Amended 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 competitivenes of the european audiovisual and information services industry (presented by the Commission pursuant to Article 250 (2) of the EC-Treaty)
Date: 2006-01-20
Institutions: European Commission
Subjects: audiovisual industry, child protection, competitiveness, fundamental rights, information industry

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 20.1.2006 
COM(2006) 31 final 

2004/0117 (COD) 

Amended 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 COMPETITIVENES OF THE EUROPEAN 
AUDIOVISUAL AND INFORMATION SERVICES INDUSTRY 

(presented by the Commission pursuant to Article 250 (2) 
of the EC-Treaty) 

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2004/0117 (COD) 

Amended 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 COMPETITIVENES OF THE EUROPEAN 
AUDIOVISUAL AND INFORMATION SERVICES INDUSTRY 

1. 

BACKGROUND 

Transmission of the Proposal to the Council and the European  
Parliament COM(2004) 341 final – 2004/0117 (COD) 
in accordance with article 157(1) of the Treaty 

7 May 2004 

Opinion of the European Economic and Social Committee 

9 February 2005 

Opinion of the Committee of Regions 

no opinion 

Opinion of the European Parliament - first reading 

7 September 2005 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The proposal is 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. The proposal 
is a follow-up to the Second evaluation report from the Commission to the Council and the 
European  Parliament  on  the  application  of  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. 

3. 

COMMISSION OPINION ON THE AMENDMENTS ADOPTED BY THE PARLIAMENT 

3.1. 

Amendments accepted by the Commission 

Amendment 1, limiting the scope of the Recommendation to “European audiovisual and on-
line information services industry”. 

Amendment  21,  stating  that  nothing  in  this  Recommendation  prevents  Member  States  from 
applying their constitutional provisions and other legislation and legal practices regarding free 
speech. 

Amendment  25,  stating  that  Member  States  should  promoting  a  responsible  attitude  on  the 
part  of  professionals,  intermediaries  and  users  of  new  communication  media  such  as  the 

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Internet by: encouraging vigilance and the reporting of pages considered illegal; drawing up a 
code of conduct in cooperation with professionals and regulatory authorities at  national and 
European level; and by encouraging the audiovisual and on-line information services industry, 
without  infringing  freedom  of  opinion  or  of  the  press,  to  avoid  all  discrimination  based  on 
sex,  racial  or  ethnic  origin,  religion  or  belief,  disability,  age  or  sexual  orientation,  in  all 
audiovisual and on-line information services, and to combat all such discrimination.  

Amendment 35, recommending that the Member States submit a report to the Commission on 
measures taken in application of this Recommendation two years after its adoption. 

3.2. 

Amendments accepted in part or principle by the Commission 

As regards children’s rights, the Commission can accept in principle amendment 2 subject to 
the deletion of the part: “incorporated in Part II of the Treaty establishing a Constitution for 
Europe” This deletion is necessary since no reference to the Treaty establishing a Constitution 
can as yet be made. 

The  Commission  can  accept  in  principle  amendment  4  subject  to  the  deletion  of  the  part: 
“Human dignity is inalienable; it does not admit any exclusion or limitation and it constitutes 
the foundation and origin of all legal instruments drawn up at national and international level 
to protect human rights;”. 

The Commission can accept in principle amendment 6 subject to the deletion of the part: “the 
adoption of measures preventing the circulation of illegal content” This deletion is necessary 
since adopting such measures is covered by the Third Pillar. 

The  Commission  can  accept  in  principle  amendment  7  subject  to  the  following  rewording: 
“The continuing development of new information and communication technologies makes it 
urgent  for  the  European  Community  to  ensure  full  and  adequate  protection  for  citizens’ 
interests in this field, on the one hand by guaranteeing the free delivery and free provision of 
audiovisual and information services and on the other by ensuring that their content is legal, 
respects  the  principle  of  human  dignity  and  does  not  impair  the  overall  development  of 
minors.” 

The  Commission  can  accept  amendment  8  subject  to  the  following  rewording:  “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  is  the  first  legal  instrument  at  Community  level  which  addresses  issues  of 
protection  of  minors  and  of  human  dignity  in  relation  to  audiovisual  and  information 
services  made  available  to  the  public,  whatever  the  means  of  conveyance.  Article  22  of 
Council  Directive  89/552/EEC1  on  television  without  frontiers  has  already  specifically 
addressed  the  question  of  the  protection  of  minors  and  human  dignity  in  television 
broadcasting  activities;”.  This  brings  it  more  in  line  with  Recital  5  of  the  1998 
Recommendation. 

The Commission can accept amendment 9 subject to the addition of the following part: “Such 
actions  should  take  into  account  the  balance  between  both  the  principle  of  protection  of 
human  dignity  and  the  principle  of  freedom  of  expression,  in  particular  with  respect  to 
Member  States’  responsibility  for  defining  the  notion  of  incitement  to  hatred  or 
discrimination in accordance with their national legislation and moral values.” 

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The  Commission  can  accept  amendment  10  subject  to  the  following  rewording:  “It  is 
suggested  that  the  Council  and  the  Commission  should  pay  special  attention  to  the 
implementation  of  this  recommendation  when  revising,  negotiating  or  concluding  new 
partnership  agreements  or  new  cooperation  programmes  with  third  countries,  bearing  in 
mind the global character of producers, distributors or providers of audiovisual content and 
Internet  access;”.  This  rewording  is  necessary  because,  in  the  context  of  negotiations  with 
third  countries,  the  Commission  is  working  within  the  framework  of  negotiating  directives 
adopted by the Council as well as a number of other constraints. 

The  Commission  can  accept  amendment  11  subject  to  the  deletion  of  the  part:  “since 
prevention and greater parental control will always be the best form of protection against the 
dangers  of  the  Internet;”.  The  phrase  “always  be  the  best”  is  too  absolute  and  therefore 
unsuitable. 

The  Commission  can  accept  amendment  12  subject  to  the  following  rewording:  “On  the 
whole, self-regulation of the audiovisual sector is proving an effective additional measure, but 
it is not sufficient to protect minors from messages with harmful content. The development of 
a European audiovisual area based on freedom of expression and respect for citizens’ rights, 
should  be  based  on  a  continuous  dialogue  between  national  and  European  legislators, 
regulatory authorities, industries, associations, citizens and civil society;”. 

The Commission can accept amendment 14 subject to the following rewording: “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  activities  ("Television  without  Frontiers" 
Directive), it was suggested that the need to adopt measures in relation to media literacy be 
included  among  the  subjects  covered  by  Recommendation  98/560/EC;”.  “Media  literacy”  is 
the preferred term. 

The  Commission  can  accept  amendment  15  subject  to  the  addition  of  the  word  “existing” 
between the words “between” and “self- and co-regulatory bodies”. 

The  Commission  can  accept  amendment  16  subject  to  the  following  rewording:  “(8)  As 
suggested during the public consultation concerning Directive 97/36/EC, it is appropriate for 
the right of reply or equivalent remedies to apply to on-line media, and to take into account 
the specific features of the medium and service concerned.” 

The  Commission  can  accept  amendment  18  subject  to  the  following  rewording:  “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 services, 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,  in  the 
light of other fundamental rights, including the freedom and pluralism of the media, it would 
not be appropriate to address these questions in that proposal but that it should take stock of 
these questions and, if necessary, take appropriate measures.” 

The Commission can accept amendment 19 subject to the deletion of the part: “Even though 
regulation  is  not  an  option,  the  media  are  nevertheless  able  to  ban  discrimination  under 
codes of practice promoting voluntary self-regulation, or to enforce such a ban independently 
of their codes.” as well as deletion of the word “therefore” in the next sentence. 

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The  Commission  can  accept  amendment  20  subject  to  the  deletion  of  the  part  “such  as 
newspapers, magazines and, particularly, video games,”. 

The  Commission  can  accept  amendment  22  subject 
the  following  rewording: 
“I. RECOMMEND that the Member States, in the interests of promoting the development of 
the  audiovisual  and  on-line  information  services  industry,  take  the  necessary  measures  to 
ensure the protection of minors and human dignity in all audiovisual and on-line information 
services, by:”. 

to 

The Commission can accept amendment 23 subject to the following rewording: 

“(1) considering the introduction of measures into their domestic law or practice regarding 
the  right  of  reply  or  equivalent  remedies  in  relation  to  online  media  with  due  regard  for 
their  domestic  and  constitutional  legislative  provisions  and  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; 

(2) promoting, in order to encourage the take-up of technological developments, 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  online 
information services, notably by improving the level of awareness among parents, teachers 
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. 

Examples of possible actions concerning media literacy are outlined in Annex II” 

and  subject  to  the  following  provisions  being  moved  to  Annex  II,  “Examples  of  possible 
actions concerning media literacy”: 

“Annex II 

Examples of possible actions concerning media literacy: 

-  continuing  education  of  educators  and  teachers,  in  liaison  with  child  protection 
associations,  on  how  to  use  the Internet in  the context  of  school  education and on teaching 
methods for safe (secure) use which children must be taught, 

- introduction of specific Internet training aimed at children from a very early age, including 
sessions open to parents, so as to explain to children and parents how to use the Internet and 
how to avoid the pitfalls and dangers, 

-  an  integrated  educational  approach  forming  a  permanent  part  of  school  curricula,  and 
media literacy programmes, so as to maintain awareness of the dangers of the Internet, with 
particular regard to chat rooms and forums, 

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-  organisation  of  national  information  campaigns  aimed  at  citizens,  involving  all 
communications media, to alert public opinion to the dangers of the Internet and the risk of 
criminal  penalties  (information  about  the  possibility  of  brining  complaints  or  activating 
parental  control).  Specific  campaigns  could  be  aimed  at  target  groups  such  as  schools, 
parents" associations, users, etc., 

- distribution of information packs on the dangers of the Internet ("How to surf the Internet 
safely",  "how  to  filter  unwanted  messages")  and  on  the  use  of  hotlines  to  which  reports  or 
complaints concerning harmful or illegal sites can be made, 

- adequate measures to establish or improve the performance of telephone hotlines, so as to 
make  it  easier  to  lodge  complaints  about  harmful  sites  and  make  it  possible  to  report  their 
existence. 

-  action  to  allow  one  of  the  most  serious  offences  against  children's  dignity,  child 
pornography on the Internet, to be combated effectively; 

-  publicity  campaigns  designed  to  condemn  violence  against  minors  and  to  help  victims  by 
offering psychological, moral and practical support.” 

The  Commission  can  accept  amendment  24  subject  to  the  changes  and  rewording  in 
amendment 23. 

The  Commission  can  accept  in  principle  amendment  26,  subject  to  the  deletion  of  the  part 
“considering the inclusion in their legal systems of a system of joint or cascading liability for 
Internet crimes;” since this is covered by the Third Pillar and goes beyond the scope of the 
Recommendation; and subject to the follow rewording of the fourth paragraph: “establishing 
a  single  telephone  line,  redirected  to  national  services,  for  the  reporting  of  illegal  and/or 
suspicious activities on the web;”. 

The Commission can accept in part, amendment 29 subject to the following rewording: 

“(1) develop positive measures for the benefit of minors, including initiatives to facilitate their 
wider  access  to  audiovisual  and  online  information  services,  while  avoiding  potentially 
harmful  content.  This  could  include  a  harmonisation  through  cooperation  between 
regulatory, self-regulatory and co-regulatory bodies of the Member States, and through the 
exchange  of  best  practices  concerning  such  issues  as  a  system  of  common  descriptive 
symbols  indicating  the  age  category  and/or  which  aspects  of  the  content  have  led  to  a 
certain age recommendation, which would help users to assess the content of audiovisual 
and  online  information  services.  This  could  for  instance  take  place  through  the  possible 
actions as outlined in Annex III.” 

“ANNEX III 

Examples of possible actions by the industries and the parties concerned for the benefit of 
minors: 

- the systematic provision of an effective and easy-to-use filtering system for users at the time 
of subscription to an access provider and developing effective filtering solutions, taking into 
account technological progress allowing Internet access via mobile telephones; 

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- offering access services specifically intended specifically for children and equipped with an 
automatic filtering system operated by access providers and by mobile telephone operators;  

-  introducing  incentives  to  provide  a  regularly  updated  description  of  the  available  sites, 
making it easier to classify sites using abbreviations common to all Member States in order to 
alert users to the possible harmful content of sites visited;  

- posting warning banners on all search engines drawing attention to possible dangers and to 
the availability of telephone hotlines.  

The Commission can accept in principle amendment 30 subject to the following rewording: 
“1a) examine the possibility of creating filters which would prevent material containing child 
pornography or offending against human dignity from passing through the Internet;”. 

The  Commission  can  accept  in  principle  amendment  31  subject  to  the  deletion  of  the  part 
“using  protocols  such  as  PICS  (Platform  for  Internet  Content  Selection)”  since  mentioning 
specific protocols which may at one point become obsolete, does not seem appropriate. 

The Commission can accept in principle amendment 33 subject to the following rewording: 

“IIa. NOTE that the Commission: 

(1)  intends  to  promote,  in  connection  with  the  2005-2008  multiannual  Community 
programme on promoting safer use of the Internet and new online technologies, information 
actions  aimed  at  citizens  European-wide,  using  all  communications  media,  to  inform  the 
public  about  the  risks  of  the  Internet,  how  to  use  it  responsibly  and  safely,  how  to  make 
complaints  and  how  to  activate  parental  control.  Specific  campaigns  could  be  aimed  at 
target groups such as schools, parents' associations and users, 

(2)  intends  to  explore  the  possibility  of  introducing  a  European  freephone  number,  or  of 
extending  an  existing  service,  to  assist  Internet  users  by  directing  them  to  available 
complaints mechanisms and information resources and providing information for parents 
about the effectiveness of filtering software, 

(3)  intends  to  explore  the  possibility  of  supporting  the  establishment  of  a  generic  second 
level  domain  name  reserved  for  monitored  sites  committed  to  respecting  minors  and  their 
rights (.KID.eu for example), 

(4)  continues  to  maintain  a  constructive  and  ongoing  dialogue  with  content  providers’ 
organisations, consumer organisations and all parties concerned, 

(5) intends to facilitate and support the formation of networks by self-regulatory bodies and 
the  exchanging  of  experience  among  them,  so  as  to  assess  the  effectiveness  of  codes  of 
conduct  and  approaches  based  on  self-regulation  in  order  to  ensure  the  highest  possible 
standards of protection for minors.” 

The  Commission  can  accept  in  principle  amendment  36  subject  to  the  deletion  of  the 
inappropriate part “including binding legislation at European level”. 

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The Commission can accept in principle amendment 37 subject to the following rewording: 
“MINIMUM  PRINCIPLES  FOR  THE  IMPLEMENTATION,  AT  NATIONAL  LEVEL,  OF 
measures  in  the  domestic  law  or  practice  so  as  to  ensure  the  right  of  reply  or  equivalent 
remedies in relation to online media”.  

The  Commission  can  accept  parts  of  Amendment  38,  in  combination  with  some  rewording 
and  also  moving  some  parts.  The  (complete)  text  which  would  be  acceptable  to  the 
Commission would read as follows: 

“ANNEX 1 

Objective:  introducing  measures  in  the  domestic  law  or  practice  of  the  Member  States  in 
order to ensure the right of reply or equivalent remedies in relation to online media, with 
due  regard  for  their  domestic  and  constitutional  legislative  provisions  and  without 
prejudice  to  the  possibility  to  adjust  its  exercise  to  the  particularities  of  each  type  of 
medium. 

The term "medium" refers to any means of communication for dissemination to the public 
of  edited  information  online  such  as  newspapers,  periodicals,  radio,  television  and  web-
based news services. 

–  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.  

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

–  Member  States  should  adopt  the  measures  needed  to  establish  the  right  of  reply  or 
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. 

-  the  right  of  reply  can  be  ensured  not  only  through  legislation,  but  also  through  co-
regulatory or self-regulatory measures; 

- the right of reply is a particularly appropriate remedy in the on-line environment because it 
allows for the instant correction of contested information and it is technically easy to attach 
the replies from the persons affected. However, 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. 

– 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  review  by  the  courts  or  similar 
independent bodies. 

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–  An  application  for  exercise  of  the  right  of  reply  or  the  equivalent  remedies  may  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,  would  render  the  content  provider 
liable to civil law proceedings or would transgress standards of public decency. 

- the right of reply is without prejudice to other remedies available to persons whose right to 
dignity, honour, reputation or privacy have been breached by the media. 

- Member States shall ensure that the effective exercise of the right of reply (or equivalent 
remedies) and the right of freedom of expression is not unjustifiably constrained.” 

3.3. 

Conclusion 

Pursuant to Article 250(2), of the EC Treaty, the Commission amends its proposals as set out 
above. 

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