The revision of theTelevision without frontiers directive :

Broad overview

Etienne Wery

Partner at Ulys Law Firm (Brussels-Paris)

www.ulys.netEtienne.wery@ulys.net

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 : Proposal of the Commission13 November 2006 : General approach of the

Council13 december 2006 : Parliament : adoption of the

1st reading of the Hieronymi report12 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

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 correspondenceexamples : e-mails

• Excludes services that contain some audiovisual content if this content is ancillary to, and is not the principal purpose of the serviceexamples : 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

• 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

b. Distinction between linear and non linear services

Other services of electronic communications

Services that contain audiovisaul content if this content is not the principal

purpose of the service

Private correspondence Radio

Electronic versions of newspapers or

magazines

Electronic communications

Linear services: televisual broadcasting

Non linear services : On demand services

Audiovisual media services

Pay per view

Classical television SVOD Video on

demand

Scope of the new audiovisual media services directive Exclusion of the scope

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 protectionAppropriate 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 hatredAppropriate 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 advertisingadvertising + 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

• 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

General rules on advertising interruptions

- Rules in force :

rules for films and features films : Once interruption each 45 minutes during the first 90 minutesA 3d interruption is allowed if the programme lasts more than 110 minutes

rules for children’s programmes, news and current affairs programmes, documentariesNo interruption if the programme lasts 30 minutesAt least 20 minutes between 2 interruptions if the programme lasts more than 30 minutes

a.4. Specific rules on advertising interruptions

- 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

& cOMMENTS

QUESTIONS

Etienne WeryPartner at Ulys law firmEtienne.wery@ulys.net

www.ulys.net