98/560/EC: Council Recommendation of 24 September 1998 on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity
Date: 1998-09-24
Institutions: Council of the European Union
Subjects: European audiovisual area, administrative cooperation, approximation of laws, competitiveness, infancy, information policy

L 270/48

EN

Official Journal of the European Communities

7. 10. 98

II

(Acts whose publication is not obligatory)

COUNCIL

COUNCIL RECOMMENDATION

of 24 September 1998

on the development of the competitiveness of the European audiovisual and
information services industry by promoting national frameworks aimed at
achieving a comparable and effective level of protection of minors and human
dignity

(98/560/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 130 thereof,

Having regard to the Commission’s proposal,

Having regard to the opinion of the European Parlia-
ment (1),

Having regard to the opinion of the Economic and Social
Committee (2),

(1) Whereas the Commission adopted the Green Paper
on the protection of minors and human dignity in
audiovisual and information services on 16 October
1996 and the Council received it favourably at its
meeting on 16 December 1996;

(2) Whereas

European

the
and Social Committee (4)

the
and the
the Regions (5) have all adopted

Parliament (3),

Economic
Committee of
opinions on the Green Paper;

(3) Whereas

the

conclusions of

consultation
process were submitted by the Commission to the
Council at its meeting of 30 June 1997 and unan-
imously welcomed;

the

(1) Opinion delivered on 13 May 1998 (not yet published in the

Official Journal).

(2) OJ C 214, 10. 7. 1998, p. 25.
(3) OJ C 339, 10. 11. 1997, p. 420.
(4) OJ C 287, 22. 9. 1997, p. 11.
(5) OJ C 215, 16. 7. 1997, p. 37.

(4) Whereas on 16 October 1996, the Commission
adopted the communication on illegal and harmful
content on the Internet; whereas on 17 February
1997 the Council and the representatives of the
Governments of
the Member States, meeting
within the Council, adopted the resolution on
illegal and harmful content on the Internet (6);
whereas on 24 April 1997 the European Parliament
adopted an opinion on the Commission commun-
ication on illegal and harmful content on the
Internet; whereas this work is continuing in a
manner complementary to the present
recom-
mendation since it deals with all forms of illegal
and harmful content specifically on the Internet;

(5) Whereas the present recommendation addresses, in
particular, issues of protection of minors and of
human dignity in relation to audiovisual and in-
formation services made available to the public,
whatever the means of conveyance (such as broad-
casting, proprietary on-line services or services on
the Internet);

(6) Whereas, in order to promote the competitiveness
of the audiovisual and information services industry
and its adaptation to technological development
and structural changes, the provision of informa-
tion, the raising of awareness and the education of
users are essential; whereas this is also a condition

(6) OJ C 70, 6. 3. 1997, p. 1.

7. 10. 98

EN

Official Journal of the European Communities

L 270/49

of the European citizen’s full participation in the
information society; whereas, therefore, in addition
to measures to protect minors and to combat illegal
content offensive to human dignity,
legal and
responsible use of information and communication
services should be encouraged, through the exer-
cise, inter alia, of parental control measures;

(7) Whereas Directive 97/36/EC of

the European
Parliament and of the Council of 30 June 1997
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 broad-
casting activities (1), and in particular Articles 22,
22a and 22b of Directive 89/552/EEC, lays down a
full range of measures aimed at the protection of
minors with regard to television broadcasting for
the purposes of ensuring the free movement of
television broadcasts;

(8) Whereas the development of audiovisual and in-
formation services is of vital importance for Europe
in view of their significant potential in the fields of
education,
to information and culture,
economic development and job creation;

access

(9) Whereas full achievement of this potential requires
the existence of
and innovative
industry in the Community; whereas it is in the
first instance incumbent on businesses to ensure
and improve
competitiveness with the
support of public authorities where appropriate;

successful

their

a

(10) Whereas the establishment of the climate of con-
fidence needed to achieve the potential of
the
audiovisual and information services industry by
removing obstacles to the development and full
competitiveness of the said industry is promoted by
the protection of certain important general inter-
ests, in particular the protection of minors and of
human dignity;

(11) Whereas the general competitiveness of the Euro-
pean audiovisual and information services industry
will improve through the development of an envir-
favours cooperation between the
onment
enterprises in the sector on matters concerning the
protection of minors and human dignity;

that

(12) Whereas the existence of certain technological
conditions enables a high level of protection of the
abovementioned important general
in
particular the protection of minors and human
dignity, and, consequently, the acceptance by all
users of these services;

interests,

(1) OJ L 202, 30. 7. 1997, p. 60.

(13) Whereas it

is important

therefore to encourage
enterprises to develop a national self-regulatory
framework through cooperation between them and
the other parties concerned; whereas self-regulation
could provide enterprises with the means to adapt
themselves rapidly to the quickening technical
progress and to market globalisation;

(14) Whereas the protection of general interests sought
in this manner must be seen in the context of the
fundamental principles of respect for privacy and
freedom of expression, as enshrined in Articles 8
and 10 of the European Convention for the Protec-
tion of Human Rights and Fundamental Freedoms
and as recognised by Article F(2) of the Treaty on
European Union and by the case-law of the Court
of Justice as general principles of Community law;

(15) Whereas any restriction of these rights and free-
doms must be non-discriminatory, necessary to
achieving the desired objective and strictly propor-
tional with regard to the limitations it imposes;

(16) Whereas

the global nature of communications
networks necessitates an international approach to
the question of
the protection of minors and
human dignity in audiovisual and information
services; whereas, in this context, the development
of a common indicative framework at European
level makes it possible both to promote European
values and make a decisive contribution to the
international debate;

(17) Whereas it is vital to distinguish between questions
relating to illegal content which is offensive to
human dignity and those relating to content that is
legal, but liable to harm minors by impairing their
physical, mental or moral development; whereas
these two types of problem may require a different
approach and different solutions;

(18) Whereas the national laws in which Member States
have laid down rules and principles on the protec-
tion of minors and human dignity reflect cultural
diversity
sensitivities;
whereas, in this regard, particular attention must be
paid to the application of the principle of subsi-
diarity;

and national

and local

(19) Whereas,

in view of the transnational nature of
the effectiveness of
communications networks,
national measures would be
at
strengthened,
Community level, by coordination of national
initiatives, and of the bodies responsible for their
implementation, in accordance with the respective
responsibilities
the parties
concerned and by the development of cooperation
and the sharing of good practices in relevant areas;

and functions of

L 270/50

EN

Official Journal of the European Communities

7. 10. 98

(20) Whereas, as a supplementary measure, and with
full respect for the relevant regulatory frameworks
at national and Community level, greater self-regu-
lation by operators should contribute to the rapid
implementation of concrete solutions to the prob-
lems of
the protection of minors and human
dignity, while maintaining the flexibility needed to
take account of the rapid development of audio-
visual and information services;

(21) Whereas the contribution of the Community, the
aim of which will be to supplement Member States’
measures to protect minors and human dignity in
audiovisual and information services, should be
based on the maximum use of existing instruments;

(22) Whereas there should be close coordination of the
various relevant
initiatives conducted in parallel
with the follow-up to the Green Paper, particularly
the work on the follow-up to the communication
on ‘Illegal and Harmful Content on the Internet',
including the resolution adopted by the Council
and the representatives of the Governments of the
Member States meeting within the Council on 17
February 1997, the 1997 European Parliament res-
reports
olution and the
submitted to the Council on 28 November 1996
and 27 June 1997, work carried out according to
the provisions of Article 22b of Council Directive
89/552/EEC of 3 October 1989 on the coordina-
tion of certain provisions laid down by law, regula-
tion or administrative action in Member States
concerning the pursuit of television broadcasting
activities (1) and the work on cooperation on justice
and home affairs;

two working party

(23) Whereas the implementation of this recommenda-
tion will be closely coordinated with that of any
possible new measure resulting from the work on
the follow-up to the Commission communication
on illegal and harmful content on the Internet,

I. HEREBY RECOMMENDS that the Member States foster
a climate of confidence which will promote the devel-
opment of the audiovisual and information services
industry by:

(1) promoting, as a supplement

to the regulatory
framework, the establishment on a voluntary basis
of national
the protection of
minors and human dignity in audiovisual and
information services through:

frameworks

for

(1) OJ L 298, 17. 10. 1989, p. 23. Directive as amended by
the

the European Parliament and of

Directive 97/36/EC of
Council (OJ L 202, 30. 7. 1997, p. 60).

— the

encouragement,

relevant parties

in accordance with
national traditions and practices, of the partici-
pation of
(such as users,
consumers, businesses and public authorities)
in the definition, implementation and evalu-
ation of national measures in the fields covered
by this recommendation,

— the establishment of a national framework for
self-regulation by operators of on-line services,
taking into account the indicative principles
and methodology described in the Annex,

— cooperation at Community level in developing

comparable assessment methodologies;

(2) encouraging broadcasters in their jurisdiction to
carry out research and to experiment, on a volun-
tary basis, with new means of protecting minors
and informing viewers, as a supplement to the
national and Community regulatory frameworks
governing broadcasting;

(3) taking effective measures, where appropriate and
feasible, to reduce potential obstacles to the devel-
the on-line services industry while
opment of
sustaining the fight against illegal content offen-
sive to human dignity, through:

— the handling of complaints and the transmis-
sion of the necessary information about alleged
illegal content to the relevant authorities at
national level,

— transnational

cooperation

the
complaints-handling structures,
to
strengthen the effectiveness of national meas-
ures;

in order

between

(4) promoting, in order to encourage the take-up of
technological developments and in addition to
and consistent with existing legal and other meas-
ures regarding broadcasting services, and in close
cooperation with the parties concerned:

— action to enable minors to make responsible
use of on-line audiovisual and information
services, notably by improving the level of
awareness
and
teachers of the potential of the new services
and of the means whereby they may be made
safe for minors,

among parents,

educators

identification of, and access

— action to facilitate, where appropriate and
to,
necessary,
for minors,
quality
including through the provision of means of
access
and
public places.

in educational

establishments

and services

content

7. 10. 98

EN

Official Journal of the European Communities

L 270/51

II. RECOMMENDS
concerned:

that

the

industries

and parties

Member States and parties concerned in the
various fields covered by this recommendation;

(1) cooperate, in accordance with national traditions
and practices, with the relevant authorities in
setting up structures representing all the parties
concerned at national level, in order inter alia to
facilitate participation in coordination at European
and international level in the fields covered by this
recommendation;

(2) cooperate in the drawing up of codes of conduct
for the protection of minors and human dignity
applying to the provision of on-line services, inter
alia to create an environment favourable to the
development of new services, taking into account
the principles and the methodology described in
the Annex;

(3) develop and experiment, as regards broadcasting
services, on a voluntary basis, with new means of
protecting minors and informing viewers in order
to encourage innovation while improving such
protection;

(4) develop positive measures

for

including initiatives
to audiovisual

the benefit of
to facilitate their
and information
avoiding potentially harmful

access

minors,
wider
services, while
content;

(5) collaborate in the regular follow-up and evaluation
in

initiatives carried out at national

of
application of this recommendation.

level

(2) encourage cooperation and the sharing of experi-
ence and good practices between the self-regula-
tion structures and complaints-handling structures,
with a view to fostering a climate of confidence by
combating the circulation of illegal content of-
fensive to human dignity in on-line audiovisual
and information services;

(3) promote, with the Member States,

international
cooperation in the various fields covered by this
recommendation, particularly through the sharing
of experience and good practices between opera-
tors
in the
concerned
Community and their partners in other regions of
the world;

parties

other

and

(4) develop,

in cooperation with the competent
national authorities, a methodology for evaluating
the measures taken in pursuance of this recom-
mendation, with particular attention to the evalu-
ation of the added value of the cooperation process
at Community level, and present, two years after
the adoption of this recommendation, an evalu-
ation report on its effect to the European Parlia-
ment and the Council.

III. INVITES the Commission to:

(1) facilitate, where

through existing
appropriate
Community financial instruments, the networking
of the bodies responsible for the definition and
implementation of national self-regulation frame-
works and the sharing of experience and good
practices,
in particular in relation to innovative
approaches, at Community level, between the

Done at Brussels, 24 September 1998.

For the Council

The President

J. FARNLEITNER

L 270/52

EN

Official Journal of the European Communities

7. 10. 98

ANNEX

INDICATIVE GUIDELINES FOR THE IMPLEMENTATION, AT NATIONAL LEVEL, OF A
SELF-REGULATION FRAMEWORK FOR THE PROTECTION OF MINORS AND HUMAN
DIGNITY IN ON-LINE AUDIOVISUAL AND INFORMATION SERVICES

Objective

The purpose of these guidelines is to foster a climate of confidence in the on-line audiovisual and information
services industry by ensuring broad consistency, at Community level, in the development, by the businesses
and other parties concerned, of national self-regulation frameworks for the protection of minors and human
dignity. The services covered by these guidelines are those provided at a distance, by electronic means. They
do not include broadcasting services covered by Council Directive 89/552/EEC or radio broadcasting. The
contents concerned are those which are made available to the public, rather than private correspondence.

This consistency will enhance the effectiveness of the self-regulation process and provide a basis for the
necessary transnational cooperation between the parties concerned.

While taking into account the voluntary nature of the self-regulation process (the primary purpose of which is
to supplement existing legislation) and respecting the differences in approach and varying sensitivities in the
Member States of the Community, these guidelines relate to four key components of a national self-regulation
framework:

— consultation and representativeness of the parties concerned,

— code(s) of conduct,

— national bodies facilitating cooperation at Community level,

— national evaluation of self-regulation frameworks.

1.

CONSULTATION AND REPRESENTATIVENESS OF THE PARTIES CONCERNED

The objective is to ensure that the definition, implementation and evaluation of a national self-
regulation framework benefits from the full participation of the parties concerned, such as the public
authorities, the users, consumers and the businesses which are directly or indirectly involved in the
audiovisual and on-line information services industries. The respective responsibilities and functions of
the parties concerned, both public and private, should be set out clearly.

The voluntary nature of self-regulation means that the acceptance and effectiveness of a national
self-regulation framework depends on the extent to which the parties concerned actively cooperate in
its definition, application and evaluation.

All the parties concerned should also help with longer-term tasks such as the development of common
tools or concepts (for example, on labelling of content) or the planning of ancillary measures (for
example, on information, awareness and education).

2.

CODE(S) OF CONDUCT

2.1. General

The objective is the production, within the national self-regulation framework, of basic rules which are
strictly proportionate to the aims pursued; these rules should be incorporated into a code (or codes) of
conduct covering at least the categories set out at 2.2, to be adopted and implemented voluntarily by
the operators (i.e. primarily the businesses) concerned.

In drawing up these rules, the following should be taken into account:

— the diversity of services and functions performed by the various categories of operator (providers of

network, access, service, content, etc.) and their respective responsibilities,

— the diversity of environments and applications in on-line services (open and closed networks,

applications of varying levels of interactivity).

7. 10. 98

EN

Official Journal of the European Communities

L 270/53

In view of the above, operators may need one or more codes of conduct.

Given such diversity, the proportionality of the rules drawn up should be assessed in the light of:

— the principles of freedom of expression, protection of privacy and free movement of services,

— the principle of technical and economic feasibility, given that the overall objective is to develop the

information society in Europe.

2.2.

The content of the code(s) of conduct

The code (or codes) of conduct should cover the following:

2.2.1. Protection of minors

Objective: to enable minors to make responsible use of on-line services and to avoid them gaining
access, without the consent of their parents or teachers, to legal content which may impair their
physical, mental or moral development. Besides coordinated measures to educate minors and to
improve their awareness, this should cover the establishment of certain standards in the following
fields:

(a) I n f o r m a t i o n t o u s e r s

Objective: within the framework of encouraging responsible use of networks, on-line service
providers should inform users, where possible, of any risks from the content of certain on-line
services and of such appropriate means of protection as are available.

The codes of conduct should address, for example, the issue of basic rules on the nature of the
information to be made available to users, its timing and the form in which it is communicated.
The most appropriate occasions should be chosen to communicate the information (sale of
technical equipment, conclusion of contracts with user, web sites, etc.).

(b) P r e s e n t a t i o n o f

l e g a l c o n t e n t s w h i c h m a y h a r m m i n o r s

Objective: where possible, legal content which may harm minors or affect their physical, mental or
moral development should be presented in such a way as to provide users with basic information
on its potentially harmful effect on minors.

The codes of conduct should therefore address, for example, the issue of basic rules for the
businesses providing on-line services concerned and for users and suppliers of content; the rules
should set out the conditions under which the supply and distribution of content likely to harm
minors should be subject, where possible, to protection measures such as:

— a warning page, visual signal or sound signal,

— descriptive labelling and/or classification of contents,

— systems to check the age of users.

Priority should be given, in this regard, to protection systems applied at the presentation stage to
legal content which is clearly likely to be harmful to minors, such as pornography or violence.

(c) S u p p o r t

f o r p a r e n t a l c o n t r o l

Objective: where possible, parents, teachers and others exercising control in this area should be
assisted by easy-to-use and flexible tools in order to enable, without the former’s educational
choices being compromised, minors under their charge to have access to services, even when
unsupervised.

The codes of conduct should address, for example, the issue of basic rules on the conditions under
which, wherever possible, additional tools or services are supplied to users to facilitate parental
control, including:

— filter software installed and activated by the user,

— filter options activated, at the end-user’s request, by service operators at a higher level (for

example, limiting access to predefined sites or offering general access to services).

L 270/54

EN

Official Journal of the European Communities

7. 10. 98

(d) H a n d l i n g o f c o m p l a i n t s ( ‘ h o t l i n e s ' )

Objective: to promote the effective management of complaints about content which does not
comply with the rules on the protection of minors and/or violates the code of conduct.

The codes of conduct should address, for example, the issue of basic rules on the management of
complaints and encourage operators to provide the management tools and structures needed so that
complaints can be sent and received without difficulties (telephone, e-mail, fax) and to introduce
procedures for dealing with complaints (informing content providers, exchanging information
between operators, responding to complaints, etc.).

2.2.2. Protection of human dignity

Objective: to support effective measures in the fight against illegal content offensive to human dignity.

(a) I n f o r m a t i o n f o r u s e r s

Objective: where possible, users should be clearly informed of the risks inherent in the use of
on-line services as content providers so as to encourage legal and responsible use of networks.

Codes of conduct should address, for example, the issue of basic rules on the nature of information
to be made available, its timing and the form in which it is to be communicated.

(b) H a n d l i n g o f c o m p l a i n t s ( ‘ h o t l i n e s ' )

Objective: to promote the effective handling of complaints about illegal content offensive to human
dignity circulating in audiovisual and on-line services, in accordance with the respective respons-
ibilities and functions of the parties concerned, so as to reduce illegal content and misuse of the
networks.

The codes of conduct should address, for example, the issue of basic rules on the management of
complaints and encourage operators to provide the management tools and structures needed so that
complaints can be sent and received without difficulties (telephone, e-mail, fax) and to introduce
procedures for dealing with complaints (informing content providers, exchanging information
between operators, responding to complaints, etc.).

(c) C o o p e r a t i o n o f o p e r a t o r s w i t h j u d i c i a l a n d p o l i c e a u t h o r i t i e s

Objective: to ensure, in accordance with the responsibilities and functions of the parties concerned
effective cooperation between operators and the judicial and police authorities within Member
States in combating the production and circulation of illegal content offensive to human dignity in
audiovisual and on-line information services.

The codes of conduct should address, for example, the issue of basic rules on cooperation
procedures between operators and the competent public authorities, while respecting the principles
of proportionality and freedom of expression as well as relevant national legal provisions.

2.2.3. Violations of the codes of conduct

Objective: to strengthen the credibility of the code (or codes) of conduct, taking account of its voluntary
nature, by providing for dissuasive measures which are proportionate to the nature of the violations. In
this connection, provision should be made, where appropriate, for appeal and mediation procedures.

Appropriate rules to govern this area should be included in the code of conduct.

3.

NATIONAL BODIES FACILITATING COOPERATION AT COMMUNITY LEVEL

Objective: to facilitate cooperation at Community level (sharing of experience and good practices;
working together) through the networking of the appropriate structures within Member States, con-
sistent with their national functions and responsibilities. Such structures could also allow international
cooperation to be extended.

7. 10. 98

EN

Official Journal of the European Communities

L 270/55

Cooperation at European level means:

— cooperation between the parties concerned:

all the parties involved in the drawing up of the national self-regulation framework are asked to set
up a representative body at national level to facilitate the sharing of experience and good practices
and to work together at Community and international level,
— cooperation between national complaints-handling structures:

to facilitate and develop cooperation at European and international level, the parties involved in an
effective complaint management system are asked to set up a national contact point to strengthen
cooperation in the fight against illegal content, facilitate the sharing of experience and good
practices, and improve legal and responsible use of the networks.

4.

EVALUATION OF SELF-REGULATION FRAMEWORKS

The objective is to provide for regular evaluations of the self-regulation framework at national level, to
interests in question, to measure its success in
assess its effectiveness in protecting the general
achieving its objectives and to adapt it gradually to changes in the market, technology and types of use.

The parties concerned are asked to set up an evaluation system at national level so that they can
monitor the progress made in implementing the self-regulation framework. This should take into
account appropriate European-level cooperation, inter alia on the development of comparable assess-
ment methodologies.