sou · GTB362d2 · 2006-01-01 00:00:00 — , särskild utredare , utredningssekreterare , expert (ämnesråd, Utbildnings- och ) , expert (chefsjurist, ) Text amended according to the provisions of the Protocol (ETS No. 171) which entered into force, on 1 2002. Protocol Explanatory Report Français The member States of other States party to Cultural Convention, signatory hereto, Considering that the aim of is to achieve a greater unity between its members, for the purpose of safe- guarding and realising the ideals and principles which are their common heritage; Considering that the dignity and equal worth of every human being constitute fundamental elements of those principles; Considering that the freedom of expression and information, as embodied in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes one of the essential principles of a democratic society and one of the basic conditions for its progress and for the development of every human being; Reaffirming their commitment to the principles of the free flow of information and ideas and the independence of broadcasters, which constitute an indispensable basis for their broadcasting policy; Affirming the importance of broadcasting for the development of culture and the free formation of opinions in conditions Bilaga 5 SOU 2005:62 safeguarding pluralism and equality of opportunity among all democratic groups and political parties; Convinced that the continued development of information and communication technology should serve to further the right, regard- less of frontiers, to express, to seek, to receive and to impart information and ideas whatever their source; Being desirous to present an increasing range of choice of programme services for the public, thereby enhancing Europe's heritage and developing its audiovisual creation, and being deter- mined to achieve this cultural objective through efforts to increase the production and circulation of high-quality programmes, there- by responding to the public's expectations in the political, educa- tional and cultural fields; Recognising the need to consolidate the common broad frame- work of regulation; Bearing in mind Resolution No. 2 and the Declaration of the 1st on ; Being desirous to develop the principles embodied in the existing on principles on television advertising, on equality between women and men in the media, on the use of satellite capacity for television and sound radio, and on the promotion of audiovisual production in Europe, agreed as follows: CHAPTER I – GENERAL PROVISIONS Article 1 – Object and purpose This Convention is concerned with programme services embodied in transmissions. The purpose is to facilitate, among the Parties, the transfrontier transmission and the retransmission of television programme services. Article 2 – Terms employed (1) For the purposes of this Convention: "Transmission" means the initial emission by terrestrial transmitter, by cable, or by satellite of whatever nature, in encoded or unencoded form, of television programme services for reception by the general public. It does not include communication services operating on individual demand; "Retransmission" signifies the fact of receiving and simul- taneously transmitting, irrespective of the technical means employed, complete and unchanged television programme services, or important parts of such services, transmitted by broadcasters for reception by the general public; "Broadcaster" means the natural or legal person who has editorial responsibility for the composition of television programme services for reception by the general public and transmits them or has them transmitted, complete and unchanged, by a third party; "Programme service" means all the items within a single service provided by a given broadcaster within the meaning of the preceding paragraph; "European audiovisual works" means creative works, the production or co-production of which is controlled by European natural or legal persons; f."Advertising" means any public announcement in return for payment or similar consideration or for self-promo- tional purposes, which is intended to promote the sale, purchase or rental of a product or service, to advance a cause or idea, or to bring about some other effect desired by the advertiser or the broadcaster itself; "Tele-shopping" means direct offers broadcast to the public with a view to the supply of goods or services, in- cluding immovable property, rights and obligations in return for payment; "Sponsorship" means the participation of a natural or legal person, who is not engaged in broadcasting activities or in the production of audiovisual works, in the direct or indirect financing of a programme with a view to pro- moting the name, trademark, images or activities of that person. Article 3 – Field of application This Convention shall apply to any programme service transmitted or retransmitted by entities or by technical means within the jurisdiction of a Party, whether by cable, terrestrial transmitter or satellite, and which can be received, directly or indirectly, in one or more other Parties. Article 4 – Freedom of reception and retransmission The Parties shall ensure freedom of expression and information in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention. Article 5 – Duties of the transmitting Parties (1) 1Each transmitting Party shall ensure that all programme services transmitted by broadcasters within its jurisdiction comply with the terms of this Convention. 2For the purposes of this Convention, a broadcaster within the jurisdiction of a Party is: -a broadcaster who is deemed to be established in that Party according to paragraph 3; -a broadcaster to whom paragraph 4 applies. 3For the purpose of this Convention, a broadcaster shall be deemed to be established in a Party, hereinafter referred to as "transmitting Party" in the following cases: a.the broadcaster has its head office in that Party and the decisions on programme schedules are taken in that Party; b.if a broadcaster has its head office in one Party but decisions on programme schedules are taken in another Party, it shall be deemed to be established in the Party where a significant part of the workforce involved in the pursuit of the television broadcasting activity operates; if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in each of those Parties, the broadcaster shall be deemed to be established in the Party where it has its head office; if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in neither of those Parties, the broadcaster shall be deemed to be established in the Party where it first began broadcasting in accordance with the system of law of that Party, provided that it maintains a stable and effective link with the economy of that Party; c.if a broadcaster has its head office in a Party but decisions on programme schedules are taken in a State which is not Party to this Convention, or vice-versa, it shall be deemed to be established in the Party concerned, provided that a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in that Party; d.if, when applying the criteria of paragraph 3 of Article 2 of Directive 97/36/EC of Parliament and of 1997 amending Council Directive 89/552/EEC on the co-ordination of certain provisions laid down by law, regulation or administrative action in member States concerning the pursuit of television broadcasting activities, a broadcaster is deemed to be established in a member State of Community, that broadcaster shall also be deemed to be established in that State for the purposes of this Convention. 4 A broadcaster to whom the provisions of paragraph 3 are not applicable is deemed to be within the jurisdiction of a Party, so- called transmitting Party, in the following cases: a.it uses a frequency granted by that Party; b.although it does not use a frequency granted by a Party it does use a satellite capacity appertaining to that Party; c.although it uses neither a frequency granted by a Party nor a satellite capacity appertaining to a Party it does use a satellite up-link situated in that Party. 5If the transmitting Party cannot be determined according to paragraph 4, shall consider this issue according to Article 21, paragraph 1a, of this Convention, in order to determine this Party. 6This Convention shall not apply to television broadcasts intended exclusively for reception in States which are not Party to this Convention, and which are not received directly or indirectly by the public in one or more Parties. Article 6 – Provision of information 1 The responsibilities of the broadcaster shall be clearly and adequately specified in the authorisation issued by, or contract concluded with, the competent authority of each Party, or by any other legal measure. 2 Information about the broadcaster shall be made available, upon request, by the competent authority of transmitting Party. Such information shall include, as a minimum, the name or denomina- tion, seat and status of the broadcaster, the name of the legal representative, the composition of the capital, the nature, purpose and mode of financing of the programme service the broadcaster is providing or intends providing. CHAPTER II – PROGRAMMING MATTERS Article 7 – Responsibilities of the broadcaster 1 All items of programme services, as concerns their presentation and content, shall respect the dignity of the human being and the fundamental rights of others. In particular, they shall not: a.be indecent and in particular contain pornography; b.give undue prominence to violence or be likely to incite to racial hatred. 2All items of programme services which are likely to impair the physical, mental or moral development of children and adolescents shall not be scheduled when, because of the time of transmission and reception, they are likely to watch them. 3The broadcaster shall ensure that news fairly presents facts and events and encourages the free formation of opinions. Article 8 – of reply (1) 1Each transmitting Party shall ensure that every natural or legal person, regardless of nationality or place of , shall have the opportunity to exercise a right of reply or to seek other com- parable legal or administrative remedies relating to programmes trans- mitted by a broadcaster within its jurisdiction, within the meaning of Article 5. In particular, it shall ensure that timing and other arrangements for the exercise of the right of reply are such that this right can be effectively exercised. The effective exercise of this right or other comparable legal or administrative remedies shall be ensured both as regards the timing and the modalities. 2For this purpose, the name of the programme service or of the broadcaster responsible for this programme service shall be identified in the programme service itself, at regular intervals by appropriate means. Article 9 – Access of the public to information (1) Each Party shall examine and, where necessary, take legal measures such as introducing the right to short reporting on events of high interest for the public to avoid the right of the public to informa- tion being undermined due to the exercise by a broadcaster within its jurisdiction of exclusive rights for the transmission or retrans- mission, within the meaning of Article 3, of such an event. Article 9bis – Access of the public to events of major importance (2) 1Each Party retains the right to take measures to ensure that a broadcaster within its jurisdiction does not broadcast on an exclu- sive basis events which are regarded by that Party as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Party of the possibility of follow- ing such events by live coverage or deferred coverage on free tele- vision. If it does so, the Party concerned may have recourse to the drafting of a list of designated events which it considers to be of major importance for society. 2Parties shall ensure by appropriate means, respecting the legal guarantees granted by the Convention for the Protection of Human Rights and Fundamental Freedoms as well as, where appropriate, the national constitution, that a broadcaster within their jurisdiction does not exercise the exclusive rights purchased by that broadcaster following the date of entry into force of the Protocol amending Convention on in such a way that a substantial proportion of the public in another Party is deprived of the possibility of following events which are designated by that other Party, via whole or partial live coverage or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage on free television as determined by that other Party under paragraph 1, respecting the following requirements: a.the Party implementing the legal measures referred to in paragraph 1 shall draw up a list of national or non- national events which are considered by that Party as being of major importance for society; b.the Party shall do so in a clear and transparent in due and effective time; c.the Party shall determine whether these events shall be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage; d.the measures taken by the Party drawing up the list shall be proportionate and as detailed as necessary to enable other Parties to take measures referred to in this paragraph; e.the Party drawing up the list shall notify the list and the corresponding legal measures to , the time limit for which shall be fixed by ; f. the measures taken by the Party drawing up the list shall be within the limitations of the guidelines of referred to in paragraph 3 and must have given a positive opinion on the measures. Measures based on this paragraph shall apply only to those events published by in the annual list referred to in paragraph 3 and to those exclusive rights purchased after the entry into force of the amending Protocol. 3Once a year shall: a.publish a consolidated list of the enlisted events and corresponding legal measures notified by Parties in accordance with paragraph 2e; b.draw up guidelines to be adopted by a majority of three quarters of the members in addition to the requirements listed up in paragraph 2a to e in order to avoid differences between the implementation of this article and that of corresponding European Community provisions. Article 10 – Cultural objectives (1) 1Each transmitting Party shall ensure, where practicable and by appropriate means, that a broadcaster within its jurisdiction reserves for European works a majority proportion of its transmission time, excluding the time appointed to news, sports events, games, advertising, teletext services and tele-shopping. This proportion, having regard to the broadcaster's informational, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria. 2In case of disagreement between a receiving Party and a trans- mitting Party on the application of the preceding paragraph, recourse may be had, at the request of one of the Parties, to with a view to its formulating an advisory opinion on the subject. Such a disagreement shall not be submitted to the arbitration procedure provided for in Article 26. 3The Parties undertake to look together for the most appropriate instruments and procedures to support, without discrimination between broadcasters, the activity and development of European production, particularly in countries with a low audiovisual production capacity or restricted language area. 4The Parties shall ensure that a broadcaster within their jurisdiction does not broadcast cinematographic works outside periods agreed with the rights holders. Article 10bis – Media pluralism (2) The Parties, in the spirit of co-operation and mutual assistance which underlies this Convention, shall endeavour to avoid that programme services transmitted or retransmitted by a broadcaster or any other legal or natural persons within their jurisdiction, within the meaning of Article 3, endanger media pluralism. CHAPTER III – ADVERTISING AND TELE-SHOPPING (3) Article 11 – General standards (1) 1Advertising and tele-shopping shall be fair and honest. 2Advertising and tele-shopping shall not be misleading and shall not prejudice the interests of consumers. 3Advertising and tele-shopping addressed to or using children shall avoid anything likely to harm their interests and shall have regard to their special susceptibilities. 4Tele-shopping shall not exort minors to contract for the sale or rental of goods and services. 5The advertiser shall not exercise any editorial influence over the content of programmes. Article 12 – Duration (1) 1The proportion of tele-shopping spots, advertising spots and other forms of advertising, with the exception of tele-shopping windows within the meaning of paragraph 3, shall not exceed of the daily transmission time. The transmission time for advertising spots shall not exceed of the daily transmission time. 2The proportion of advertising spots and tele-shopping spots within a given clock hour shall not exceed . 3Windows devoted to tele-shopping programmes broadcast within programme services which are not exclusively devoted to tele- shopping shall be of a minimum uninterrupted duration of 15 minutes. The maximum number of windows per day shall be eight. Their overall duration shall not exceed three hours per day. They must be clearly identified by optical and acoustic means. 4For the purposes of this article, advertising shall not include: -announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes; -announcements in the public interest and appeals broadcast free of charge. Article 13 – Form and presentation (1) 1Advertising and tele-shopping shall be clearly distinguishable as such and recognisably separate from the other items of the programme service by optical and/or acoustic means. In principle, advertising and tele-shopping spots shall be transmitted in blocks. 2Advertising and tele-shopping shall not use subliminal techniques. 3Surreptitious advertising and tele-shopping shall not be allowed, in particular the presentation of products or services in programmes when it serves advertising purposes. 4Advertising and tele-shopping shall not feature, visually or orally, persons regularly presenting news and current affairs programmes. Article 14 – Insertion of advertising and tele-shopping (1) 1Advertising and tele-shopping shall be inserted between pro- grammes. Provided the conditions contained in paragraphs 2 to 5 of this article are fulfilled, advertising and tele-shopping spots may also be inserted during programmes in such a way that the integrity and value of the programme and the rights of the rights holders are not prejudiced. 2In programmes consisting of autonomous parts, or in sports programmes and similarly structured events and performances comprising intervals, advertising and tele-shopping spots shall only be inserted between the parts or in the intervals. 3The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light entertain- ment programmes and documentaries), provided their scheduled duration is more than forty-five minutes, may be interrupted once for each complete period of fourty-five minutes. A further inter- ruption is allowed if their scheduled duration is at least twenty minutes longer than two or more complete periods of fourty-five minutes. 4Where programmes, other than those covered by paragraph 2, are interrupted by advertising or tele-shopping spots, a period of at least twenty minutes should elapse between each successive adver- tising or tele-shopping break within the programme. 5Advertising and tele-shopping shall not be inserted in any broad- cast of a religious service. News and current affairs programmes, documentaries, religious programmes, and children's programmes, when their scheduled duration is less than thirty minutes, shall not be interrupted by advertising or tele-shopping. If their scheduled duration is thirty minutes or longer, the provisions of the previous paragraphs shall apply. (3), (1) Article 15 – Advertising and tele-shopping of particular products 1Advertising and tele-shopping for tobacco products shall not be allowed. 2Advertising and tele-shopping for alcoholic beverages of all varieties shall comply with the following rules: a.they shall not be addressed particularly to minors and no one associated with the consumption of alcoholic beverage in advertising or tele-shopping should seem to be a minor; b.they shall not link the consumption of alcohol to physical performance or driving; c.they shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal problems; d.they shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; e.they shall not place undue emphasis on the alcoholic content of beverages. 3Advertising for medicines and treatment which are only available on prescription in the transmitting Party shall not be allowed. 4Advertising for all other medicines and treatment shall be clearly distinguishable as such, honest, truthful and subject to verification and shall comply with the requirement of protection of the individual from harm. 5Tele-shopping for medicines and treatment shall not be allowed. Article 16 – Advertising and tele-shopping directed specifically at a single Party (1) 1 In order to avoid distortions in competition and endangering the television system of a Party, advertising and tele-shopping which are specifically and with some frequency directed to audiences in a single Party other than the transmitting Party shall not circumvent the television advertising and tele-shopping rules in that particular Party. 2 The provisions of the preceding paragraph shall not apply where: a.the rules concerned establish a discrimination between advertising and tele-shopping transmitted by a broad- caster within the jurisdiction of that Party and adver- tising and tele-shopping transmitted by a broadcaster or any other legal or natural person within the jurisdiction of another Party, or b.the Parties concerned have concluded bilateral or multi- lateral agreements in this area. CHAPTER IV – SPONSORSHIP Article 17 – General standards 1When a programme or series of programmes is sponsored in whole or in part, it shall clearly be identified as such by appropriate credits at the beginning and/or end of the programme. 2The content and scheduling of sponsored programmes may in no circumstances be influenced by the sponsor in such a way as to affect the responsibility and editorial independence of the broad- caster in respect of programmes. 3Sponsored programmes shall not encourage the sale, purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services in such programmes. Article 18 – Prohibited sponsorship (1) 1 Programmes may not be sponsored by natural or legal persons whose principal activity is the manufacture or sale of products, or the provision of services, the advertising and tele-shopping of which are prohibited by virtue of Article 15.