The revision of theTelevision without frontiers directive : Broad overview

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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
• Etienne.wery_at_ulys.net

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• 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

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I. Introduction modernisation of the TVSF
directive

• Dubble aims
• - Modernisation taking into account the
  technological progress including the digital
   convergence 
• - Will to  beter regulate 

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• 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

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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

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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

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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 

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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

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• 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

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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

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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

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• 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)

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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

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• 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

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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

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• 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

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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

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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

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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

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• 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

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• 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

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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

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• 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

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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

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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

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• 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

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• 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

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• 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

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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)

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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

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• 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 

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• IV. Conclusion

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Etienne WeryPartner at Ulys law
firmEtienne.wery_at_ulys.netwww.ulys.net