Opinion of the European Economic and Social Committee on the Proposal for a European Parliament and Council recommendation 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 (COM(2004) 341 final — 2004/0117 (COD))
Date: 2005-02-09
Institutions: European Economic and Social Committee
Subjects: EU Member State, EU office or agency, audiovisual industry, child protection, competitiveness, fundamental rights, impact study, information industry

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Opinion of the European Economic and Social Committee on the Proposal for a European Parlia-
ment and Council recommendation 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

(COM(2004) 341 final — 2004/0117 (COD))

(2005/C 221/17)

On 14 May 2004, the Council decided to consult the European Economic and Social Committee, under
Article 157 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 17 January 2005. The rapporteur
was Mr Pegado Liz.

At its 414th plenary session of 9 and 10 February 2005 (meeting of 9 February), the European Economic
and Social Committee adopted the following opinion by 73 votes to two:

1. Summary of the proposal for a recommendation

1.1 With this proposal for a recommendation (1), on the content of audiovisual and information
services, covering all forms of delivery, from broadcasting to the Internet, the Commission proposes to
follow up the second evaluation report, of 12 December 2003, on the application of the Council Recom-
mendation 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. (2)

1.2
The main reasons given for the need for this additional recommendation are, firstly, the challenges
posed by recent developments in technology, including the power of new computers and the fact that
broadband technologies allow distribution of content such as video on 3G mobile telephones. (3) Secondly,
the proliferation of illegal, harmful and undesirable content and conduct in all forms of digital broad-
casting, from radio and television to the Internet, continues to be a concern for the general public and in
particular parents and educationalists, the industry and law-makers.

1.3
Although the Commission has its own powers to draft recommendations in this field, which does
not fall within the scope of legislative harmonisation, wherever it deems this necessary to ensuring the
operation and development of the common market, it wished in this case, to involve the Council and the
European Parliament directly in drafting and adopting this document.

One of the recommendation's aims is to enhance the competitiveness of the European audiovisual and
information industry by promoting national frameworks aimed at achieving a comparable and effective
level of protection of minors and human dignity, and the Commission believes that the broader public
instigated by the European Parliament, together with the commitment of the Member States
debate,
meeting within the European Council will make it easier to fulfil this aim. The Commission therefore
proposes that Article 157 of the Treaty should be used as the legal basis for adopting the Recommenda-
tion.

1.4
In this Proposal for a Recommendation, the Commission hopes that the European Parliament and
the Council recommend that the Member States establish the legal or other conditions fostering a climate
of confidence which will promote the development of the audiovisual and information services industry.

To this end, it highlights four types of measures, with a view to:

(1) Doc. COM(2004) 341 final of 30.4.2004.
(2) Recommendation 98/560/EC published in OJ L 270 of 7.10.98; on this proposal, the Committee issued opinion CES
626/98 of 29 April 1998 (rapporteur: Mrs Jocelyn Barrow). In turn, the second evaluation report is contained in
Doc. COM(2003) 776 final.

(3) See the Commission Communication on Connecting Europe at high speed: recent developments in the sector of electronic
communications (COM(2004) 61 final) and OJ C 120 of 20.5.2005, rapporteur: Mr McDonagh; see also the Commis-
sion Communication on Mobile Broadband Services (COM(2004) 447 of 30.6.2004).

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a) ensuring the right of reply across all media, including the Internet, without prejudice to the possibility

of adjusting the way the right is exercised to the specific characteristics of each type of medium;

b) enabling minors to make responsible use of on-line audiovisual and information services, in particular
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;

c) facilitating 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;

d) encouraging the industry to avoid discrimination based on sex, racial or ethnic origin, religion or belief,

disability, age or sexual orientation in all media.

The Commission believes, furthermore, that the European Parliament and the Council must recom-

1.5
mend that the various industries and parties concerned

a) adopt initiatives to provide minors with broader access to audiovisual and information services, with
guarantees that programme content will be safe and monitored, while avoiding potentially harmful
content, including a ‘bottom-up’ harmonisation through cooperation between self-regulatory and co-
regulatory 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;

b) and avoid and combat all and any form of discrimination and promote a diversified and realistic picture

of the skills and potential of both women and men in society.

The Annex to the Proposal contains some indicative guidelines for the implementation, at national

1.6
level, of measures aimed at ensuring the right of reply across all media including:

— legitimate interest, regardless of nationality;

— time spans that are consistent with the exercise of this right;

— the option to appeal to the courts.

2. Background to the proposal

2.1
The issue of protecting minors against harmful content and the exercise of the right to reply in tele-
vision programmes appears for the first time in Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member
States concerning the pursuit of television broadcasting activities (4), amended by Directive 97/36/EC of the
European Parliament and Council, of 30 June 1997 (5) (known as the ‘Television without frontiers’ Direc-
tive).

2.2
Nevertheless, and as the Commission recalls, the first Community text that sought to introduce a
degree of regulation into the content of audiovisual and information services was the Recommendation of
24 September 1998 which, echoing the substance of the considerations contained in the Green Paper on
the Protection of minors and human dignity in audiovisual and information services of 16 October 1996 (6) and
the conclusions of the Resolution on illegal and harmful content on the Internet, of 17 February 1997 (7),
put forward a series of recommendations to the Member States, industry and the parties concerned, to
foster, mainly by means of self-regulation, a climate of confidence that would promote the development of
audiovisual and information services, ensuring a high level of protection of minors and of human dignity.

(4) Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regu-
lation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ L
298 of 17.10.1989, p. 23.

(5) 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 activities, OJ L 202 of 30.7.1997, p. 60.

(6) COM(96) 483 final, on which the EESC delivered an opinion. The rapporteur was Dame Jocelyn Barrow, in OJ L 287

of 22.9.1997, p. 11.
(7) OJ C 70 of 6.3.1997.

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As regards this important text, in its opinion of 29 April 1998, (8) the European Economic and
2.3
Social Committee drew attention to various crucial aspects relating to the principles, nature, scope and
content of any regulation that seeks to ensure the effective protection of minors and human dignity in the
it concluded by recommending a harmonised and integrated international
audiovisual media. In brief,
approach to regulation on audiovisual services. It highlighted the aspects of the use of content rating
systems and filtering software, clarification on responsibility for illegal and harmful content, recommending
initiatives to educate and to raise the awareness of parents, educators and teachers and called for greater
cooperation and coordination between European and international organisations. The opinion also
proposed that a European or preferably international framework be established for codes of conduct, guide-
lines and grass-roots measures to ensure the suitable protection of minors and of human dignity.

Following this initial text, several initiatives with similar concerns have been adopted at Community

2.4
level, by the Council and the Commission (9).

(8) Opinion in OJ C 214 of 10.7.1998. The rapporteur was Dame Jocelyn Barrow.
(9) The most important of these are:

a) Decision No 276/1999/EC of the European Parliament and of the Council of 25 January 1999 adopting a multi-
annual Community action plan on promoting safer use of the Internet by combating illegal and harmful content
on global networks, mainly as regards protecting children and minors (in OJ L 33 of 6.2.1999 amended by Deci-
sion 1151/2003/EC of 16 June 2003, in OJ L 162 of 1.7.2003, extending the action plan for two years).

b) the Commission Communication of 14 December 1999, on Principles and guidelines for the Community's audio-
visual policy in the digital age , which states that the framework must also guarantee effective protection of socie-
ty's general interests, such as the freedom of expression and right of reply, protection for authors and their works,
pluralism, consumer protection, the protection of minors and of human dignity and the promotion of linguistic
and cultural diversity (COM(1999) 657 final).

c) the Council Conclusions of 17 December 1999 on the protection of minors in the light of the development of
digital audiovisual services , which highlight the need to adapt and complement current systems for protecting
minors from harmful audiovisual content, in the light of ongoing technical, social and market developments (in
OJ C 8 of 12.1.2000);

d) Directive 2000/31/EC of 8 June 2000 on electronic commerce, which contains provisions relevant to the protec-
tion 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 (in OJ L 178 of 17.7.2000);

e) Commission Communication: Creating a Safer Information Society by improving the Security of Information
Infrastructures and Combating Computer-related Crime, which proposes an entire range of legislative and non-
legislative measures to react against infringements of privacy, unauthorised access, industrial sabotage and abuse
of intellectual property (COM(2000)890 final: rapporteur, Mr Dantin, and the Proposal for a Framework Decision
on attacks against information systems, which succeeded it (COM(2002) 173 final of 19.4.02 and the opinion of
28.11.01, in OJ C 48 of 21.1.02: Communication from the Commission to the Council, the European Parliament,
the Economic and Social Committee and the Committee of the Regions on network and information security:
proposal for a European policy approach: rapporteur, Mr Retureau.

f) Evaluation Report to the Council and the European Parliament on the application of Council Recommendation of
24 September 1998 concerning the protection of minors and human dignity, which describes the results
regarding the recommendation's application as ‘encouraging’. The report also, however, highlights the need for
users to be more closely involved and for more time to be allowed for fully applying the recommendation. These
points were highlighted in the Council conclusions of 23 July 2001 on the Commission's evaluation report (in OJ
C 213 of 31.7.2001.

g) the Fourth Report from the Commission on the application of Directive 89/553/EEC Television without Frontiers,
adopted on 6 January 2003, the annex to which, in its work programme for reviewing the directive, proposed
holding a public consultation which addressed, inter alia, the problems of protection of minors and the right of
reply (COM(2002) 778 final of 06.1.03. The public consultation was based on discussion papers published on the
Commission website: http://europa.eu.int/comm/avpolicy/regul/review-twf2003/consult_en.htm.

h) the second evaluation report on the Council recommendation of September 1998 referred to above and adopted
on 12 December 2003, which contains a critical analysis of the measures adopted by the Member States and at
EU level;

i) the Commission Communication on the Future of European Regulatory Audiovisual Policy, which sets out the
medium-term priorities for Community policy on regulating the sector under discussion against the backdrop of
an enlarged Europe and in which, taking into account the concerns expressed in the public consultation process
for the TWF Directive, the Commission referred to the need to update the Recommendation on the protection on
minors and human dignity, focusing on the development of self- and coregulatory models, in particular with a
view to the online environment, in order to ensure due respect for the principles of protection of minors and
public order. The Commission also announced that it would adopt the idea of a right of reply that applies to all
forms of media, and which could initially be enshrined in the Recommendation on the protection of minors and
human dignity, COM(2003) 784 final of 15.12.03.

j) the recent Proposal for a European Parliament and Council Decision on establishing a multiannual Community
programme on promoting safer use of the Internet and new online technologies focusing on the end-users – parti-
cularly parents, educators and children (COM(2004) 91 final of 12.3.04).

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The EESC too has taken a number of initiatives that have identical concerns. The most important of

2.5
these are:

a) the opinion on A programme for child protection on the Internet (10);

b) the opinion on the Commission Communication on Principles and guidelines for the community's

audiovisual policy in the digital age (11);

c) The opinions on Proposals for Decisions 276/1999/EC and 1151/2003/EC,

(respectively Doc.

COM(1998) 518 final and COM(2002) 152 final) (12);

d) the opinion on the Proposal for a European Parliament and Council decision on safer use of the Internet

(Doc. COM(2004) 91 final of 12.3.2004) (13).

The reader is referred to the considerations and recommendations contained in them.

3. General comments

3.1
The EESC welcomes the Commission initiative to extend and implement the EP and Council Recom-
mendation of 24 September 1998 in the light of the results of the second evaluation report on its imple-
mentation in key aspects such as the protection of minors and human dignity, combating social discrimina-
tion in any form and ensuring the right of reply across the media, including the Internet.

3.2
The EESC acknowledges that, in the current context, the Treaty does not grant the European Union
own powers to harmonise laws in the audiovisual sector but is unhappy at this state of affairs and recom-
mends that it be addressed in the next revision of the Treaties.

3.3
The EESC finds it illogical that, in order to protect minors and human dignity, to protect honour
and privacy in the media within the European Union, with the completely open borders provided for in
the TV without frontiers Directive, it should be necessary to invoke as a key factor not rights relating to the
personality as such, but ‘the development of the competitiveness of the European audiovisual and information
services industry’. Protecting this core of fundamental citizens' rights must not be seen as a merely incidental
aspect of achieving the aim of developing the audiovisual market.

The EESC does recognise, however, that given the aforementioned legal restrictions, the recommen-
3.4
dation, broadly in the terms drawn up by the Commission, is the best way of making progress on the
issues at stake. It also agrees with the legal basis suggested by the Commission for this recommendation
(Article 157 of the Treaty establishing the European Communities), which is in fact identical to the legal
basis used in the Council Recommendation of 24 September 1998 on developing 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 (14), complemented
by the present draft recommendation and by Council Decision of 20 December 2000 on the implementa-
tion of a programme to encourage the development, distribution and promotion of European audiovisual
works (MEDIA Plus — Development, distribution and promotion 2001-2005) (15).

The EESC reiterates the view expressed in the opinion (16) on the proposal for a Council recommenda-
3.5
tion on the protection of minors and human dignity in the audiovisual and information services industry (98/C
214/07), to the effect that the European audiovisual and information services industry can only achieve its
full potential in a climate of confidence which, in turn, can only be achieved by guaranteeing the protec-
tion of minors and human dignity.

(10) OJ C 48 of 28.2.2002 The rapporteur was Ms Davison.
(11) OJ C 14 of 16.1.2001. The rapporteurs were Mr Morgan and Mr Carroll.
(12) OJ C 214 of 10.7.1998. The rapporteur was Ms Drifthout-Zweijtzer and Opinion in OJ C 73/2003 of 26.3.2003.

The rapporteur was Ms Davison.

(13) OJ C 157 of 28.6.2005, adopted by the Plenary on 16.12.2004. The rapporteurs were Mr Retureau and Ms

Davison.

(14) OJ L 270 of 7.10.1998, p. 48
(15) OJ L 13 of 17.1.2001, p. 35. See also the recent proposal for a Decision on the MEDIA 2007 Programme,
COM(2004) 470 final of 14.7.2004 and the EESC opinion being drawn up by the rapporteur for this opinion.
(16) Opinion of the Economic and Social Committee on the Proposal for a Council Recommendation concerning the protection

of minors and human dignity in audiovisual and information services (98/C 214/07), OJ C 214 of 10.7.1998, p. 25.

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3.6
The EESC also confirms its belief that only a harmonised and integrated international approach to
the regulation of audiovisual services can result in the effective implementation of any protection measures,
in particular as regards aspects of the rating systems and filtering software and clarification on responsi-
bility for illegal and harmful content. Hence the Committee's renewed call for greater cooperation and
coordination between European and international organisations and its reiteration of the proposal to estab-
lish international codes of conduct, guidelines and grass roots measures for the adequate protection of
minors and human dignity.

3.7
The EESC draws attention in particular to the definition of the concept of human dignity provided
by the European Union's Charter of Fundamental Rights, which is an integral part of the European Consti-
tution (Article I-2) and to the need, in the context of this proposal for a Recommendation, for this concept
to be viewed in a way that is entirely consistent with the aim and the content of the aforementioned
Charter.

3.8
The EESC believes that effectively protecting minors and human dignity in the light of technological
developments in the audiovisual and information services industry requires, in particular, the promotion of
media literacy ‘to enable consumers to use the media in a manner geared to the values of society and to develop a
sense of judgment in these matters’ (17).

3.9 Where the Internet in particular is concerned, the EESC believes it to be crucial to coordinate poli-
cies and measures to promote literacy and the safe use of the Internet by minors, and consequently agrees
with the conclusions of the European Forum on Harmful and Illegal Cyber Content: Self-Regulation, User
Protection and Media Competence, organised by the Council of Europe on 28 November 2001 (18).

3.10
The EESC reiterates its support for self-regulation, where justified, and highlights the importance
of using co-regulatory models because these appear to be particularly effective for implementing rules on
protecting minors, as specifically mentioned in the Commission Communication, the Future of European
Regulatory Audiovisual Policy COM(2003) 784 final of 15 December 2003 (19).

3.11 Without prejudice to the vital
importance of initiatives to promote media literacy, the EESC
welcomes the idea of establishing Community criteria for describing and identifying audiovisual content
whilst stressing, however, in order to take account of specific cultural characteristics, that content should
be reviewed at national and regional level.

3.12
The EESC wishes to express its support for the vast majority of very positive innovations and
developments contained in the new Commission initiative, which represent significant progress in relation
to its previous Recommendation. Of these it would highlight:

a) the reference, in the first indent of point I(2) to media literacy and media education programmes;

b) the call for active encouragement to combat all and any form of discrimination, above and beyond a

purely passive concept of ‘avoiding’ such discrimination, in point I(3);

c) the idea of a ‘bottom-up’ harmonisation through cooperation between self-regulatory and co-regulatory
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
(point II(1));

d) and, in particular, the recommendation to ensure the right of reply across all media, including the
Internet, assuming that the same right will also apply to the Community institutions' own publications
and broadcasts.

3.13
further, in the following ways:

The EESC believes, however, that it should have been possible to take the recommended approach

(17) Paragraph 14 of the European Parliament Resolution on the Commission's Evaluation Report to the Council and the
European Parliament on the application of the Council Recommendation of 24 September 1998 concerning the
protection of minors and human dignity COM(2001) 106.

(18) European Forum on Harmful and Illegal Cyber Content: Self-Regulation, User Protection and Media Competence, 28

November 2001 (Human Rights Building).
(19) Commission Communication to the Council,

the European Economic and Social
Committee and the Committee of the Regions: the Future of European Regulatory Audiovisual Policy COM(2003)
784 final of 15.12.2003; see also the revised Draft Information Report on the current state of co-regulation and
self-regulation in the Single Market (INT/2004 of 16.11.2004). The rapporteur was Mr Vever.

the European Parliament,

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4. Specific comments

4.1 Protection of minors

4.1.1 Minors are not the only group requiring special protection from certain harmful and dangerous
content, involving in particular violence, pornography and paedophilia — this also applies to other more
sensitive or vulnerable groups, such as the elderly or persons with learning difficulties, and the recommen-
dation should also take these groups into account.

4.1.2
Various aspects relating to the protection of minors, raised by the EESC in its recent opinion on
the Proposal for a European Parliament and Council Decision on establishing a multi-annual Community
programme on promoting safer use of the Internet (20), should be seen as useful recommendations to the
Member States, to be incorporated into this Proposal for a Recommendation and including, in particular:

a) better training and information on the means of making Internet use safer;

b) holding Internet service providers liable and obliging them to comply immediately with any decision of
a legitimate authority ordering that that they should cease transmission of illegal, harmful or dangerous
programmes or content;

c) encouraging and supporting the introduction of hotlines, filtering technologies, content rating, and anti-

spam and spim measures;

d) making authors of Internet access software and server operating systems liable for protecting and main-
taining any systems sold against virus attacks, with the obligation to provide easy and accessible anti-
virus technology;

e) implementing systems to identify and provide information on harmful and dangerous content and the
withdrawal of all racist or xenophobic content or content which advocates crime, violence or hatred.

Specific concerns about Internet use must not mean, however, that less attention is paid to tradi-
4.1.3
tional forms of media, in particular radio and television broadcasts, where serious offences against vulner-
able members of the public, particularly minors, must be dealt with as a separate issue, either through self-
regulation or regulation by other bodies.

4.2 Protection of human dignity

4.2.1
Protecting human dignity in the media cannot be confined to banning all forms of discrimination.
Programmes with content that could undermine anyone's privacy or fundamental rights must also, where
this is justified by the potential effect on society, be discussed by the competent national authorities.

4.2.2

The Member States must also be recommended, in this area, to:

a) encourage the media to adopt precise and specific ethical rules to ensure due respect for privacy;

b) encourage the media to put in place self-regulatory mechanisms to which the victims of attacks on

privacy and human dignity can address complaints;

(20) See footnote 13

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c) set up independent bodies, including judicial bodies, to hear this type of complaint should the self-regu-

latory mechanisms prove ineffective;

d) establish a right to compensation for material and non-material damage which would at the same time
provide redress for victims and act as a deterrent for those responsible for serious and systematic
attacks on people's privacy and human dignity;

e) monitor programmes with content that could constitute attacks on privacy, human dignity and funda-

mental rights.

4.3 Right of reply

4.3.1
In addition to a right of reply, provision should also be made for a ‘right of correction’, with the
same general scope and in the same conditions, in order to combat false, incorrect or inaccurate content
that affects people's rights.

4.3.2
but also by the use of co-regulatory and self-regulatory measures.

It must be stated clearly that the right of reply can be guaranteed not only by legislative means

4.3.3

The Annex must include provisions on:

a) the precise and mandatory identification of cases in which publication of a reply or correction can be
rejected (as stated in Resolution 74/26 of the Council of Europe), and determination of a short deadline
within which any rejection must be made;

b) the principle that the reply must be given the same prominence in the place of publication or type of

broadcast as that in the publication/broadcast being replied to;

c) the principle that exercising the right of reply and the right of correction must be free of charge.

4.3.4
place of residence.

The first indent of the annex, which reads regardless of nationality should be expanded to read or of

5. Final comments

5.1
The EESC once again welcomes the proposal for a recommendation now being considered, with the
reservations stated in the 'specific comments' section and, given that technological innovation and progress
will create new challenges in terms of both quality and quantity, also suggests that an evaluation of the
recommendation's impact on Member States, industry and the other interested parties should be made,
four years after its adoption.

Bearing in mind the evaluation process referred to in the previous point, the EESC suggests that a
5.2
Monitoring Centre should be set up, with the task of systematically charting the measures promoted by the
Member States, by industry and parties involved in implementing this recommendation.

Brussels, 9 February 2005.

The president

of the European Economic and Social
Committee

Anne-Marie SIGMUND