EN Official Journal of the European Union C 318/202

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities

COM(2005) 646 final — 2005/0260 (COD)

(2006/C 318/33)

On 7 February 2006, the Council decided to consult the European Economic and Social Committee, under Articles 47(2) and 55 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for the Committee's work on the subject, adopted its opinion on 18 July 2006. The rapporteur was Mr Hernández Bataller.

At its 429th plenary session, held on 13 and 14 September 2006 (meeting of 14 September), the European Economic and Social Committee adopted the following opinion by 53 votes to seven, with ten abstentions.

1. Introduction

1.1 On 13 December 2005, the European Commission presented a proposal intended to update the Community Directive on Television without Frontiers, the first version of which dates from 1989 (1) and was amended in 1997 (2). The provisions of this Directive are to prevail in the event of conflict with general regulations on service provision, as regards those aspects relating to access to and pursuit of a services activity (3).

1.2 The stated aim of this amendment (provided for in the procedures for monitoring and assessing compliance with the regulation) is to bring the directive into line with the realities of technological convergence. In this new context, audiovisual material and services go far beyond the traditional scope of television broadcasting, creating new regulatory requirements in order to guarantee the smooth running of the single market, the existence of a strong, creative European industry, and citizens' rights. The modernisation of EU rules on audiovisual media content also falls within the i2010 strategy, which aims to build an information society that will boost growth and jobs (4).

1.2.1 In the wake of the Liverpool conference (5) the proposed amendment re-establishes the regulatory scope of the directive (which originally covered all audiovisual services) to cover so-called ‘audiovisual media services’, with different regulatory levels according to whether the service is linear or non-linear. The directive would thus cover the coordination of certain legal, regulatory and administrative provisions relating to the provision of audiovisual media services in Member States, and would be known as the Audiovisual Media Services Directive, rather than the Television without Frontiers Directive.

1.2.2 The directive would continue to exclude private messages, electronic versions of newspapers or magazines, websites not primarily devoted to broadcasting audiovisual material, and radio broadcasts.

1.3 The proposed amendment falls within the scope of the interinstitutional agreement on Better lawmaking, adopted in 2003, with a dual goal: firstly, to simplify, loosen and reduce the regulatory obligations of European audiovisual service providers; secondly, to promote self-regulation and co-regulation in the sector. The proposal also aims to lay down a more basic, fundamental regulatory framework, strengthening the country-of-origin principle after the directive has been incorporated into Member States' legal systems.

2. Commission proposal

2.1 As mentioned, the Commission proposes to extend the scope of the directive to all audiovisual media services (6), which are understood to be moving image services, with or without sound, designed to inform and entertain the public via so-called electronic networks (7).

2.2 These audiovisual media services may be: — linear, when the user must meet the provider's established time constraints for the broadcasting of services, whatever the distribution channel (terrestrial, satellite or cable television, Internet, mobile telephony, etc.); — non-linear, when the user decides when to access the service or specific content made available by the provider.

2.2.1 In accordance with this distinction, television broadcasting is defined as ‘a linear audiovisual media service where a media service provider decides upon the moment in time when a specific programme is transmitted and establishes the programme schedule’. The broadcaster is defined as ‘any provider of linear audiovisual media services’.

2.3 In line with this extended scope, the proposed amendment to the directive introduces the general concept of audiovisual commercial communication, which refers to moving images, with or without sound, which accompany audiovisual media services and are designed to promote, directly or indirectly, the sale of goods or services. Television advertising is understood as forming part of audiovisual commercial communication, when it relates to announcements broadcast on television either to promote the supply of goods or services in return for payment or for similar consideration, or for self-promotional purposes by the broadcaster. The same applies to teleshopping.

2.3.1 The current ban on television advertising and televised sales of cigarettes and other tobacco products is extended to all forms of audiovisual commercial communication. The ban is also upheld on advertising and televised sales of prescription medicine, and the advertising restrictions on alcoholic drinks are maintained in order to prevent the encouragement of immoderate consumption and to protect minors: — it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages; — it shall not link the consumption of alcohol to enhanced physical performance or to driving; — it shall not create the impression that the consumption of alcohol contributes towards social or sexual success; — it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts; — it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; — it shall not place emphasis on high alcoholic content as being a positive quality of the beverages.

2.3.2 The proposal maintains the ban on surreptitious advertising, which is understood to mean ‘the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer or provider when such representation is intended by the broadcaster to serve advertising and might mislead the public’ as to its nature, generally by failing to give identification or warning. In this context, it is established that television advertising must be ‘readily recognisable and kept quite separate from other parts of the programme service by optical and/or acoustic means.’

2.3.3 Nonetheless, a new definition is introduced for product placement, which is distinguished from surreptitious audiovisual commercial communication despite being defined in a similar way: ‘the inclusion of or reference to a product, service or trademark forming part of audiovisual media services, normally in return for payment or for similar consideration’. In order to be lawful, product placement must meet a series of requirements. For instance: — it ‘must not encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services’; — viewers must be clearly informed of the existence of a product placement agreement, and placement must be clearly identified; — audiovisual media services ‘must not contain placement of tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products’; — product placement is banned from news and current affairs programmes, documentaries and audiovisual media services for children.

2.3.4 The proposal maintains the references to sponsorship and the conditions under which it is allowed, with some basic changes to bring the activity into line with the new field of application. The ban is also maintained on the use of subliminal techniques in audiovisual commercial communications.

2.4 With regard to Member States' rights and duties, and in keeping with the current directive, the proposal stipulates that: — Member States must ensure freedom of reception of audiovisual communication media from other Member States; — they must ensure, within the framework of their legislation and by appropriate means, that media service providers under their jurisdiction effectively comply with the directive; — they ‘remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the areas covered by [the] Directive’; — they have the power to ensure that the public can freely access events of high public interest, preventing them from being retransmitted exclusively by broadcasters under their jurisdiction; — they must ensure that broadcasters under their jurisdiction do not transmit cinematographic works outside periods agreed with the rights holders; — they must ensure (whenever possible and, in some cases, in a progressive fashion) that broadcasters reserve a majority proportion of their transmission time for European or related works, and 10 % of this time (or 10 % of their scheduling budget) for European works by producers that are independent from the broadcasters, with a sufficient proportion being reserved for recent works. The time calculated excludes certain content such as news, sports events, games, advertising, teletext services and teleshopping.

2.4.1 It remains possible for a Member State to adopt measures against a media service provider established in another Member State, in order to prevent certain provisions of the directive being breached, as long as the provider directs all or most of its activity to the territory of the first Member State, the Member State in which the provider is based does not take such measures despite having been required to do so, and the Commission's approval is received.

2.4.2 The proposal upholds the quotas set down by the current directive for national and European audiovisual productions and independent audiovisual productions. These quotas have been met satisfactorily in recent years, according to impact assessment reports.

2.4.3 The proposal introduces the following provisions concerning Member States: — they must ensure that broadcasters based in other Member States have access to events of high public interest, transmitted by a broadcaster under the Member State's jurisdiction, in order to produce short news reports with the indication of their source; — they must guarantee easy, direct and permanent access to information on the name, postal and electronic address of the audiovisual media service providers under their jurisdiction, and the competent regulatory authority; — they must guarantee that media service providers under their jurisdiction promote, where practicable and by appropriate means, production of and access to European works; — they must ensure that media service providers under their jurisdiction do not transmit cinematographic works outside periods agreed with the rights holders; — they are expressly asked to encourage co-regulation in the fields coordinated by the directive, so that it may be effectively enforced and accepted by the main stakeholders.

2.5 The proposal reformulates the current directive's provisions on the regulation of the values broadcast by audiovisual media service providers.

2.5.1 The proposal states that these services must not: — seriously impair the physical, mental or moral development of minors; — contain any incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The proposal maintains the current express reference to the non-transmission of programmes that include scenes of pornography or gratuitous violence. Also, for programmes that might impair the physical, mental or moral development of minors, technical coding, watershed or content classification measures must be adopted so as to guarantee that minors in the area of transmission will not hear or see such broadcasts.

2.5.2 Audiovisual commercial communications must not: — include any discrimination on grounds of race, sex, or nationality; — be offensive to religious or political beliefs; — encourage behaviour prejudicial to health or to safety; — encourage behaviour prejudicial to the protection of the environment; — cause moral or physical detriment to minors. Therefore, they must not ‘exhort minors to buy a product or service by exploiting their inexperience or credulity, encourage minors 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’.

2.6 The proposed amendment reduces the legislative requirements for advertising breaks, simplifying and relaxing many of the application criteria.

2.6.1 The exceptional nature of isolated advertising and teleshopping spots is maintained, apart now from in sports programmes. The preference is also maintained for advertising breaks between programmes, although breaks are admitted during programmes provided that the integrity of the programmes and the rights of the right holders are not undermined.

2.6.2 The various criteria for admissible advertising breaks, the spacing between these breaks and exceptions depending on the type of programme are replaced by a general rule, under which the transmission of films made for television, cinematographic works, children's programmes and news programmes may be interrupted by advertising or teleshopping once for each period of 35 minutes. The insertion of advertising during the transmission of religious services remains forbidden.

2.6.3 With regard to the transmission time devoted to advertising in its various forms, the proposal only maintains the general criterion of 20 % per clock hour for advertising, teleshopping and other short promotional formats, and continues to exclude from this calculation ‘announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes,’ and sponsorship, which now also includes product placement.

3. General comments

3.1 The EESC considers it necessary to amend the current Television without Frontiers Directive in order to bring it into line with the new context of technological convergence and the new advertising and promotional practices. It also recognises the need for more applicable, effective legislation that will help to increase trade in audiovisual media services on the European single market, strengthening and boosting its development. However, it feels that the amendment should respond equally to the demands of technological and economic development and to the need to protect human dignity and personal integrity.

3.2 Similarly, it regrets that the Commission has not seized the opportunity to get rid of certain shortcomings and ambiguities in the current directive, which have proved difficult to interpret and apply, and have led to legal insecurity both in the implementation of the directive and in the laws transposing it to the legal systems of the different Member States.

3.2.1 For example, no definition is given of the forms of advertising regulated by the directive, including some of the unlawful practices covered therein. Although this matter will be covered in greater detail in the specific comments below, it is worth pointing out here, by way of example, that in recital 44, telepromotions are excepted from the sphere of advertising; however, at no point in the text are the characteristics and limitations of this form of advertising defined. The EESC does not believe there are any grounds for this omission and that, in any case, telepromotions should be included within the sphere of advertising. Otherwise, this would serve only to penalise advertising and transfer commercial communications to other formats, thus maintaining or even increasing advertising saturation levels.

3.2.2 Moreover, far from promoting legislative harmony between Member States, the combination of increasingly basic regulations and the reinforcement of the country-of-origin principle could cause major legislative differences in this area, particularly as regards advertising and the protection of minors, hindering the development of the single market or substantially reducing consumer protection.

3.3 Although the aim is to clarify the difference between audiovisual media services (which would be regulated by the amended directive) and other audiovisual services (which fall within the general scope of electronic communications regulations), it is likely that the scope of the directive will become harder and harder to define as formats are developed with an increasingly indiscriminate mix of text, sound and images.

3.4 The EESC believes that the amendment to the directive should at least maintain (and, if possible, extend) the guarantees protecting viewers of these audiovisual media services, particularly minors. As pointed out, in addition to the objectives pertaining to the single audiovisual market, the directive must promote a series of social and cultural values relating to diversity, identity, personal development, human dignity (as mentioned in the recitals of the proposal), and the rights to information and freedom of expression, all of which are enshrined in the EU Charter of Fundamental Rights (8). Moreover, the case law of the European Court of Justice (9) considers television operation to be a service of general economic interest.

3.5 The EESC believes that the proposed amendment should go a step further, by proposing specific measures in areas such as pluralism and concentration of the media. When it comes to the promotion of European productions, the EESC would have expected a more decisive stance vis-à-vis the Member States, without making such promotion subject to ‘where practicable’, and vis-à-vis the gradual application, to non-linear services, of the criteria requiring productions to be European and independent, as far as possible.

3.6 As regards the right of reply provided for in the proposal, the Commission has not taken account of the EESC's position (10) on the need to make provision for a ‘right of correction’, with the same general scope and in the same conditions, in order to combat false, incorrect or inaccurate content that affects people's rights.

3.7 The EESC believes that the proposal should make it necessary or mandatory for there to be regulatory authorities in all Member States, displaying not only impartiality and transparency, but also independence from governments in the way they are created, established and exercise their functions. We are convinced that in the future thought will have to be given as to whether a European agency, institution or similar supranational body should be set up.

4. Specific comments

4.1 The EESC believes that the definition of ‘audiovisual commercial communication’ proposed by the Commission is too restrictive, mechanically reproducing the definition of ‘audiovisual media services’. It seems logical to define them as ‘moving images with or without sound’, making moving images a necessary condition for these audiovisual media services, and leaving the Internet-based press and radio broadcasting outside the scope of the directive. However, as the scope has been defined, audiovisual commercial communications linked to audiovisual media services can use static images (e.g. logos or advertising posters) or sounds on their own, without images (e.g. a spoken reference to a brand or an advertising jingle). It would be preferable to define audiovisual commercial communication as ‘images and/or sounds accompanying audiovisual media services designed to promote, whether directly or indirectly, the goods, services or image of a physical or legal person for economic purposes’.

4.2 The proposal maintains the current criterion which considers television advertising as material transmitted in return for payment. The EESC believes that the intention to promote products and services should be established as the defining criterion, rather than payment, as this would be consistent with other Community definitions such as that used in the Misleading Advertising Directive. This would avoid the risk of transmitting advertisements for products banned from being advertised on television or unlawful advertisements, which can currently be screened provided that there is no conclusive demonstration of payment and, therefore, of their nature as a television advertisement. The same should apply to the reference to the payment requirement in the definition of teleshopping.

4.2.1 If the proposed criterion is maintained, the directive should allow Member States to empower courts (in the event of civil or administrative proceedings) to demand that broadcasters prove that no payment has been received for audiovisual communication, as indicated in Directive 84/850/EEC. Otherwise, this communication would be presumed to be commercial in nature.

4.3 The proposal's definition of surreptitious advertising is very similar to the current version. However, the EESC believes that the definition of ‘surreptitious’ should be applied to audiovisual commercial communication overall, and not just to television advertising, given that the provision expressly prohibits surreptitious audiovisual commercial communication.

4.3.1 The EESC also believes that the concept of surreptitious audiovisual commercial communication should be extended beyond that which is currently expressed in the proposal: — it should include presentation or reference to goods and services not just through words or images, but also through sounds (e.g. an advertising jingle associated with a particular brand or product); — with regard to the content of this presentation or reference, it should not just include the name, brand or activities of the provider, but also other distinctive features of the goods or services, if unequivocally related (e.g. a particular type of packaging or a slogan, even when the brand is not mentioned).

4.3.2 Furthermore, it should be clearly stated in the directive that product placement will not be considered as surreptitious audiovisual commercial communication provided that it complies with the legal requirements set down therein.

4.4 The EESC welcomes the express reference to product placement in the proposed amendment to the directive. Although at present any product placement can, theoretically, be considered as surreptitious advertising and therefore prohibited, in practice it has not even tended to be seen as television advertising, thus remaining outside the scope of regulation. However, the EESC believes that the definition of product placement should clearly indicate, as distinguishing features of this practice, intentional promotion by the broadcaster and the failure to warn the public by visual or acoustic means of the promotional nature of this placement for its duration (i.e. simultaneously), as is the case for other formats such as telepromotions.

4.4.1 The text should stipulate that product placement cannot influence scheduling to such an extent that its independence and integrity are affected, in line with the provisions set down for other promotional formats. The relevant restrictions should be extended so that product placement is prohibited not just in the case of advertising bans, programmes aimed at minors or news programmes, but also in the case of advertisements for medicine and, as mentioned below, alcoholic beverages.

4.5 In line with the current directive, the proposal prohibits the use of subliminal techniques in audiovisual commercial communication. However, at no point does the text define these techniques. The EESC believes that the concept should be clearly developed, making reference to the use of visual or acoustic stimuli broadcast at levels that border on the limits of sensory perception and are perceived subconsciously.

4.6 The proposal stipulates that the promotion of products in audiovisual commercial communication can be direct or indirect. In some instances, such as cigarettes and other tobacco products, commercial communication is also prohibited when it is indirect. However, the text gives no definition of this means of audiovisual commercial communication. The EESC believes that the concept should be clearly developed; it should be pointed out that, even when products are not directly presented or referred to, use is made of brands, symbols and other distinctive features of products or companies whose main or known activities include the production or marketing of these products.

4.7 Article 3g(c) of the amended directive sets out the list of values with which audiovisual commercial communications must comply. The list repeats the requirements for advertising and teleshopping stipulated in the current text, but the reference to human dignity has been removed. The EESC believes that, in the light of the European Convention on Human Rights and the EU Charter of Fundamental Rights, this important reference should be maintained.

4.8 The proposal maintains the requirement that Member States take appropriate measures to ensure that audiovisual media services under their jurisdiction are not made available in such a way that might seriously impair the physical, mental or moral development of minors. It also maintains the time constraints that must continue to apply to content that could (even slightly) affect this development, and renews the extensive ban on pornography and gratuitous violence. It would be useful to examine the actual effectiveness of this ban by evaluating the extent to which the directive has been followed since 1989, and to consider whether the ban could be eliminated, basing the protection of minors from violent or pornographic material on the measures (encoding, watershed, warning) that are already included in the text.

4.8.1 The EESC regrets that the Commission's proposal does not include more tutelary protection schemes as have proved effective in some Member States (for example, stepping up the protection of minors from advertising content, or restricting misleading advertising and teleshopping practices).

4.9 When it comes to establishing restrictions for audiovisual media services and related audiovisual commercial communications, the proposal contains some differences which lack justification. With regard to media services, the proposal mentions ‘incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’, and in reference to commercial communications it mentions ‘discrimination on grounds of race, sex, or nationality’. The reference to human dignity has disappeared. In relation to audiovisual media services, the proposal mentions the serious impairment of ‘the physical, mental or moral development of minors’; for audiovisual commercial communications, this is limited to ‘moral or physical’ detriment to minors. There is no ban on these communications encouraging or promoting violent and antisocial behaviour or cruelty to animals. The EESC believes that these restrictions should be extended as fully as possible to both audiovisual media services and audiovisual commercial communications.

4.10 With regard to the basic information that broadcasters must supply, the EESC believes that, when a regulatory authority exists, they should be expressly required to provide at least their postal and electronic addresses.

4.11 Audiovisual commercial communication for alcoholic beverages is restricted in its target audience (it cannot be aimed at young people) and its content, which must not promote immoderate consumption of such drinks. However, the EESC believes that the serious problems linked with alcohol consumption, particularly among young people, would justify stricter regulation by the Commission. This could be established in line with: — programmes/content (e.g. not just for programmes aimed specifically at young people, but also sports); — broadcasting schedules in the case of linear services (e.g. no audiovisual commercial communication relating to these products before 10 p.m.); — the alcohol content of products (e.g. prohibition of audiovisual commercial communications for alcoholic beverages of 18o vol. or above); — the concentration of advertisements in slots, in the case of television advertising (e.g. no more than one per advertising break/advertiser/programme); — the promotional and advertising format adopted (e.g. prohibition of product placement and sponsorship by manufacturers of alcoholic beverages or, at least, the application of scheduling restrictions as indicated above).

4.12 For example, it should mention the possibility of seeking injunctions on the grounds of infringement of the provisions of the directive (in accordance with Directive 98/27/EC) which, despite being mentioned in other relevant legislation such as Directive 2005/29/EC on Unfair commercial practices, is not even mentioned in the recitals of the proposal.

4.13 The proposal should increase the duties of the Contact Committee, in areas such as: — establishment of common rules for identifying the regulatory body responsible for audiovisual media services; — establishment of common rules for informing viewers of the existence of product placement and sponsorship; — establishment of common rules for developing self-regulation and co-regulation schemes; — establishment of common rules for transmission by other broadcasters of events or summaries thereof, which are of general interest; — establishment of common rules to enable citizens to exercise their right of reply and correction. Consumers' and viewers' organisations should be recognised as having an active role in both self-regulation and co-regulation (11).

4.14 The proposal should require all Member States to set up regulatory authorities with powers in the fields covered by the directive, establishing their independence, impartiality and transparency in their membership and the implementation of their duties, under the criteria of Recommendation 23(2000) of the Council of Europe.

4.15 Lastly, it would be advisable for the proposal to include measures to promote the accessibility of digital television and its interactive content to people with disabilities, thus harnessing the potential brought by technological convergence.

Brussels, 14 September 2006. The President of the European Economic and Social Committee Anne-Marie SIGMUND

(1) Directive 89/552/EEC — OJ L 298, 17.10.1989, p. 23.

(2) Directive 97/36/EC — OJ L 202, 30.7.1997, p. 60.

(3) COM (2006) 160 final.

(4) See IP/05/643.

(5) Liverpool Audiovisual Conference on the Television without Frontiers Directive, organised by the Commission.

(6) See the definition of these services in Articles 49 and 50 of the Treaty.

(7) See the definition of these networks in Article 2(a) of Framework Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services. OJ L 108 of 24.4.2002, p. 33.

(8) OJ C 364 of 2000.

(9) Judgment of 30 April 1974 in case C-15/73, ECR 203 et seq. Judgment of the Court of First Instance of 10 July 1991 in case T-69/89, ECR II-525. Judgment of the Court of First Instance of 18 September 2001 in case T-112/99, ECR II-2549 et seq.

(10) OJ C 221 of 8.9.2005, p. 17 (Rapporteur: Mr Pegado Liz).

(11) Information report on the Current state of co-regulation and self-regulation in the Single Market (Rapporteur: Mr Vever).