prop · GX03115 · 2010-03-23 00:00:00 — If the Commission decides that the measures are incompatible with Community law, the in question shall refrain from taking the proposed measures. 6.Member States shall, by appropriate means, ensure, within the framework of their legislation, that media service providers under their jurisdiction effectively comply with the provisions of this Directive. 7.Member States shall encourage co- and/or self-regulatory regimes at national level in the fields coordinated by this Directive to the extent permitted by their legal systems. These regimes shall be such that they are broadly accepted by the main stakeholders in the Member States concerned and provide for effective enforcement. 8.Directive 2000/31/EC shall apply unless otherwise provided for in this Directive. In the event of a conflict between a provision of 1989L0552 EN 19.12.2007 002.001 11 Directive 2000/31/EC and a provision of this Directive, the provisions of this Directive shall prevail, unless otherwise provided for in this Directive. Provisions applicable to all audiovisual media services Member States shall ensure that audiovisual media service providers under their jurisdiction shall make easily, directly and permanently accessible to the recipients of a service at least the following infor- mation: (a)the name of the media service provider; (b)the geographical address at which the media service provider is established; (c)the details of the media service provider, including his electronic mail address or website, which allow him to be contacted rapidly in a direct and effective ; (d)where applicable, the competent regulatory or supervisory bodies. Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their juris- diction do not contain any incitement to hatred based on race, sex, religion or nationality. Member States shall encourage media service providers under their jurisdiction to ensure that their services are gradually made accessible to people with a visual or hearing disability. Member States shall ensure that media service providers under their jurisdiction do not transmit cinematographic works outside periods agreed with the rights holders. Member States shall ensure that audiovisual commercial commu- nications provided by media service providers under their jurisdiction comply with the following requirements: (a)audiovisual commercial communications shall be readily recog- nisable as such. Surreptitious audiovisual commercial communi- cation shall be prohibited; (b)audiovisual commercial communications shall not use subliminal techniques; (c)audiovisual commercial communications shall not: (i)prejudice respect for human dignity; (ii)include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation; 1989L0552 EN 19.12.2007 002.001 12 (iii)encourage behaviour prejudicial to health or safety; (iv)encourage behaviour grossly prejudicial to the protection of the environment; (d)all forms of audiovisual commercial communications for cigarettes and other tobacco products shall be prohibited; (e)audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages; (f)audiovisual commercial communication for medicinal products and treatment available only on prescription in the within whose jurisdiction the media service provider falls shall be prohibited; (g)audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audio- visual commercial communication, accompanying or included in children's programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. 1.Audiovisual media services or programmes that are sponsored shall meet the following requirements: (a)their content and, in the case of television broadcasting, their sche- duling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider; (b)they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services; (c)viewers shall be clearly informed of the existence of a sponsorship agreement. Sponsored programmes shall be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in a appropriate way for programmes at the beginning, during and/or the end of the programmes. 2.Audiovisual media services or programmes shall not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products. 3.The sponsorship of audiovisual media services or programmes by undertakings whose activities include the manufacture or sale of medicinal products and treatment may promote the name or the image of the undertaking, but shall not promote specific medicinal products or treatments available only on prescription in the within whose jurisdiction the media service provider falls. 4.News and current affairs programmes shall not be sponsored. Member States may choose to prohibit the showing of a sponsorship logo during children's programmes, documentaries and religious programmes. 1989L0552 EN 19.12.2007 002.001 13 1.Product placement shall be prohibited. 2.By way of derogation from paragraph 1, product placement shall be admissible unless a decides otherwise: in cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes, or where there is no payment but only the provision of certain goods or services free of charge, such as production props and prizes, with a view to their inclusion in a programme. The derogation provided for in the first indent shall not apply to children's programmes. Programmes that contain product placement shall meet at least all of the following requirements: (a)their content and, in the case of television broadcasting, their sche- duling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider; (b)they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services; (c)they shall not give undue prominence to the product in question; (d)viewers shall be clearly informed of the existence of product placement. Programmes containing product placement shall be appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer. By way of exception, Member States may choose to waive the requirements set out in point (d) provided that the programme in question has neither been produced nor commissioned by the media service provider itself or a company affiliated to the media service provider. 3.In any event programmes shall not contain product placement of: tobacco products or cigarettes or product placement from under- takings whose principal activity is the manufacture or sale of cigarettes and other tobacco products, or specific medicinal products or treatments available only on prescription in the within whose jurisdiction the media service provider falls. The provisions of paragraphs 1, 2 and 3 shall apply only to programmes produced after . Provisions applicable only to on-demand audiovisual media services Member States shall take appropriate measures to ensure that on- demand audiovisual media services provided by media service providers under their jurisdiction which might seriously impair the physical, mental or moral development of minors are only made available in such a way that ensures that minors will not normally hear or see such on-demand audiovisual media services. 1989L0552 EN 19.12.2007 002.001 14 1.Member States shall ensure that on-demand audiovisual media services provided by media service providers under their jurisdiction promote, where practicable and by appropriate means, the production of and access to European works. 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 catalogue of programmes offered by the on-demand audiovisual media service. 2.Member States shall report to the Commission no later than and every four years thereafter on the implementation of paragraph 1. 3.The Commission shall, on the basis of the information provided by Member States and of an independent study, report to Parliament and application of paragraph 1, taking into account the market and technological developments and the objective of cultural diversity. Provisions concerning exclusive rights and short news reports in television broadcasting 1.Each may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that as being of major importance for society in such a way as to deprive a substantial proportion of the public in that of the possibility of following such events by live coverage or deferred coverage on free television. If it does so, the concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. It shall do so in a clear and transparent in due time. In so doing the concerned shall also determine whether these events should be available by whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage. 2.Member States shall immediately notify to the Commission any measures taken or to be taken pursuant to paragraph 1. Within a period of three months from the notification, the Commission shall verify that such measures are compatible with Community law and communicate them to the other Member States. It shall seek the opinion of the contact committee established pursuant to Article 23a. It shall forthwith publish the measures taken in the and at least once a year the consolidated list of the measures taken by Member States. 3.Member States shall ensure, by appropriate means within the framework of their legislation, that broadcasters under their jurisdiction do not exercise the exclusive rights purchased by those broadcasters following the date of publication of this Directive in such a way that a substantial proportion of the public in another is deprived of the possibility of following events which are designated by that other in accordance with paragraphs 1 and 2 by 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 in accordance with paragraph 1. 1989L0552 EN 19.12.2007 002.001 15 1.Member States shall ensure that for the purpose of short news reports, any broadcaster established in the Community has access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted on an exclusive basis by a broad- caster under their jurisdiction. 2.If another broadcaster established in the same as the broadcaster seeking access has acquired exclusive rights to the event of high interest to the public, access shall be sought from that broadcaster. 3.Member States shall ensure that such access is guaranteed by allowing broadcasters to freely choose short extracts from the trans- mitting broadcaster's signal with, unless impossible for reasons of prac- ticality, at least the identification of their source. 4.As an alternative to paragraph 3, Member States may establish an equivalent system which achieves access on a fair, reasonable and non- discriminatory basis through other means. 5.Short extracts shall be used solely for general news programmes and may be used in on-demand audiovisual media services only if the same programme is offered on a deferred basis by the same media service provider. 6.Without prejudice to paragraphs 1 to 5, Member States shall ensure, in accordance with their legal systems and practices, that the modalities and conditions regarding the provision of such short extracts are defined, in particular, any compensation arrangements, the maximum length of short extracts and time limits regarding their trans- mission. Where compensation is provided for, it shall not exceed the additional costs directly incurred in providing access. Promotion of distribution and production of television programmes 1.Member States shall ensure where practicable and by appropriate a majority proportion of time, excluding the time appointed to news, sports events, games, adver- tising M1 , teletext services and teleshopping . 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. Where the proportion laid down in paragraph 1 cannot be attained, it must not be lower than the average for 1988 in the concerned. However, in respect of the Hellenic Republic and the Portuguese Republic, the year 1988 shall be replaced by the year 1990. From 3 October 1991, the Member States shall provide the Commission every two years with a report on the application of this Article and Article 5. That report shall in particular include a statistical statement on the achievement of the proportion referred to in this Article and Article 5 for each of the television programmes falling within the jurisdiction of the concerned, the reasons, in each case, for the failure to attain that proportion and the measures adopted or envisaged in order to achieve it. The Commission shall inform the other Member States and the European Parliament of the reports, which shall be accompanied, 1989L0552 EN 19.12.2007 002.001 16 where appropriate, by an opinion. The Commission shall ensure the application of this Article and Article 5 in accordance with the provisions of the Treaty. The Commission may take account in its opinion, in particular, of progress achieved in relation to previous years, the share of first broadcast works in the programming, the particular circumstances of new television broadcasters and the specific situation of countries with a low audiovisual production capacity or restricted language area. shall review the implementation of this Article on the basis of a report from the Commission accompanied by any proposals for revision that it may deem appropriate no later than the end of the fifth year from the adoption of the Directive. To that end, the Commission report shall, on the basis of the infor- mation provided by Member States under paragraph 3, take account in particular of developments in the Community market and of the inter- national context. Member States shall ensure, where practicable and by appropriate means, that broadcasters reserve at least of their transmission time, excluding the time appointed to news, sports events, games, adver- tising M1 , teletext services and teleshopping , or alternately, at the discretion of the , at least of their programming budget, for European works created by producers who are independent of broadcasters. This proportion, having regard to broadcasters' informa- tional, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria; it must be achieved by earmarking an adequate proportion for recent works, that is to say works transmitted within five years of their production. This Chapter shall not apply to television broadcasts that are intended for local audiences and do not form part of a national network. Television advertising and teleshopping 1.Television advertising and teleshopping shall be readily recog- nisable and distinguishable from editorial content. Without prejudice to the use of new advertising techniques, television advertising and teleshopping shall be kept quite distinct from other parts of the programme by optical and/or acoustic and/or spatial means. Isolated advertising and teleshopping spots, other than in trans- missions of sports events, shall remain the exception. Member States shall ensure, where television advertising or tele- shopping is inserted during programmes, that the integrity of the programmes, taking into account natural breaks in and the duration 1989L0552 EN 19.12.2007 002.001 17 and the nature of the programme, and the rights of the right holders are not prejudiced. The transmission of films made for television (excluding series, serials and documentaries), cinematographic works and news programmes may be interrupted by television advertising and/or tele- shopping once for each scheduled period of at least thirty minutes. The transmission of children's programmes may be interrupted by television advertising and/or teleshopping once for each scheduled period of at least 30 minutes, provided that the scheduled duration of the programme is greater than 30 minutes. No television advertising or teleshopping shall be inserted during religious services. Teleshopping for medicinal products which are subject to a marketing authorization within the meaning of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (1), as well as teleshopping for treatment, shall be prohibited. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria: (a)it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages; (b)it shall not link the consumption of alcohol to enhanced physical performance or to driving; (c)it shall not create the impression that the consumption of alcohol contributes towards social or sexual success; (d)it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts; (e)it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; (f)it shall not place emphasis on high alcoholic content as being a positive quality of the beverages. 1.The proportion of television advertising spots and teleshopping spots within a given clock hour shall not exceed . 2.Paragraph 1 shall not apply to announcements made by the broad- caster in connection with its own programmes and ancillary products (1) OJ No 22, , p. Directive as last amended by Directive 93/39/ EEC (OJ No L 214, 24.8.1993, p. 1989L0552 EN 19.12.2007 002.001 18 directly derived from those programmes, sponsorship announcements and product placements. Teleshopping windows shall be clearly identified as such by optical and acoustic means and shall be of a minimum uninterrupted duration of 15 minutes. The provisions of this Directive shall apply mutatis mutandis to tele- vision channels exclusively devoted to advertising and teleshopping as well as to television channels exclusively devoted to self-promotion. Chapter III as well as Article 11 and Article 18 shall not apply to these channels. Without prejudice to Article 3, Member States may, with due regard for Community law, lay down conditions other than those laid down in Article 11(2) and Article 18 in respect of television broadcasts intended solely for the national territory which cannot be received directly or indirectly by the public in one or more other Member States. Protection of minors in television broadcasting 1.Member States shall take appropriate measures to ensure that tele- vision 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. 2.The measures provided for in paragraph 1 shall also extend to 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. 3.Furthermore, when such programmes are broadcast in unencoded form Member States shall ensure that they are preceded by an acoustic warning or are identified by the presence of a visual symbol throughout their duration. 1989L0552 EN 19.12.2007 002.001 19 of reply in television broadcasting Without prejudice to other provisions adopted by the Member States under civil, administrative or criminal law, any natural or legal person, regardless of nationality, whose legitimate interests, in particular reputation and good name, have been damaged by an assertion of incorrect facts in a television programme must have a right of reply or equivalent remedies. Member States shall ensure that the actual exercise of the right of reply or equivalent remedies is not hindered by the imposition of unreasonable terms or conditions. The reply shall be transmitted within a reasonable time subsequent to the request being substantiated and at a time and in a appropriate to the broadcast to which the request refers. 2.A right of reply or equivalent remedies shall exist in relation to all broadcasters under the jurisdiction of a . 3.Member States shall adopt the measures needed to establish the right of reply or the equivalent remedies and shall determine the procedure to be followed for the exercise thereof. In particular, they shall ensure that a sufficient time span is allowed and that the procedures are such that the right or equivalent remedies can be exercised appropriately by natural or legal persons resident or estab- in other Member States. 4.An application for exercise of the right of reply or the equivalent remedies may be rejected if such a reply is not justified according to the conditions laid down in paragraph 1, would involve a punishable act, would render the broadcaster liable to civil law proceedings or would transgress standards of public decency. 5.Provision shall be made for procedures whereby disputes as to the exercise of the right of reply or the equivalent remedies can be subject to judicial review. 1.A contact committee shall be set up under the aegis of the Commission. It shall be composed of representatives of the competent authorities of the Member States. It shall be chaired by a representative of the Commission and meet either on his initiative or at the request of the delegation of a . 2.The tasks of this committee shall be: (a)to facilitate effective implementation of this Directive through regular consultation on any practical problems arising from its appli- cation, and particularly from the application of Article 2, as well as on any other matters on which exchanges of views are deemed useful;