Commission interpretative communication on certain aspects of the provisions on televised advertising in the "Television without frontiers" Directive
Date: 2004-04-28
Institutions: European Commission
Subjects: EC Directive, audiovisual communications policy, broadcasting, television

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Commission interpretative communication on certain aspects of the provisions on televised adver-
tising in the ‘Television without frontiers’ Directive

(2004/C 102/02)

1. INTRODUCTION

This

interpretative

1.
communication concerns Council
Directive 89/552/EEC of 3 October 1989 on the coordination
of certain provisions laid down by law, regulation or adminis-
trative action in Member States concerning the pursuit of
television broadcasting activities (1) as amended by Directive
97/36/EC of the European Parliament and of the Council of
30 June 1997 (hereinafter the ‘television without
frontiers
Directive’ or the ‘Directive’) (2). This Directive establishes the
legal reference framework for the free provision of television
services in the European Union with a view to promoting the
development of a European market in television and related
services,
and audiovisual
programme production.

including television advertising

The Directive coordinates, at Community level, national

2.
legislation in areas such as:

— determination of the law applicable to broadcasters,

— promotion of production and distribution of European

works,

— public access to events of major importance,

— television advertising, teleshopping and sponsorship,

— protection of minors, and

— the right of reply.

the television
3. With regard to television advertising,
frontiers Directive lays down provisions aimed at
without
freedom to produce television
reconciling the principle of
advertising (an important, often vital,
revenue,
source of
particularly for commercial ‘free-to-air’ television broadcasters)
with adequate protection for both audiovisual works and the
general public (seen as both viewers and consumers). Article 3
of the Directive empowers the Member States to lay down
more detailed or stricter rules for broadcasters under their
jurisdiction.

prescription drugs, restrictions on advertising for alcoholic
beverages) (8).

directive

the recent proposal

5.
It should be noted that the provisions on advertising
contained in the misleading advertising Directive (9) also
apply. In the future, the EU consumer protection rules will
also include the provisions of
for a
business-to-consumer
framework
commercial practices. The proposed framework takes a tech-
nology neutral approach and is based on the country of origin
principle, making it compatible with the approach of
the
frontiers Directive. The proposal makes
television without
clear
in case of sector-specific EU rules which also
that
regulate the same area, it is those sector specific rules which
will apply.

unfair

on

6.
This Communication, which follows on from the
Commission's Communication on the future of European regu-
latory audiovisual policy adopted on 15 December 2003 (10),
aims to clarify how the relevant provisions of the Directive
apply to certain forms
commercial
communication which have emerged in parallel with tech-
the
nological
for
Commission is
economic operators, Member States and consumers. In view
of the fact that some provisions are open to interpretation
and given the absence of relevant case law,
the approach
rests on the in dubio pro libertate principle.

and market developments.
to increase

In doing
legal

and techniques of

so,
certainty

seeking

7.
During the 2003 public consultation on the review of the
Directive in accordance with the work programme annexed to
the
the report of 6 January 2003 on the application of
Directive (hereinafter the ‘fourth report’) (11), the majority of
contributions from Member States, regulatory authorities and
interested parties supported the idea of clarifying how the
relevant provisions of the Directive apply to new advertising
techniques. Similarly, there was a broad consensus in favour of
considering these techniques compatible with the television
without frontiers Directive (12). The conclusions of the Italian
Presidency following the informal Council of Ministers for
Audiovisual Media in Syracuse (13) and the debates of
the
Contact Committee point in the same direction (14).

To achieve this balance,

the Directive lays down a
4.
number of key principles, including the principle of separation
between editorial content and advertising (3), the principle of
insertion of advertising spots between programmes, with the
possibility, subject to certain conditions, of inserting advertising
spots during programmes (4), hourly and daily limits on the
amount of advertising (5), rules on the protection of human
dignity and of minors (6),
rules on sponsorship and tele-
shopping (7) and rules on public health restricting advertising
for certain products (ban on advertising for tobacco and

such as

In addition, the debates of the Contact Committee and
8.
the public consultation raised a number of questions with
regard to the compatibility of certain emerging advertising
telepromotions, mini-spots or product
practices,
the Directive. These
placement, with the provisions of
questions are,
linked to the interpretation of key
in turn,
rules and concepts in the Directive, such as those relating to
the separation between editorial content and advertising, ‘spon-
sorship’, ‘surreptitious advertising’, insertions or the amount of
television advertising.

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2. BASIC PROVISIONS AND THEIR APPLICATION TO

CERTAIN COMMERCIAL PRACTICES

2.1. Amount of television advertising

2.1.1. Hourly amount

frontiers Directive,

In the light of the original wording of the television
9.
the Member States differed in
without
their interpretation of the provision of Article 18 that ‘the
amount of spot advertising within a given one-hour period
shall not exceed 20 %’. According to the
sliding hour
criterion adopted by some Member States, a broadcaster
could not broadcast more than 20 % advertising, regardless
of the precise moment from which a given one-hour period
was deemed to run. This interpretation amounted to an
absolute ban on the broadcast of advertising for a continuous
period of more than 12 minutes. However, according to the
clock hour criterion adopted by other Member States, a
reference hour
constituted a period of 60 consecutive
minutes, starting at minute 0 and ending at minute 59
(natural clock hour) or starting at any time after minute 0,
for example where a broadcaster's broadcasts start at 6.05 on
In this latter case,
any given day (overlapping clock hour).
consecutive clock hours would run from 6.05 to 7.04, from
7.05 to 8.04, and so on.

10.
Following the amendment of the Directive by Directive
97/36/EC of the European Parliament and of the Council of 30
June 1997, Article 18(2) now refers to ‘the proportion of
advertising spots and teleshopping within a given clock
hour’. The Community legislator thus wanted to introduce
specifying
the
whether this was to be understood as a natural clock hour
or an overlapping clock hour (15). This intention on the part
of the legislator is reflected in the different language versions of
the Directive (16).

criterion without, however,

clock hour

11.
This criterion allows advertising to be restricted to a
maximum of 12 minutes during any given hour while
offering greater flexibility to broadcasters with regard to the
distribution of advertising spots. According to this interpre-
tation, Article 18(2) of the Directive allows for continuous
broadcasting of advertising over a period of more than 12
minutes. Such broadcasting could,
start at
minute 50 of a given hour and end at minute 10 of the
following hour.

for example,

reference hours taken into account in the calculation of the
hourly amount of television advertising represent periods
of 60 consecutive minutes starting at minute 0 and ending
at minute 59. In contrast, pursuant to the logic of the
overlapping clock hour,
the reference hours taken into
account represent periods of 60 consecutive minutes that
could start subsequently to minute 0 (e.g. the minute 8 of a
given hour) and finish during the following hour (in our
example, at the end of the seventh minute of the following
hour).

This provides an example of the balance which the
13.
Directive aims to establish between the freedom to produce
television advertising and the protection of
the general
public, given that such a measure allows a maximum of
freedom (by comparison with the original version of
the
Directive) while facilitating the competent authorities' moni-
toring of the time limits for advertising.

2.1.2. Daily amount

The daily amount of authorised television advertising
14.
and teleshopping is defined as a proportion of daily trans-
mission time. The latter concept is therefore key. According
to Article 18(1) of the Directive,
it is with reference to this
concept that the 15 % television advertising and 20 % tele-
shopping spots, advertising spots and other forms of adver-
tising are calculated (17). In addition, the concept of ‘day’
is
used in Article 18a with reference to windows devoted to
teleshopping broadcast by channels not exclusively devoted
to teleshopping (18).

15.
Unlike the concept of hour, the concepts of ‘daily trans-
mission time’ and ‘day’ are not defined in the Directive. In the
television industry, the concepts of ‘day’ or ‘daily transmission
time’ may be understood as referring to the calendar day or the
programming day. A glance at a television programme will
confirm that programming days may often start at,
for
example, 06.00 (and not at 00.00) and end at 05.00 the
following day (and not at midnight).

12.
The concept of clock hour used in Article 18(2) of
the Directive can be understood as referring either to a
natural clock hour, or to an overlapping clock hour.
the
Pursuant

the natural clock hour

to the logic of

The preparatory work also provides no indication on
16.
‘day’ and ‘daily transmission time’
how these concepts of
should be interpreted. These concepts will
therefore be
clarified in this Communication, ‘by reference to the purpose
and general scheme of the regulation’ of which they form
part (19).
the
preliminary ruling of the European Court of Justice on the
the Directive, which covers
interpretation of Article 11 of
insertions of advertising.
In its ruling, the Court concluded,
inter alia, that:

respect, note should be

taken of

In this

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‘It follows that, when a provision of Directive 89/552/EEC
imposes a restriction on broadcasting and on the distribution
of television broadcasting services, and the Community legis-
lature has not drafted that provision in clear and unequivocal
terms, it must be given a restrictive interpretation.

editorial content are prohibited. This same principle of sepa-
ration is behind the ban on surreptitious advertising and tele-
shopping.

Since Article 11(3) of Directive 89/552/EEC, as amended,
imposes a restriction as regards the possibility of interrupting
the transmission of audiovisual works by advertising,
that
restriction must be
strictest possible
sense’ (20).

interpreted in the

this

This amounts to applying to the field of

17.
television
services the customary principle of the restrictive interpretation
of exceptions to or restrictions of the freedom to provide
services (21). Against
the Commission
considers that the concepts of ‘daily transmission time’ and
‘day’ may be calculated by reference to the programming
day, which,
in turn, may correspond to a calendar day
(starting at 00.00 and ending at midnight) or differ from it
(by, for example, starting at 06.00 and ending at 05.50 the
following calendar day).

background,

The Commission considers that

18.
the concepts of
‘daily transmission time’ and ‘day’ should be interpreted
in turn, may
as referring to a programming day, which,
correspond to a calendar day or to a separate programming
day starting, for example, at 06.00 and ending at 05.50 the
following calendar day.

2.2. Form and presentation of television advertising and

teleshopping (Article 10)

19.
Separation between advertising and editorial content.
Article 10 of the Directive contains a series of provisions on
the form and presentation of television advertising and tele-
shopping. In particular, Article 10(1) of the Directive provides
that advertising and teleshopping must be readily recognizable
as such and kept quite separate from other parts of
the
programme service by optical and/or acoustic means. In view
of the similar wording of many provisions in the television
without frontiers Directive and in the European Convention
Television
Television
on
Convention’) (22),
to consider how the
it may be useful
the
provisions have been interpreted in the framework of
Convention.
to the
revised European Convention on Transfrontier Television (the
‘explanatory report’) specifies that the general interest purpose
of this provision is to avoid any confusion between advertising
or
the
teleshopping programmes and the other
programme service (23). Programmes which fail
to observe
this so-called principle of separation between advertising and

the Explanatory Report

In this respect,

(‘Transfrontier

Transfrontier

items of

that

20.
Advertising and isolated teleshopping spots. Article
isolated advertising and teleshopping
10(2) provides
spots must remain the exception. With this provision,
the
Community legislator has laid down a clear rule that adver-
tising and teleshopping must be broadcast on screen, with
limited scope for derogation. In this respect, the explanatory
report provides that there may be circumstances where indi-
vidual spots are permissible, in the case for example of a single
long advertisement, or where the period available for adver-
tising or teleshopping is very short, as between the rounds of a
boxing or wrestling match, or where the broadcaster has insuf-
ficient advertising orders to permit a grouping of spots (24).

21. Mini-spots. The advertising practice of using so-called
mini-spots has emerged in connection with the transmission
of football matches (25). It consists of broadcasting an extremely
short advertising spot during an incident. Without prejudice to
the question of whether such incidents may be considered
‘intervals’ within the meaning of Article 11(2), national auth-
orities must ensure that the broadcast of mini-spots does not
undermine the key principles on the form and presentation of
television advertising laid down in Article 10 of the Directive.
In the first instance, it is up to the Member States to ensure
that mini-spots are presented in a manner which complies with
the basic principle laid down in Article 10(1) of the Directive
that advertising ‘shall be readily recognizable as such and kept
quite separate from other parts of the programme service by
optical and/or acoustic means.’ This principle has the purpose
to allow the viewer to make a distinction between editorial
content and commercial communications.
the
Member States must ensure that the broadcast of mini-spots
in accordance with the rule that isolated
is ‘the exception’,
advertising must remain the exception (Article 10(2)).

In addition,

2.3. Insertion of advertising and teleshopping (Article 11)

the programme,

Article 11 of the Directive stipulates that advertising and
22.
teleshopping spots shall be inserted between programmes or,
provided certain specified conditions are fulfilled, may be
inserted during programmes in such a way that the integrity
and value of
taking into account natural
breaks in and the duration and nature of the programme,
and the rights of the rights holders are not prejudiced. The
Court has explicitly recognised that
this Article not only
protects the interests of the rights holders and broadcasters,
but also protects the viewers from excessive advertising (26).
The conditions under which advertising may be inserted
during certain programmes are specified by the Directive.
Thus, Article 11(2) provides that in programmes consisting
of autonomous parts, or in sports programmes and similarly
structured events and performances containing intervals, adver-

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tising and teleshopping spots shall only be inserted between
the parts or in the intervals. Article 11(3) provides further
clarification with regard to the interruption of feature films
and films made for television. Article 11(4) provides that
where programmes, other than those covered by paragraph
2, are interrupted by advertising or teleshopping spots, a
period of at least 20 minutes should elapse between each
successive advertising break within the programme. Finally,
advertising during broadcasts of
Article 11(5) prohibits
affairs
religious
programmes,
and
children's programmes, when their scheduled duration is less
than 30 minutes (27).

and during news

documentaries,

and current

programmes

religious

services

single

23.
Sports programmes. The Commission would like to
clarify how the provisions of Article 11 apply to sports
programmes. In this respect, it should be recalled that Article
11(2) applies only to ‘sports programmes
. . . containing
intervals’. The interval must be natural and recurring and
directly linked to the structure of the performance or event,
as suggested by the explicit reference to ‘similarly structured
events and performances’. The explanatory report specifies that
the notion of ‘autonomous part’ during sports programmes
must, generally speaking, correspond to natural breaks which
are in keeping with the sport in question (28). This does not
conceivable
breaks,
cover
programmes would otherwise be covered by Article 11(2) of
the Directive and not only those specifically mentioned. For
instance, concerning football, it follows from this interpretation
that a corner, a free kick, a player replacement, etc., which
does not entail a break in the game, does not constitute an
interruption within the meaning of Article 11(2). This must be
distinguished from the case where a period of break in the
game related to these events is deducted and may be added
to the prescribed duration. However, sports programmes which
do not contain such natural breaks, such as cycle races, track
races or Formula 1 races, fall within the scope of paragraph 4,
which covers programmes other
than those covered by
paragraph 2.

accidental

since

all

Sports programmes which do not contain breaks
24.
within the meaning of Article 11(2) of the Directive are
subject to the rule laid down in Article 11(4). As a result, a
period of at least 20 minutes should elapse between each
successive advertising break within the programme.

presentation of one or more products or services, where the
programme presenters momentarily swap their role in the
games in progress for one as ‘promoters’ of the goods or
services which are the object of the advertising presentation.

26.
The Commission considers that telepromotions are
compatible with Article 10 of the Directive, provided they
are kept quite separate from other parts of the programme
service by optical and/or acoustic means enabling viewers
to readily recognise their commercial nature.

27.
It is for the competent national authorities to ensure
compliance with the provisions of Article 10 of the Directive
and to adopt the necessary implementing measures in that
regard.

28.
Hourly duration. It is worth reminding that teleshopping
spots fall under the hourly and daily limits set by Article 18 of
the Directive. In contrast, in its previously mentioned second
report on the application of the Directive, the Commission has
reminded that telepromotions that are other forms of adver-
tising, fall under the daily limits provided by the Directive. It
follows from Article 18(2) of the Directive that the proportion
of telepromotion spots (like teleshopping and advertising spots)
within a given clock hour shall not exceed 20 %. However, the
Article does not apply to telepromotion which is not presented
in the form of spots but during a programme. When broadcast
in that manner, following the case law of the Court, telepro-
motion must be regarded as another form of advertising. It
follows that the rules on the hourly duration of advertising
which apply to ‘advertising spots’ and ‘teleshopping spots’ are
not applicable to telepromotion (30).

29.
Article 18(1) of the Directive on the authorised daily
duration of advertising and teleshopping is applicable to
telepromotion spots and programmes. However, Article
18(2) of the Directive on the maximum hourly duration
of
telepromotion
presented during a programme.

television advertising does not cover

2.4. Telepromotions

25.
The Commission addressed the issue of telepromotions
in its second report on the application of the Directive (29) in
order to explain a judgment of the Court which concerned,
inter alia, the amount of daily transmission time allowed for
this type of advertising under the original television without
frontiers Directive, prior to its amendment in 1997. As noted
by the Commission at the time, telepromotions are a form of
television advertising based on the interruption of studio
programmes (especially game shows) by slots devoted to the

2.5. Surreptitious advertising

30.
Surreptitious advertising and surreptitious teleshopping
the television without
are prohibited by Article 10(4) of
frontiers Directive. Article 1 of the Directive defines surrep-
titious advertising as ‘the representation in words or pictures
of goods, services, the name, the trade mark or the activities of
a producer of goods or a provider of services in programmes
when such representation is intended by the broadcaster to
serve advertising and might mislead the public as to its
nature. Such representation is considered to be intentional in
particular if it is done in return for payment or for similar
consideration’.

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To be considered surreptitious advertising, the represen-
31.
tation in words or pictures of goods, services, the name, the
trade mark or the activities of a producer of goods or a
provider of services must meet three cumulative conditions:
it must be done to
it must be intended by the broadcaster,
serve advertising and it must be capable of misleading the
public as to its nature.

However, the two channels must hold separate licenses,
36.
be clearly distinguished from one another and not present any
risk of confusion. In other words, they must make no reference
to each other's name or logo and must be clearly distinguished
in both paper and electronic programme guides (EPG).

32.
It follows from this definition that the Directive does
not contain an absolute ban on all references in words or
pictures to goods, services, the name, the trade mark or the
activities of a producer of goods or a provider of services. Such
references
expression,
particularly in today's world in which brands play an
important part.

freedom of

integral

remain

to

Given that intentionality is a criterion for prohibiting
33.
surreptitious advertising, the distinction between surreptitious
advertising and a lawful reference to goods, services, brands or
names of economic operators can,
in practice, be rather
for the national authorities to draw. With this in
difficult
mind, the Commission considers it appropriate to apply the
criterion of the ‘undue prominence’ of the good, service, brand
or company name. The undue nature may result from the
recurring presence of the brand, good or service in question
or from the manner in which it is presented and appear. In this
regard, the content of the programmes in which the brand,
good or service appears should be borne in mind (feature
films, news programmes).

the

For

fact

that

example,

34.
a good is displayed
prominently is, among others, a sign of surreptitious adver-
tising when such a display is not warranted on the editorial
grounds of the programmes, is the result of an influence on the
content thereof for commercial purposes or is likely to mislead
the public on the nature of such a presentation.

2.6. Teleshopping

35.
Under the terms of the Directive, a channel may be
exclusively devoted to teleshopping and broadcast teleshopping
programmes all day long. The Commission has been asked to
clarify how the rules of the Directive apply when two channels
share the same frequency but hold separate licenses and one of
these channels exclusively broadcasts teleshopping programmes
(generally during the night). The Commission considers that
sharing a frequency with another channel does not prevent a
channel offering services such as teleshopping from being
considered exclusively devoted to teleshopping and from
consequently benefiting from the provisions of Article 19 of
the Directive.

3. NEW ADVERTISING TECHNIQUES

37.
In its Communication on principles and guidelines for
the Community's audiovisual policy in the digital age (31), the
Commission noted the emergence of new advertising tech-
niques, such as split screen and virtual advertising, and the
questions which they raise with regard to certain key rules
laid down in the Directive, such as the prohibition of surrep-
titious advertising (32) and the need for a clear separation
between advertising and other material (33).
In this respect,
the Communication stressed that ‘the point is not to restrict
the development of new advertising techniques but to ensure
that basic principles . . . continue to apply’.

At the Commission's request, a study into new adver-
38.
tising
an independent
carried out by
techniques was
consultant (34). The main conclusions from this study were
set out by the Commission in its fourth report. The study
found that split screen, virtual and interactive advertising
were not per se incompatible with the Directive. However,
the situation differs significantly from one Member State to
another with regard to actual use, relative importance and
the approach adopted by national authorities.

39.
Split screen advertising is prohibited in some Member
States (Portugal and France), but allowed in others, including
Germany and the United Kingdom, with Germany the only
Member State to have adopted specific regulations in this
area. Virtual advertising is prohibited in France, Portugal and
Norway as contrary to the principles governing the insertion of
advertising during programmes, but authorised in Greece and
Spain, and even subject to specific regulations in the United
Kingdom and Germany. According to the report, the United
Kingdom is the only Member State to have adopted specific
regulations on interactive advertising. Apart from the rules laid
down by the Independent Television Commission (ITC) (35) and
the code drawn up by the European Group of Television
Advertisers (EGTA) (36), with interactive advertising still at an
experimental stage in the vast majority of Member States there
appear to be no specific regulations applicable to interactive
commercial services.

40. Moreover, the study revealed that the differences in the
manner in which new advertising techniques are treated in
national law are often the result of differences in interpretation
of the key rules laid down in the Directive.

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3.1. Split screen

Split screen advertising consists of the simultaneous or
41.
parallel
transmission of editorial content and advertising
content. For example, one or more advertising spots appear
in a window during the transmission of a programme in
such a way that
two separate images are visible on the
screen. Provided the space set aside for advertising is not
excessive,
this technique enables the viewer to continue to
watch the editorial programme during the transmission of an
advertising spot.

In the

framework of

the Transfrontier Television
42.
Convention,
the Standing Committee adopted an opinion
according to which split-screen advertising is covered by the
Convention, but it cannot be regarded as acceptable under the
Convention, unless it satisfies the following criteria: (i) a clear
and recognisable separation of programming and advertising
content and (ii) full compliance with all the other requirements
of the Convention, in particular Articles 7 (responsibilities of
advertising standards), 12
the broadcaster), 11 (general
(duration of advertising), 13 (form and presentation of adver-
tising), 14 (insertion of advertising) and 15 (advertising of
particular products) (37).

The

legal

43.
screen
framework governing
technique varies according to whether it is used for television
advertising or to display the logo or name of the programme
sponsor.

split

the

A spatial

46.
separation by optical and/or acoustic
means may comply with the rule on separation laid
down in Article 10(1) of the Directive.
In this respect,
the separation must be such as to make advertising and
teleshopping readily recognisable as such and kept clearly
separate from other parts of the programme.

screen advertising. However,

47.
The principle of separation between advertising and
editorial content should thus not be interpreted as prohibiting
split
such advertising must
comply with the provisions on separation between editorial
content and advertising laid down in Article 10 of
the
Directive. This implies that split screen advertising must be
readily recognisable as such and kept clearly separate from
other parts of the programme by acoustic or optical means
aimed at preventing the viewer from mistaking advertising
for editorial content. A spatial separation by optical and/or
acoustic means is adequate, provided it identifies advertising
clearly and enables the viewer to readily recognise it.

48.
The split screen technique is generally used for broad-
casting relatively short advertising spots. Advertising spots on a
split screen must be treated in the same way with regard to
Article 11 and 18 of the Directive as television advertising
spots.

3.1.1. Split screen and television advertising

44.
Article 1(c) of the Directive defines television advertising
as any form of announcement broadcast in return for payment
or for similar consideration to promote the supply of goods,
services, rights and obligations in return for payment. Given
the split screen technique is used to broadcast such
that
announcements, in terms of the Directive it must be treated
in the same way as any other advertising announcement.

49.
Insertion (Article 11). Article 11 aims to protect viewers
against excessive advertising, on the one hand, to safeguard the
integrity and economic value of programmes in the interest of
the rights holders, on the other hand (38). Therefore, consent
from the holders of the rights to the programme during which
split screen advertising is to be broadcast has to be obtained.
Moreover, even in the case where the consent of the holders of
the rights to the programmes has been obtained, and in order
to protect the viewers against excessive advertising, split screen
that might prejudice the integrity of
the audiovisual work
during which it
is per se incompatible with
Article 11 of the Directive.

is broadcast

the form of a temporal

Presentation (Article 10). Traditionally, the separation
45.
between editorial content and commercial communications
separation: advertising is
takes
inserted between or during programmes and kept quite
separate from these programmes by a screen which is ident-
ifiable by its optical or acoustic characteristics. It nevertheless
follows from the letter and the spirit of the Directive that a
temporal separation from the rest of the programme is not
necessarily required if the acoustic or optical means used by
the broadcaster produce the result sought by the legislator,
namely to prevent the viewer from confusing advertising and
editorial content.

Amount (Article 18). The provisions of Article 18 on
50.
hourly and daily duration of advertising apply in full to split
screen advertising.
In this respect, the fact that split screen
advertising spots and teleshopping spots within the meaning
of Article 18(2) might only occupy a part of the television
screen cannot justify more favourable treatment under these
provisions.

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Advertising content. Split

screen advertising must
51.
comply with the provisions of Articles 12 and 16 on the
protection of human dignity and of minors, as well as the
rules
laid down in Articles 13 and 15 concerning the
prohibition or restriction of advertising for certain products.

52.
Split screen advertising is compatible with the Directive,
provided it is readily recognisable and kept quite separate from
other parts of the programme by acoustic or optical means so
to prevent viewers mistaking advertising for editorial
as
screen advertising must not prejudice the
content. Split
integrity of
is broadcast.
the programme during which it
Split screen advertising is fully covered by the provisions of
Directive on the presentation (Article 10),
insertion (Article
11), duration (Article 18) and content (Articles 12 to 16) of
advertising.

3.1.2. Split screen advertising and sponsorship

its

image,

trade mark,

Article 1(e) of the Directive defines sponsorship as a any
53.
contribution made by a public or private undertaking to the
financing of television programmes with a view to promoting
its name,
its
its
products (39). According to the RTI
interpreting
Article 17 of the Directive, Article 17(1)(b) of the Directive
does not prohibit the insertion of the name and/or the logo
of the sponsor at times other than the start or the end of the
programme. As a result, in the light of this case law, the use of
the split screen technique to show the logo and/or name of the
sponsor during the broadcast of the sponsored programme is
not prohibited (40).

its activities or

judgment

17(1)(c)

it
provides

programmes must

sponsorship as a means for the sponsor to promote his
should nevertheless be noted that
activities. However,
Article
not
that
encourage the purchase or rental of the products or services
of the sponsor or a third party. It follows from these provisions
when taken together
rule, no explicit
reference may be made to the products or services of the
sponsor or a third party during the broadcast of sponsored
programmes, except where such a reference serves the sole
the
purpose of
link between the programme and the undertaking sponsoring
it.

identifying the sponsor or making explicit

that, as a general

During broadcasts of sponsored programmes, no
56.
explicit
reference may be made to the products or
services of the sponsor or a third party, except where
such a reference serves the sole purpose of
identifying
the link between the
the sponsor or making explicit
programme and the undertaking sponsoring it.

3.2. Interactive advertising

the viewer

Interactive advertising allows

57.
to supply
information directly to the broadcaster via a return path or
to interactively explore a chosen environment for as long as
he wishes. In this connection, the Commission would like to
refer to the EGTA code of conduct and the ITC guidance
notes (41).

54. Where the split screen technique is used to identify the
programme sponsor,
it must comply with the provisions of
Article 17 of the Directive. In addition, although Article 17
is not explicit on this point, it follows from a systematic and
teleological interpretation of the Directive that the presentation
of the logo and/or name of the sponsor in a manner which
might prejudice the integrity of
the sponsored programme
would be incompatible with the Directive. The infringement
of the integrity of the programme is assessed in taking into
account, in particular, the duration and the size of said pre-
sentation.

58.
As a service supplied on individual demand, interactive
advertising is an information society service and thus outside
the scope of the Directive (42). Generally speaking, however,
interactive advertising tends to be initiated by the viewer on
the basis of an advertisement broadcast in the framework of a
linear programme. A blinking banner appears during the adver-
tising spot, inviting the viewer to click on his remote control to
obtain further information. The viewer enters the interactive
programme by sending a message to that effect
from his
remote control. It follows that, as long as the viewer has not
voluntarily chosen to enter the interactive environment, the
context is one of a linear broadcast of television programmes
governed by the television without frontiers Directive.

Finally, both the independent study and the discussions
55.
of the Contact Committee have highlighted differences in the
way sponsorship is treated in national law, in particular with
regard to the possibility of referring to the products of the
sponsor or a third party. In this respect, Article 17 does not
lay down a formal prohibition. Indeed, Article 1(e) even defines

Furthermore, when entering a commercial

59.
interactive
environment from a linear programme, viewers are entitled
to expect a level of consumer protection similar to that
which they enjoy under
the television
without frontiers Directive.

the provisions of

28.4.2004

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C 102/9

The television without

frontiers Directive therefore
60.
applies
to linear programmes from which the interactive
programmes are accessed. This Communication provides an
opportunity to clarify the practical
this
situation.

implications of

First,

61.
in accordance with the principle of separation
between advertising and editorial content, the interactive icon
on which the viewer must click to access the interactive
environment must
advertising
itself kept separate and clearly distinguishable
programme,
from the editorial content. This icon may be inserted during
a traditional advertising spot or an advertising spot broadcast
using the split screen technique.
In the latter case, prior
permission must be obtained from the rights holders (43).

integrated

into

an

be

Secondly, when clicking on the interactive icon, viewers
62.
should not be guided straight
to advertisements which are
incompatible with the provisions of Articles 12 to 16 of the
Directive.

Thirdly, given that Article 16 provides that advertising
63.
‘shall not directly exhort minors to buy a product or a service
by exploiting their inexperience or credulity’, advertising spots
broadcast between or during children's programmes may not
include icons enabling direct access to interactive advertising of
the kind prohibited by Article 16. Similarly, given that Article
15 of
the Directive lays down a series of restrictions on
television advertising and teleshopping for alcoholic beverages,
interactive advertising for alcoholic beverages which may be
accessed directly from a linear programme must comply with
the
conditions governing television advertising and tele-
shopping for alcoholic beverages laid down in Article 15.

interactive

64.
Finally, by analogy with the provisions of Article 10 on
the recognisable nature of advertising, when entering a
the viewer must be
environment
commercial
warned by appropriate optical and/or acoustic means so as
to enable him to act on a voluntary and informed basis and
not be misled about the commercial nature of the messages to
which he will be exposed in the interactive environment. The
viewer must thus be informed that by clicking on the inter-
active icon he will leave the linear environment governed, at
Community level, by the ‘television without frontiers’ Directive
and enter a commercial interactive environment governed by
the ‘electronic commerce’ Directive (44). This may be done by
means of an intermediate advertising screen which appears at
the first click, with the viewer being able to access the inter-
active programme only after a second click.
is for the
Member States to lay down the appropriate measures for guar-
anteeing viewers adequate protection in this respect.

It

65.
As long as the viewer has not entered the interactive
environment, the context is one of a linear broadcast of
television programmes governed by the television without
frontiers Directive. This means that the provisions of the
to the obligation to keep
Directive apply with respect
advertising separate from editorial content, to advertising
content and to the protection of human dignity and of
minors. However, when the viewer has chosen to enter
the interactive environment on a voluntary and informed
basis, the messages aimed at him are governed not by the
provisions of the ‘television without
frontiers’ Directive,
and in particular its provisions on the insertion (Article
11) and amount (Article 18) of advertising, but by those
of the ‘electronic commerce’ Directive. However, regardless
of the linear or interactive broadcasting method used, the
Recommendation on the protection of minors and of
human dignity should be observed (45).

3.3. Virtual sponsorship

Virtual advertising involves using virtual techniques for
66.
inserting advertisements during broadcasts of sporting events,
in particular, by replacing existing advertising boards on the
field or by superimposing new (e.g., three-dimensional) images.
Virtual advertising is the subject of an EBU memorandum (46)
and an ITC guidance note (47).

67.
The Commission considers that this technique complies
with the Directive. However, it must not affect the comfort and
pleasure of the viewer (48), adversely affect either the integrity
or the value of the programmes or prejudice the interests of
the rights holders (49). The possibility of inserting such virtual
advertising messages must
the necessary
protection of these objectives of general interest.

take into account

68.
Broadcasters and viewers must be informed in advance
of the presence of virtual images, and the insertion of the latter
is subject to prior permission from the organiser of the event
being broadcast and the rights holders.

69. Where the broadcaster has a direct or indirect control
and virtual advertising is inserted in return for payment or for
similar consideration, such insertion is admissible, in particular
within the framework of the retransmission of sports' events,
insofar as it qualifies as sponsorship within the meaning of the
Directive. To this extent, virtual advertising may be used, in
particular during broadcasts of sporting events, only on the
surfaces of
the site or stadium where advertising may be
materially affixed and, which are usually intended for such
promotional purposes. Virtual advertising messages must not
be more visible or conspicuous than those that are usually and
materially displayed on site. Further, the provisions concerning
sponsorship of articles 1 and 17 of the Directive in particular
must be entirely complied with.

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Official Journal of the European Union

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4. CONCLUSION

The aim of

70.
this interpretative Communication is to
specify how the provisions of the Directive apply to certain
commercial practices and to new advertising techniques with a
view to clarifying the rules and increasing the legal certainty
for operators.
is without prejudice to the interpretation
which may be given to the provisions and concepts in
question by the European Court of Justice as the final arbiter
of Community law.

It

a revision of the Directive and to the application of other rules
laid down in Community law, such as those relating to
copyright (50).

In accordance with Article 3 of

72.
Communication does not prevent
laying down more detailed or stricter rules.

the Directive,
this
the Member States from

71.
This Communication aims to clarify the existing rules
laid down in the Directive, not create new ones. It is without
prejudice to the outcome of the Commission's future work on

73.
Finally, the Commission wishes to stress the potentially
important role which codes of conduct and co-regulation may
play in the practical implementation of the principles and rules
of the Directive.

(1) OJ L 298, 17.10.1989, p. 23.
(2) OJ L 202, 30.7.1997, p. 60.
(3) See Article 10 of the Directive.
(4) Article 11 of the Directive.
(5) Articles 18 to 19a of the Directive.
(6) Articles 12 and 16 of the Directive.
(7) Article 17 on sponsorship, Articles 18a and 19 on teleshopping.
(8) Articles 13, 14, 15 and 17.
(9) Directive 84/450/EEC as amended by Directive 97/55/EC.
(10) COM(2003) 784 final.
(11) Fourth report from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee
of the Regions on the application of Directive 89/552/EEC ‘Television without Frontiers’, COM(2002) 778 final, available at the following address:
http://europa.eu.int/comm/avpolicy/regul/twf/applica/comm2002_778final_en.pdf

(12) All contributions of a non-confidential nature are available at

the following address: http://europa.eu.int/comm/avpolicy/regul/review-

twf2003/contribution.htm

(13) The conclusions are available at the following address: http://www.comunicazioni.it/en/Img/8/Conclusioni%20in%20inglese.pdf
(14) Committee set up under the aegis of the Commission pursuant to Article 23a of the television without frontiers Directive and charged, inter alia,

with the task of facilitating the effective implementation of the Directive.

(15) On this point, see the Report on application of Directive 89/552/EEC and Proposal for a European Parliament and Council Directive 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(95) 86 final, p. 41.

(16) See the French (‘heure d'horloge’), English (‘clock hour’), Swedish (‘timme mellan hela klockslag’), Danish (‘klokketime’), Spanish (‘hora de reloj’),

Italian (‘oro d'orologio’), Portuguese (‘hora de relógio’), German (‘gerechnet ab einer vollen Stunde’) and Dutch (‘klokuur’) versions.

(17) Article 18(1) of the Directive.
(18) This Article provides that the maximum number of windows devoted to teleshopping broadcast by channels not exclusively devoted to tele-

shopping shall be eight per day and that their overall duration shall not exceed three hours per day.

(19) European Court of Justice, 9 January 2003, Nani Givane and Others v. Secretary of State for the Home Department, Case C-257/00, paragraph 37,

[2003] ECR I-345.

(20) European Court of Justice, 28 October 1999, Arbeitsgemeinschaft Deutscher Rundfunkanstalten (ARD) v. PRO Sieben Media AG, Case C-6/98 (‘ARD’),

paragraphs 30 and 31, [1999] ECR I-7599.

(21) European Court of Justice, 26 April 1988, Bond van Adverteerders, Case 352/85, paragraph 36, [1988] ECR, p. 2085.
(22) The revised version of

the Convention is available at

the following address: http://www.coe.int/T/F/Droits%5Fde%5Fl%27Homme/Media/

2%5FT%2DTT/2%5FTexte%5Fde%5Fla%5FConvention/PDF_E%20CETT.pdf

(23) See the explanatory report as amended by the provisions of the Protocol which entered into force on 1 March 2002, paragraph 228, available at

the following address: http://conventions.coe.int/Treaty/EN/Reports/Html/132.htm

(24) Explanatory report, op. cit., paragraph 229.
(25) See the study by the European Audiovisual Observatory entitled ‘The Insertion of Short Advertisement spots during football matches’, available at

the following address: http://www.obs.coe.int/online_publication/expert/ad_football.html.en

(26) European Court of Justice, 23 October 2003, RTL Television GmbH v. Niedersächsische Landesmedienanstalt für privaten Rundfunk, Case C-245/01

‘RTL’, paragraph 64, not yet published in the Court Reports.

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(27) It should be pointed out that, in the English language version of the 1989 Directive, the term used was ‘programmed duration’. In the 1997
amended Directive, this term has been replaced by ‘scheduled duration’ so as to make it clear that the reference duration is that indicated in the
broadcaster's programme.

(28) Explanatory report, op. cit., paragraph 247.
(29) 2nd Report from the Commission to the Council, the European Parliament and the Economic and Social Committee, available at the following

address: http://europa.eu.int/comm/avpolicy/regul/twf/applica/156fr.htm

(30) European Court of Justice, 12 December 1996, Reti Televisive Italiane SpA (RTI), Radio Torre, Rete A Srl, Vallau Italiana Promomarket Srl, Radio
Italiana Solo Musica Srl e.a. et Gete Srl v. Ministero delle Poste e Telecommunicazioni, Joined Cases C-320, 328, 329, 337-339/94 (‘RTI’), [1996] ECR
I-6471, paragraph 37.

(31) Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the

Regions of 14 December 1999, COM(1999) 657 final.

(32) Article 10(4).
(33) Article 10(1).
(34) Study

by

Bird & Bird
pub_rapportfinal_en.pdf

and Carat Crystal

available

at

the

following

address:

http://europa.eu.int/comm/avpolicy/stat/bird_bird/

(35) UK monitoring body whose powers are now exercised by OFCOM. The ITC's guidance notes on interactive advertising are available at the

following address: http://www.ofcom.org.uk/codes_guidelines/broadcasting/tv/vrs_code_notes/i_tv/?a=87101

(36) EGTA (European Group of Television Advertisers) code of conduct on commercial communication on the new interactive services, available at the

following address: http://www.egta.com/pages/EGTA-Code-DEF.fr.pdf

(37) Opinion No 9 adopted during the meeting of

the Standing Committee on 29 to 30 April 2002, available at

the following address:

http://www.coe.int/t/e/human%5Frights/media/2%5FT%2DTT/5%5FMeeting%5Freports/T-TT(2002)002%20E%20Report%2030e.asp#TopOfPage

(38) This is clear particularly from Article 11(1) and from the RTL judgment, Case No C-245/1, op. cit.
(39) See Article 1 of the Directive for definitions of these concepts.
(40) RTI judgment, op. cit.
(41) Op. cit.
(42) However, the protection afforded to consumers by the misleading advertising Directive extends to interactive advertising. Once adopted, the

provisions of the recent proposal for a framework directive on unfair business-to consumer commercial practices will apply.

(43) See point 51 above.
(44) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in

particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1).

(45) Council Recommendation 98/560/EC 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 (OJ L 270, 7.10.1998, p. 48).

(46) EBU (European Broadcasting Union) memorandum on virtual advertising, available at the following address: http://www.ebu.ch/departments/legal/

pdf/leg_virtual_advertising.pdf?display=EN

(47) ITC guidance note on virtual advertising, available at the following address: http://www.ofcom.org.uk/codes_guidelines/broadcasting/tv/adv_spon/

rules_amount_scheduling_adv/va_note?a=87101

(48) The fact that the interests of the viewer as consumer are taken into account also transpires from the RTL judgment, op. cit., paragraphs 62-65.
(49) RTL judgment, op. cit., paragraph 52.
(50) In particular Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of

copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10).