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Title: The revision of theTelevision without frontiers directive : Broad overview

1
The revision of theTelevision without frontiers
directive Broad overview

Etienne Wery
Partner at Ulys Law Firm (Brussels-Paris)
www.ulys.net
Etienne.wery_at_ulys.net

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

3
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

5
II. Calendar

13 December 2005 Proposal of the Commission
13 November 2006 General approach of the
Council
13 december 2006 Parliament adoption of the
1st reading of the Hieronymi report
12 february 2007 Informal council prepared the
ground for adoption of a common position
on the directive on 24 May 2007
29 March 2007 Commission adoption of an
amended proposal

6
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

7
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

8
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

10
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

11
(No Transcript)
12
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)

14
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

16
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

18
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

19
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

20
2. Qualitative Rules in force

Framework of advertisings 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 childrens 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

23
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

25
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

26
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 childrens 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, childrens
programmes, documentaries and programmes of
advice
reinforcement of the rules on publics
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

30
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)

31
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