Proposal for a Recommendation of the European Parliament and of the Council on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audiovisual and information services industry
Date: 2004-04-30
Institutions: European Commission
Subjects: audiovisual industry, child protection, competitiveness, fundamental rights, information industry

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.4.2004 
COM(2004) 341 final 

2004/0117 (COD) 

Proposal for a 

RECOMMENDATION OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL 

on the protection of minors and human dignity and the right of reply in relation to 
the competitiveness of the European audiovisual and information services industry 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
EXPLANATORY MEMORANDUM 

1. 

INTRODUCTION 

On  24  September  1998,  the  Council  adopted  the  Recommendation  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)1  ("the  Recommendation").  The  Recommendation  is  the  first  legal 
instrument  at  EU-level  concerning  the  content  of  audiovisual  and  information 
services covering all forms of delivery, from broadcasting to the Internet. 

In  section  III  of  the  Recommendation,  paragraph  4  calls  on  the  Commission  to 
present an evaluation report on its application in the Member States, two years after 
its adoption, to the European Parliament and the Council. 

The implementation of the Recommendation was evaluated for the first time in 2000, 
and the first report was published in 2001: Evaluation Report to the Council and the 
European  Parliament  on  the  application  of  Council  Recommendation  of  24 
September  1998  on  protection  of  minors  and  human  dignity2.  The  report  indicated 
that  the  implementation  of  the  Recommendation  was  already  quite  satisfactory  in 
overall terms. The Council meeting (Culture) adopted its conclusions concerning the 
evaluation report on 21 June 2001, and Parliament adopted a resolution on the report 
on 11 April 20023, in which it called on the Commission to draw up a further report, 
at an appropriate time, and preferably before 31 December 2002. 

On  12  December  2003,  the  European  Commission  has  adopted  a  new  evaluation 
report on the September 1998 Council Recommendation concerning the protection of 
minors  and  human  dignity  in  audiovisual  and  information  services.  The  report 
analyses the measures adopted in the Member States and at EU level since the year 
2000. 

In order to be able to keep up with the challenges which technological developments 
bring, the Commission now follows up on the Second evaluation report by proposing 
this additional Recommendation.  

2. 

CONTEXT 

The Recommendation calls on the Member States, industry and interested parties, as 
well as the Commission, to take steps to enhance the protection of minors and human 
dignity  in  the  broadcasting  and  internet  sectors.  Illegal,  harmful  and  undesirable 
content  and  conduct  on  the  Internet  continues  to  be  a  concern  for  law-makers, 
industry  and  parents.  There  will  be  new  challenges  both  in  quantitative  (more 
“illegal”  content)  and  qualitative  terms  (new  platforms,  new  products).  Taking  into 
account the ever-increasing processing power and storage capacity of computers, and 

1 
2 
3 

OJ L 270, 7.10.1998, p. 48. 
COM(2001) 106 final, 27.2.2001. 
C5-0191/2001 - 2001/2087(COS). 

2 

 
 
  
 
                                                 
the  fact  that  broadband  technologies  allow  distribution  of  content  such  as  video  on 
3G mobile telephones, the need for a safe environment is greater than ever. 

3. 

SCOPE OF THE RECOMMENDATION 

The Recommendation focuses on the content of audiovisual and information services 
covering all forms of delivery, from broadcasting to the Internet. 

4. 

WHY A RECOMMENDATION FROM THE EUROPEAN PARLIAMENT AND THE COUNCIL 
RATHER THAN A RECOMMENDATION FROM THE COMMISSION? 

Given  that  the  harmonisation  of  laws  of  the  Member  States  is  excluded  from 
industrial  and  cultural  policies,  the  Community  is  bound  to  use  non-binding 
instruments, such as recommendations, to fulfil the tasks and obligations enshrined in 
the Treaty. 

The  EC  Treaty  gives  the  Commission  powers  to  adopt  Recommendations:  Article 
249  provides  that  “in  order  to  carry  out  their  task  and  in  accordance  with  the 
provisions  of  the  Treaty  …  the  Commission  shall  …  make  recommendations”. 
Article 211 states that “in order to ensure the proper functioning and development of 
the common market, the Commission shall … formulate recommendations or deliver 
opinions  on  matters  dealt  with  in  this  Treaty,  if  it  expressly  so  provides  or  if  the 
Commission considers it necessary”. 

Nevertheless, the Commission considers that a Recommendation from the European 
Parliament  and  the  Council  has  to  be  preferred  to  a  Recommendation  from  the 
Commission on this matter.  

The  Recommendation  in  question  seeks  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.  This  can  be  better  achieved  if  the  Recommendation  is 
discussed and adopted by the Council. In addition to this, the European Parliament 
has fully backed the need to protect minors and human dignity in its resolution4 of 11 
April  2002,  on  the  first  evaluation  report  on  the  Recommendation.  Therefore,  it 
seems  appropriate  to  fully  involve  the  European  Parliament  in  the  discussion  and 
adoption of the Recommendation. The involvement of the European Parliament will 
result  in  more  public  debate  and  a  bigger  impact  of  the  Recommendation.  In 
conclusion,  the  objective  pursued  by  the  Community  can  be  better  achieved  by  the 
adoption of a Recommendation from the European Parliament and the Council rather 
than a Recommendation from the Commission.  

4 

C5-0191/2001 - 2001/2087(COS). 

3 

 
 
  
 
                                                 
5. 

LEGAL BASIS FOR THE RECOMMENDATION 

The audiovisual and information industry in Europe has great potential for creating 
employment  and  contributing  to  economic  growth.  The  conditions  for  the 
competitiveness  of  these  industrial  activities  need  to  be  improved,  especially  as 
regards better use of technological developments, such as digitisation. Therefore, the 
legal basis proposed for the Recommendation is Article 157 of the EC Treaty, which 
requires  the  Community  and  the  Member  States  to  ensure  that  the  conditions 
necessary  for  the  competitiveness  of  the  Community’s  industry  exist,  with  action 
aimed, inter alia, at fostering better exploitation of the industrial potential of policies 
of innovation, research and technological development.  

Article  157  has  already  formed  the  legal  basis  for  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  dignity5,  which  is  complemented  by  this  Recommendation  and  Council 
Decision of 20 December 2000 on the implementation of a programme to encourage 
the  development,  distribution  and  promotion  of  European  audiovisual  works 
(MEDIA Plus – Development, distribution and promotion 2001-2005)6. 

5 
6 

OJ L 270, 7.10.1998, p. 48. 
OJ L 13, 17.1.2001, p. 35. 

4 

 
 
  
 
                                                 
2004/0117 (COD) 

Proposal for a 

RECOMMENDATION OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL 

on the protection of minors and human dignity and the right of reply in relation to 
the competitiveness of the European audiovisual and information services industry 

(text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND 
THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission,7 

Having regard to the Opinion of the European Economic and Social Committee,8 

Having regard to the Opinion of the Committee of the Regions,9 

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

(1) 

(2) 

(3) 

7 
8 
9 
10 
11 

12 

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  dignity10  is  the  first  legal  instrument  at  Community 
level  concerning  the  content  of  audiovisual  and  information  services  covering  all 
forms of delivery, from broadcasting to the Internet. 

By  Decision  No  276/1999/EC11,  the  European  Parliament  and  the  Council  adopted  a 
multi-annual  Community  Action  plan  on  promoting  safer  use  of  the  Internet  by 
combating illegal and harmful content on global networks (the "Safer Internet Action 
Plan"). 

Decision No 1151/2003/EC of the European Parliament and the Council 12 extended 
the  Safer  Internet  Action  Plan  for  two  years  and  amended  its  scope  to  include 
measures  to  encourage  exchange  of  information  and  coordination  with  the  relevant 
actors at national level as well as special provisions for the accession countries. 

OJ C […], […], p. […] 
OJ C […], […], p. […] 
OJ C […], […], p. […] 
OJ L 270, 7.10.1998, p. 48. 
OJ  L  33,  6.2.1999  p.  1.  Decision  as 
(OJ L 284, 31.10.2003, p. 1). 
OJ L 162, 1.7.2003, p. 1. 

last  amended  by  Regulation  (EC)  No  1882/2003 

5 

 
 
  
 
                                                 
 
 
 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Directive 2000/31/EC of the European Parliament and the Council of 8 June 2000 on 
certain  legal  aspects  of  information  society  services,  in  particular  electronic 
commerce,  in  the  Internal  Market13  clarifies  some  legal  concepts  and  harmonises 
certain aspects in order to enable information society services to fully benefit from the 
internal  market  principles.  A  number  of  the  provisions  of  Directive  2000/31/EC  are 
also  relevant  to  the  protection  of  minors  and  human  dignity,  in  particular  Article 
16(1)(e), according to which Member States and the Commission are to encourage the 
drawing up of codes of conduct regarding the protection of minors and human dignity. 

The  changing  media  landscape,  resulting  from  new  technologies  and  media 
innovation,  makes  it  necessary  to  teach  children,  and  also  parents,  to  use  the  media 
effectively. 

In the public consultation concerning 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 broadcasting activities14, 
it  was  suggested  that  media  literacy  be  included  among  the  subjects  covered  by 
Recommendation 98/560/EC. 

The  Commission  encourages  cooperation  and  the  sharing  of  experience  and  good 
practices between (self)regulatory bodies, which deal with the rating or classification 
of  audiovisual  content,  with  a  view  to  enable  all  viewers,  but  especially  parents  and 
teachers, to assess the content of programmes. 

As  suggested  during  the  public  consultation  concerning  Directive  97/36/EC,  it  is 
appropriate for the right of reply to apply to all electronic media. 

The Council resolution of 5 October 1995 on the image of women and men portrayed 
in advertising and the media15 which invites the Member States and the Commission 
to  take  adequate  measures  to  promote  a  diversified  and  realistic  picture  of  the  skills 
and potential of women and men in society. 

(10)  When tabling its proposal for a Council Directive implementing the principle of equal 
treatment  between  women  and  men  in  the  access  to  and  supply  of  goods  and 
services16,  the  Commission  noted  that  the  portrayal  of  the  sexes  in  the  media  and  in 
advertising raises important questions about the protection of the dignity of men and 
women, but concluded that it would not be appropriate to  address these questions in 
that proposal.  

(11) 

It  is  appropriate  to  seek  conciliation  between  the  principle  of  protection  of  human 
dignity and free speech through the adoption by the Members States of a cross-media 
approach explicitly aimed at encouraging the industry to avoid and to combat any type 
of discrimination based on sex, racial or ethnic origin, religion or belief, disability, age 
or sexual orientation in all media. 

13 
14 
15 
16 

OJ L 178, 17.7.2000, p. 1. 
OJ L 202, 30. 7. 1997, p. 60. 
OJ C 296, 10.11.1995, p. 15-16 
COM(2003) 657. 

6 

 
 
  
 
                                                 
(12)  This  Recommendation  should  complement  Recommendation  98/560/EC  in  order  to 

take account of technological developments, 

I. RECOMMEND that the Member States foster a climate of confidence which will promote 
the development of the audiovisual and information services industry by: 

(1) 

(2) 

considering the introduction of measures into their domestic law or practice in order 
to ensure the right  of  reply across all media,  without  prejudice to the possibility of 
adapting the manner in which it is exercised to take into account the particularities of 
each type of medium; 

promoting, in order to encourage the take-up of technological developments and in 
addition  to  and  consistent  with  existing  legal  and  other  measures  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  among 
parents, educators and teachers of the potential of the new services and of the 
means whereby they may be made safe for minors, in particular through media 
literacy or media education programmes. 

action  to  facilitate,  where  appropriate  and  necessary,  identification  of,  and 
access  to,  quality  content  and  services  for  minors,  including  through  the 
provision of means of access in educational establishments and public places. 

(3) 

encouraging  industry  to  avoid  discrimination  based  on  sex,  racial  or  ethnic  origin, 
religion  or  belief,  disability,  age  or  sexual  orientation  in  all  media,  and  to  combat 
such discrimination. 

II. RECOMMEND that the industries and parties concerned: 

(1) 

(2) 

develop positive measures for the benefit of minors, including initiatives to facilitate 
their wider access to audiovisual and information services, while avoiding potentially 
harmful  content,  including  a  ‘bottom-up’  harmonisation  through  cooperation 
between self-regulatory and coregulatory bodies in the Member States, and through 
the  exchange  of  best  practices  concerning  such  issues  as  a  system  of  common, 
descriptive symbols which would help viewers to assess the content of programmes; 

develop  effective  measures  to  avoid  discrimination  based  on  sex,  racial  or  ethnic 
origin,  religion  or  belief,  disability,  age  or  sexual  orientation  in  all  media,  and  to 
combat  such  discrimination  and  promote  a  diversified  and  realistic  picture  of  the 
skills and potential of women and men in society. 

Done at Brussels, […] 

For the European Parliament 
The President 

For the Council 
The President 

7 

 
 
  
 
ANNEX 

INDICATIVE  GUIDELINES  FOR  THE  IMPLEMENTATION,  AT  NATIONAL  LEVEL, 
OF  MEASURES  IN  THE  DOMESTIC  LAW  OR  PRACTICE  SO  AS  TO  ENSURE  THE 
RIGHT OF REPLY ACROSS ALL MEDIA 

Objective: introducing measures in the domestic law or practice of the Member States in order 
to ensure the right of reply across all media, without prejudice to the possibility to adjust its 
exercise to the particularities of each type of medium. 

– 

– 

– 

– 

– 

Without  prejudice  to  other  provisions  adopted  by  the  Member  States  under  civil, 
administrative or criminal law, any natural or legal person, regardless of nationality, 
whose  legitimate  interests,  in  particular,  but  not  limited  to,  reputation  and  good 
name, have been affected by an assertion of facts in a publication or transmission 
should  have  a  right  of  reply  or  equivalent  remedies.  Member  States  should  ensure 
that the actual exercise of the right of reply or equivalent remedies is not hindered by 
the  imposition  of  unreasonable  terms  or  conditions.  The  reply  should  be  within  a 
reasonable time subsequent to the request being substantiated and at a time and in a 
manner appropriate to the publication or transmission to which the request refers. 

A right of reply or equivalent remedies should exist in relation to all media under the 
jurisdiction of a Member State. 

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

An application for exercise of the right of reply or the equivalent remedies should be 
rejected if the claimant does not have a legitimate interest in the publication of such a 
reply, or if the reply would involve a punishable act or transgress standards of public 
decency. 

Provision should be made for procedures whereby disputes as to the exercise of the 
right of reply or the equivalent remedies could be subject to judicial review. 

8