to click should be integrated in advertising spot, clearly separated from editorial programmes

• User should not be directly after clicking guided to prohibited advertising or advertising incompatible with Art. 12 to 16 TVWF

• Interactive advertising accessible directly after clicking should fulfil conditions of Art. 15 TVWF (alcoholic beverages) and Art. 16 TVWF (protection of minors)

• User should be warned when leaving the linear environment and entering a commercial interactive environment (e.g. intermediary screen before effective access to the interactive system)

6. Commercial CommunicationsNew Advertising Techniques

• Virtual advertising– Using virtual techniques for inserting advertising

messages, notably during the broadcasting of sport events (e.g. virtual replacement of advertising content on banners existing on the field)

– Not incompatible with TVWF Directive, but should take into account protection of the general interest

• Only virtual advertising on locations where advertising is materially admitted

• Viewers should be informed of the presence of virtual images• Prior consent = needed of

– organiser of the broadcast event– rights holders

7. Miscellaneous

• Art. 7: Copyright• Art. 23: Right of Reply (‘incorrect facts’)• Art. 23a: Contact Committee• Art. 26: Evaluation reports by Commission

AgendaI. TVWF Directive: Context

1. Broadcasting Services and Art. 49 ECT2. TVWF and ECTT

II. Analysis of TVWF Directive1. General Principle: Home Country Control2. Material Scope3. Jurisdiction4. Illegal and Harmful Content5. Protection of Pluralism6. Commercial Communications7. Miscellaneous

III. Revision of TVWF Directive1. Revision Process2. First Proposals

Revision ProcessModernisation of rules:

Towards a modern framework for audiovisual content

• See website DG INFSO, audiovisual policy: http://www.europa.eu.int/comm/avpolicy/regul/regul_en.htm#3– Fourth Communication from the Commission (COM (2002) 778 final)– discussion papers and two series of public hearings in 2003– Communication on the future of European regulatory audiovisual policy

(COM(2003)784 final)– Focus Groups (national experts): September 2004 - February 2005– discussion with MS at seminar in Luxemburg (May 30th/31st 2005)– Issues papers (11 July 2005)– Liverpool Audiovisual Conference (20-22 September 2005)– Beginning of November: Informal text for interservice consultation– End of 2005: Draft legislative proposal to be adopted by the Commission– First half of 2005: discussions in EP and Council

First Proposals

• Lecture by Dr. Monica Ariño

Thank you for your attention!

Questions?Prof. Dr. Peggy Valcke

Lecturer Media and Communications Law at K.U.Leuven, K.U.Brussel and CEU Budapest

Postdoctoral Researcher FWO-Vlaanderen

ICRI (K.U.Leuven) – IBBTTiensestraat 41B-3000 Leuven

Belgium[t] +32 (0)16 325 470[f] +32 (0)16 325 438

[e] peggy.valcke@law.kuleuven.be[w] www.icri.be; www.ibbt.be