WRITTEN QUESTION P-2792/96 by David Hallam (PSE) to the Commission (14 October 1996)

Subject: Transfrontier transmission of hard-core pornographic material across the European Union

In a clarification of 19 January 1993, (RC Press Release IP(93)33) the European Commission stated that 'any Member State does have the possibility of acting against channels that might infringe Article 22 of the Directive whether the broadcaster in question comes under its jurisdiction or not'. What steps can official bodies, such as the Independent Television Commission in the United Kingdom take, to regulate the transmission of hard-core pornography from one Member State into another?

Will there be any Commission proposals forthcoming, to enshrine in legislation that the country or countries receiving hard-core pornographic transmissions rather than the country or countries transmitting them should have responsibility for granting or refusing licences?

To what extent does European law regulate the transfrontier transmission of hard-core pornographic material across the European Union, to persons having no subscription to it, and not wishing to view it?

Joint answer to Written Questions P-2792/96 and E-2818/96 given by Mr Oreja on behalf of the Commission (29 November 1996)

Television broadcasting is regulated at Community level by Directive 89/552/EEC ((OJ L 298, 17.10.1996. )) of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities.

Article 22 of the Directive provides in its first sentence that Member States shall take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include programmes which might seriously impair the physical, mental or moral development of minors, in particular those that involve pornography or gratuitous violence. The second sentence stipulates that even where a programme is only likely to impair, although not seriously, the development of minors it must be broadcast at a time when they will not usually see it or must be protected by technical means (encryption).

Given the difficulty of imposing precise Europe-wide definitions of what is and what is not acceptable, in cases where a receiving Member State alleges manifest and repeated violation of Article 22, the Directive provides in Article 2 paragraph 2 for a special procedure whereby that Member State may take direct action against the offending broadcasts, even though it does not have jurisdiction over the broadcaster. This procedure has been used three times since the adoption of the Directive in 1989, in each case involving transmissions received, inter alia, in the United Kingdom. In November 1995 the Commission adopted a formal opinion to the effect that the measures taken by the UK in the 'XXXTV' (formerly TV Erotica) case were compatible with Community law.

It follows that there is no need for a change in the system established by Community law. It would not be feasible, either technically or legally, to provide that Member States should grant licences to broadcasters over which they do not have jurisdiction. The receiving Member State already has, under the Directive, effective powers to take action against broadcasters that it considers are infringing Article 22 (e.g. hard-core pornographic broadcasts) and are received in its territory. Moreover, the originating Member State has to ensure that broadcasters under its jurisdiction do not broadcast in breach of Article 22, first sentence. The Commission has started infringement proceedings where it considers that this obligation has not been met.

It should be noted that there are several channels under British jurisdiction which have an Independent TV commission licence and which broadcast to the United Kingdom and other Member States, programmes that are qualified by the British authorities as 'soft' pornography ('Adult channel', 'Fantasy channel', 'Playboy channel'). The Commission will be asking the United Kingdom to confirm the basis on which it considers that these channels do not infringe Article 22.

In addition to the above, the Commission would like to recall that to avoid any misinterpretation it has already suggested clarifying the wording of Article 22 in its proposal for a revised directive put forward in 1995 ((COM(95) 86 final. )). The common position adopted by the Council on 8th July 1996 follows the Commission's proposal. The Parliament, in its second reading under the co-decision procedure which took place on 12 November 1996, follows the same line and, moreover, proposes adding requirements to put in place programme filtering devices ('V-chip').

Finally, the Honourable Member will be aware that the Commission adopted on 16 October 1996 a green paper on the protection of minors and of human dignity in new audiovisual and information services ((COM(96) 483. )) and a communication on illegal and harmful content on Internet ((COM(96) 487. )). The latter document puts forward short-term measures as regards the specific medium of the Internet. The former examines measures, including regulatory and self-regulatory measures, that may be required in the medium to long-term across the whole range of new audiovisual and information services. The issue of jurisdiction in cases of computer crime is also being studied by a team of consultants who will be producing preliminary findings shortly (Comcrime study). This would be applicable to cases of pornography transmitted across computer networks.