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COMMON POSITION (EC) No 24/2006

adopted by the Council on 18 September 2006

with a view to the adoption of Recommendation 2006/.../EC of the European Parliament and of the Council of ... on the protection of minors and human dignity and on the right of reply in relation to the competitiveness of the European audiovisual and on-line information services industry

(2006/C 295 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 157 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure referred to in Article 251 of the Treaty (2),

Whereas:

HEREBY RECOMMEND THAT:

I.   The Member States, in the interests of promoting the development of the audiovisual and on-line information services industry, take the necessary measures to ensure the protection of minors and human dignity in all audiovisual and on-line information services by:

II.   The audiovisual and on-line information services industry and other parties concerned:

TAKE NOTE THAT THE COMMISSION:

Done at ..., on ...

For the European Parliament

The President

...

For the Council

The President

...

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(1)OJ C 221, 8.9.2005, p. 87.

(2)  Opinion of the European Parliament of 7 September 2005 (OJ C 193 E, 17.8.2006, p. 217), Council Common Position of 18 September 2006 and Position of the European Parliament of ... (not yet published in the Official Journal).

(3)OJ C 364, 18.12.2000, p. 1.

(4)OJ L 270, 7.10.1998, p. 48.

(5)OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).

(6)  Decision No 276/1999/EC of the European Parliament and of the Council of 25 January 1999 adopting a multiannual Community action plan on promoting safer use of the Internet by combating illegal and harmful content on global networks (OJ L 33, 6.2.1999, p. 1). Decision as last amended by Decision No 787/2004/EC (OJ L 138, 30.4.2004, p. 12).

(7)  Decision No 1151/2003/EC of the European Parliament and of the Council of 16 June 2003 amending Decision No 276/1999/EC adopting a multiannual Community action plan on promoting safer use of the Internet by combating illegal and harmful content on global networks (OJ L 162, 1.7.2003, p. 1).

(8)OJ L 178, 17.7.2000, p. 1.

(9)OJ L 202, 30.7.1997, p. 60.

(10)OJ C 296, 10.11.1995, p. 15.

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ANNEX I

INDICATIVE GUIDELINES FOR THE IMPLEMENTATION, AT NATIONAL LEVEL, OF MEASURES IN DOMESTIC LAW OR PRACTICE SO AS TO ENSURE THE RIGHT OF REPLY OR EQUIVALENT REMEDIES IN RELATION TO ON-LINE MEDIA

Objective: introducing measures in the domestic law or practice of the Member States in order to ensure the right of reply or equivalent remedies in relation to on-line media, with due regard for their domestic and constitutional provisions and without prejudice to the possibility of adjusting its exercise to the particularities of each type of medium.

The term ‘medium’ refers to any means of communication for dissemination to the public of edited information on-line such as newspapers, periodicals, radio, television and Internet-based news services.

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, but not limited to, reputation and good name, have been affected by an assertion of facts in a publication or transmission should have the right of reply or equivalent remedies. Member States should 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 right of reply or equivalent remedies should exist in relation to on-line media under the jurisdiction of a Member State.

Member States should adopt the measures needed to establish the right of reply or equivalent remedies and should determine the procedure to be followed for the exercise thereof. In particular, they should ensure that a sufficient time span is allowed and that the procedures are such that the right of reply or equivalent remedies can be exercised appropriately by natural or legal persons resident or established in other Member States.

The right of reply can be ensured not only through legislation, but also through co-regulatory or self-regulatory measures.

The right of reply is a particularly appropriate remedy in the on-line environment because it allows for an instant response to contested information and it is technically easy to attach the replies from the persons affected. However, the reply should be within a reasonable time after the request has been substantiated and at a time and in a manner appropriate to the publication or transmission to which the request refers.

Provision should be made for procedures whereby disputes as to the exercise of the right of reply or the equivalent remedies could be subject to review by the courts or similar independent bodies.

An application for exercise of right of reply or the equivalent remedies may be rejected if the claimant does not have a legitimate interest in the publication of such a reply, or if the reply would involve a punishable act, would render the content provider liable to civil law proceedings or would transgress standards of public decency.

The right of reply is without prejudice to other remedies available to persons whose right to dignity, honour, reputation or privacy have been breached by the media.

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ANNEX II

Examples of possible actions concerning media literacy:

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ANNEX III

Examples of possible actions by the industries and the parties concerned for the benefit of minors:

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

II.   OBJECTIVE

The proposal follows up on Council Recommendation 98/560/EC of 24 September1998 (1), the first legal instrument at EU level which addresses issues of protection of minors and human dignity in relation to audiovisual and information services.

The proposed Recommendation calls on the Member States, industry and interested parties and the Commission to enhance the protection of minors and to respect human dignity in both the broadcasting sector and on the internet. It proposes that Member States consider the introduction of measures concerning the right of reply in relation to on-line media. The following issues are addressed by the draft Recommendation:

III.   ANALYSIS OF THE COMMON POSITION

1.   General comments

The Council's common position retains the main elements of the Commission's original proposal. The main changes introduced by the Council aim to further refine the scope of the Recommendation. The Council has thus specified that the Recommendation covers ‘audiovisual and online information services’ rather than ‘audiovisual and information services’, and has differentiated the scope of the right of reply, which applies to online media, from the wider scope of the part of the Recommendation dealing with the protection of minors.

2.   European Parliament amendments

The Council has sought in its common position to take account of the European Parliament's concerns and priorities and was able to accept most of Parliament's amendments.

The Council accepted in full, in part or in principle, as did the Commission in its amended proposal, amendments 1, 2, 4, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 33, 35, 36, 37 and 38.

The Council wishes to make the following comments on those amendments where its position slightly diverges from the Commission's modified proposal.

Regarding amendments 23 and 29, the Council has followed the approach taken by the Commission, i.e. some parts of the respective amendments were transferred — in the form of examples of possible actions to be taken in order to achieve the stated aims of the Recommendation — to annexes. It has, however, reinserted some elements considered important by the European Parliament in the body of the Recommendation, in order to further approximate positions with Parliament.

Likewise, whilst trying to avoid the introduction of a burdensome reporting obligation, the Council was able to accept the spirit of amendments 35 and 36, to meet Parliament's concerns that follow-up be ensured.

The Council was unable to accept the part of amendment 37 replacing the term ‘indicative guidelines’ by ‘minimum principles’ in the section relating to the right of reply, as this term was considered excessive in the context of a recommendation.

Regarding amendment 26, last indent, the Council took the view that it was preferable not to focus exclusively on the establishment of a single telephone hotline when envisaging the possible means of reporting illegal or suspicious activities on the Internet, and has retained a more open-ended wording.

The Council has followed the line taken by the Commission in its amended proposal and did not include amendments 3, 5, 13, 27, 32 and 34 in its common position.

IV.   CONCLUSION

The Council considers that, as a whole, its common position is fully in line with the objectives of the Commission's amended proposal. The Council also considers that it has taken due account of the objectives pursued by the European Parliament in its amendments to the Commission's proposal and looks forward to an agreement with the Parliament in the near future with a view to the early adoption of the Recommendation.

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(1)OJ L 270, 7.10.1998, p. 48.

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