Common Position (EC) No 24/2006 of 18 September 2006 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Recommendation of the European Parliament and of the Council on the protection of minors and human dignity and on the right of reply in relation to the competitiveness of the European audiovisual and on-line information services industry
Date: 2006-09-18
Institutions: Council of the European Union
Subjects: European audiovisual area, Internet, broadcasting, competitiveness, freedom of self-determination, infancy, law relating to information

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COMMON POSITION (EC) No 24/2006

adopted by the Council on 18 September 2006

with a view to the adoption of Recommendation 2006/…/EC of the European Parliament and of
the Council of … on the protection of minors and human dignity and on the right of reply in rela-
tion to the competitiveness of the European audiovisual and on-line information services industry

(2006/C 295 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 157 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Economic and
Social Committee (1),

(5)

After consulting the Committee of the Regions,

Acting in accordance with the procedure referred to in
Article 251 of the Treaty (2),

Whereas:

(1)

(2)

(3)

(4)

The Charter of Fundamental Rights of
the European
Union (3) (‘the Charter’) declares in Article 1 the inviol-
it must be
ability of human dignity, providing that
the Charter
respected and protected. Article 24 of
provides that children have the right to such protection
and care as is necessary for their well-being and that in
all actions relating to children, whether taken by public
authorities or private institutions, the child's best inter-
ests must be a primary consideration.

The European Union should gear its political action to
preventing any form of violation of the principle of
respect for human dignity.

(6)

Legislative measures need to be enacted at Union level
on the protection of the physical, mental and moral
development of minors in relation to the content of all
audiovisual and information services and the protection
of minors
adult
programmes or services.

from access

inappropriate

to

The constant development of new information and
communication technologies makes it urgent
for the
Community to ensure full and adequate protection for
citizens' interests in this field on the one hand, by guar-
anteeing the free delivery and free provision of informa-
tion services and, on the other hand, by ensuring that

their content is legal, respects the principle of human
dignity and does not impair the overall development of
minors.

The Community has already intervened in the field of
audiovisual and information services in order to create
the necessary conditions to ensure the free movement of
television broadcasts and other information services, in
compliance with the principles of free competition and
freedom of expression and information, but it should act
with greater determination in this area with the aim of
adopting measures to protect consumers from incite-
ment to discrimination based on sex, racial or ethnic
origin, religion or belief, disability, age or sexual orienta-
tion and of combating any such discrimination. Such
action should strike a balance between the protection of
rights on the one hand and freedom of
individual
expression on the other,
in particular with respect to
Member States' responsibility for defining the notion of
to hatred or discrimination in accordance
incitement
with their national legislation and moral values.

is the first legal

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 (4)
instrument at
Community level which in its recital (5) addresses issues
of the protection of minors and of human dignity in
relation to audiovisual and information services made
available to the public, whatever the means of convey-
ance. Article 22 of Council Directive 89/552/EEC of
3 October 1989 on the coordination of certain provi-
sions laid down by Law, Regulation or Administrative
Action in Member States concerning the pursuit of tele-
vision broadcasting activities (5)
(‘Television without
Frontiers Directive’) has already specifically addressed the
question of the protection of minors and human dignity
in television broadcasting activities.

(1) OJ C 221, 8.9.2005, p. 87.
(2) Opinion of the European Parliament of 7 September 2005 (OJ C
193 E, 17.8.2006, p. 217), Council Common Position of 18
September 2006 and Position of the European Parliament of … (not
yet published in the Official Journal).

(3) OJ C 364, 18.12.2000, p. 1.

(4) OJ L 270, 7.10.1998, p. 48.
(5) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive
97/36/EC of the European Parliament and of the Council (OJ L 202,
30.7.1997, p. 60).

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(7)

(8)

(9)

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 coopera-
tion programmes with third countries, bearing in mind
the global character of producers, distributors or provi-
ders of audiovisual content and Internet access.

By Decision No 276/1999/EC (1), the European Parlia-
ment and the Council adopted a multiannual Com-
munity 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 of the Council (2) 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.

(10) 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 (3) 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 provi-
sions 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.

(11)

The changing media landscape, resulting from new tech-
nologies and media innovation, makes it necessary to
teach children, and also parents, teachers and trainers to
use audiovisual and on-line information services effec-
tively.

(12) 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 citi-
zens' rights should be based on continuous dialogue
between national and European legislators, regulatory

(1) Decision No 276/1999/EC of the European Parliament and of the
Council of 25 January 1999 adopting a multiannual Community
action plan on promoting safer use of the Internet by combating
illegal and harmful content on global networks (OJ L 33, 6.2.1999,
p. 1). Decision as last amended by Decision No 787/2004/EC (OJ L
138, 30.4.2004, p. 12).

(2) Decision No 1151/2003/EC of the European Parliament and of the
Council of 16 June 2003 amending Decision No 276/1999/EC
adopting a multiannual Community action plan on promoting safer
use of the Internet by combating illegal and harmful content on
global networks (OJ L 162, 1.7.2003, p. 1).

(3) OJ L 178, 17.7.2000, p. 1.
(4) OJ L 202, 30.7.1997, p. 60.

authorities,
society.

industries, associations, citizens and civil

(13)

(14)

30

the

June

1997

public

amending

consultation

In
concerning Directive
97/36/EC of the European Parliament and of the Council
of
Council
Directive 89/552/EEC on the coordination of certain
provisions laid down by law, regulation or administra-
tive action in Member States concerning the pursuit of
television broadcasting activities (4), it was suggested that
the need to adopt measures in relation to media literacy
be included among the subjects covered by Recommen-
dation 98/560/EC.

The Commission encourages
cooperation and the
sharing of experience and best practices between existing
self- and co-regulatory bodies, which deal with the
rating or classification of audiovisual content, regardless
of the means by which it is delivered, with a view to
enabling all users, but especially parents, teachers and
trainers, to report illegal content and assess the content
of audiovisual and on-line information services, as well
as any legal content which could harm the physical,
mental or moral development of minors.

(15) As suggested during the public consultation concerning
it is appropriate for the right of
Directive 97/36/EC,
reply or equivalent remedies to apply to on-line media,
and to take into account the specific features of the
medium and service concerned.

(16)

The Council Resolution of 5 October 1995 on the
image of women and men portrayed in advertising and
the media (5) invites the Member States and the Commis-
sion to take adequate measures to promote a diversified
and realistic picture of the skills and potential of women
and men in society.

(17) When tabling its proposal for a Council Directive imple-
menting the principle of equal treatment between men
and women 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 funda-
mental 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.

(5) OJ C 296, 10.11.1995, p. 15.

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(18)

(19)

audiovisual

and on-line

The
information services
industry should be encouraged at Member State level to
avoid and to combat any type of discrimination based
religion or belief,
on sex,
disability, age or sexual orientation in such media and all
advertising,
techniques,
without infringing freedom of expression or of the press.

racial or ethnic origin,

new advertising

including

and
Its

This Recommendation covers new technological devel-
Recommendation
opments
complements
98/560/EC.
technological
scope, on account of
advances, includes audiovisual and on-line information
services made available to the public via fixed or mobile
electronic networks.

(20) Nothing in this Recommendation prevents Member
States from applying their constitutional provisions and
other legislation and legal practices regarding freedom of
expression,

HEREBY RECOMMEND THAT:

I. The Member States, in the interests of promoting the devel-
opment of the audiovisual and on-line information services
industry, take the necessary measures to ensure the protec-
tion of minors and human dignity in all audiovisual and on-
line information services by:

1. considering the introduction of measures

into their
domestic law or practice regarding the right of reply or
equivalent remedies in relation to on-line media, with
due regard for their domestic and constitutional legisla-
tive 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 techno-
logical developments,
in addition to and consistently
with existing legal and other measures regarding broad-
casting services, and in close cooperation with the
parties concerned:

(a) action to enable minors to make responsible use of
audiovisual and on-line information services, notably
by improving the level of awareness among parents,
teachers and trainers 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 and,
for
instance, by continuous training within school educa-
tion,

(b) action to facilitate, where appropriate and necessary,
the identification of, and access to, quality content
and services for minors, including through the provi-

sion of means of access in educational establishments
and public places,

(c) action to inform citizens more about the possibilities

offered by the Internet;

examples of possible actions concerning media literacy
are outlined in Annex II;

3. promoting a responsible attitude on the part of profes-
sionals, intermediaries and users of new communication
media such as the Internet by:

industry, without

(a) encouraging the audiovisual and on-line information
infringing freedom of
services
expression 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 such discrimination,

(b) encouraging vigilance and the reporting of pages
to

prejudice

without

illegal,
considered
Directive 2000/31/EC,

(c) drawing up a code of conduct in cooperation with
professionals and regulatory authorities at national
and Community level;

4. promoting measures

to combat all

illegal activities
harmful to minors on the Internet and make the Internet
a much more secure medium; consideration could be
given inter alia to the following measures:

(a) adopting a quality label for service providers, so that
users can easily check whether or not a given
provider subscribes to a code of conduct,

(b) establishing appropriate means for the reporting of
illegal and/or suspicious activities on the Internet.

II. The audiovisual and on-line information services industry

and other parties concerned:

1. develop positive measures for the benefit of minors,
including initiatives to facilitate their wider access to
audiovisual and on-line information services, while
avoiding potentially harmful content,
for instance by
means of filtering systems. Such measures could include
harmonisation through cooperation between the regula-
the
tory, self-regulatory and co-regulatory bodies of
Member States, and through the exchange of best prac-
tices concerning such issues as a system of common
descriptive symbols or warning messages 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 on-line
information services. This could take place, for instance,
through the actions outlined in Annex III;

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2. examine the possibility of creating filters which would
information offending against human dignity

prevent
from passing through the Internet;

3. develop measures to increase the use of content labelling

systems for material distributed over the Internet;

4. consider effective means of avoiding and combating
discrimination based on sex, racial or ethnic origin, reli-
gion or belief, disability, age or sexual orientation in
audiovisual and on-line information services and of
promoting a diversified and realistic picture of the skills
and potential of men and women in society.

TAKE 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 on-line technologies, informa-
tion actions aimed at citizens Europe-wide using all commu-
nications media, to inform the public about the benefits and
possible 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 complaint
mechanisms and information resources and providing infor-
mation for parents about the effectiveness of filtering soft-
ware;

3.

intends to explore the possibility of supporting the establish-
ment of a generic second level domain name reserved for
monitored sites committed to respecting minors and their
rights, such as .KID.eu;

4. continues to maintain a constructive and ongoing dialogue
with content providers' organisations, consumer organisa-
tions and all parties concerned;

5.

6.

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;

to the European Parliament and the
intends to submit
information supplied by the
Council, on the basis of
Member States, a report on the implementation and effec-
tiveness of the measures specified in this Recommendation,
and to review this Recommendation if and when the need
arises.

Done at …, on …

For the European Parliament

The President

…

For the Council

The President

…

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ANNEX I

INDICATIVE GUIDELINES FOR THE IMPLEMENTATION, AT NATIONAL LEVEL, OF MEASURES IN
DOMESTIC LAW OR PRACTICE SO AS TO ENSURE THE RIGHT OF REPLY OR EQUIVALENT REMEDIES
IN RELATION TO ON-LINE MEDIA

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 on-line media, with due regard for their domestic and constitutional provi-
sions and without prejudice to the possibility of adjusting 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 on-line
such as newspapers, periodicals, radio, television and Internet-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 the 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 right of reply or equivalent remedies should exist in relation to on-line 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 deter-
mine 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 of reply 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 an instant
response to contested information and it is technically easy to attach the replies from the persons affected. However, the
reply should be within a reasonable time after the request has been substantiated and at a time and in a manner appro-
priate 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.

An application for exercise of 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.

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ANNEX II

Examples of possible actions concerning media literacy:

(a) continuing education of teachers and trainers, in liaison with child protection associations, on using the Internet in
the context of school education so as to maintain awareness of the possible risks of the Internet with particular
regard to chatrooms and fora;

(b) introduction of specific Internet training aimed at children from a very early age, including sessions open to parents;

(c) an integrated educational approach forming part of school curricula and media literacy programmes, so as to

provide information on using the Internet responsibly;

(d) organisation of national campaigns aimed at citizens, involving all communications media, to provide information

on using the Internet responsibly;

(e) distribution of information packs on possible risks of the Internet (‘how to surf the Internet safely’, ‘how to filter
unwanted messages’) and the setting up of hotlines to which reports or complaints concerning harmful or illegal
content could be addressed;

(f) adequate measures to establish or improve the performance of telephone hotlines, so as to make it easier to lodge

complaints and to make it possible to report harmful or illegal content.

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ANNEX III

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

(a) systematically providing users with an effective, updatable and easy-to-use filtering system when they subscribe to an

access provider;

(b) offering access to services specifically intended for children which are equipped with automatic filtering systems

operated by access providers and mobile telephone operators;

(c) introducing incentives to provide a regularly updated description of the sites available, making it easier to classify

sites and assess their content;

(d) posting banners on search engines drawing attention to the availability both of information about responsible use of

the Internet and of telephone hotlines.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 30 April 2004 the Commission submitted to the European Parliament and to the Council a
proposal for a recommendation, based on Article 157 of the EC Treaty, on the protection of
minors and the right of reply in relation to the competitiveness of the audiovisual and information
services industry.

2. The European Economic and Social Committee delivered its opinion on 9 February 2005.

3. The European Parliament delivered its opinion at first reading on 7 September 2005.

4. The Commission submitted an amended proposal on 20 January 2006.

5. On 18 September 2006,

the Council adopted its common position in accordance with

Article 251 (2) of the EC Treaty.

II. OBJECTIVE

The proposal follows up on Council Recommendation 98/560/EC of 24 September1998 (1), the first
legal instrument at EU level which addresses issues of protection of minors and human dignity in rela-
tion to audiovisual and information services.

The proposed Recommendation calls on the Member States, industry and interested parties and the
Commission to enhance the protection of minors and to respect human dignity in both the broad-
casting sector and on the internet.
It proposes that Member States consider the introduction of
measures concerning the right of reply in relation to on-line media. The following issues are addressed
by the draft Recommendation:

— media literacy;

— rating or classification of audiovisual content;

— portrayal of the sexes in media and advertising;

— right of reply.

III. ANALYSIS OF THE COMMON POSITION

1. General comments

The Council's common position retains the main elements of the Commission's original proposal.
The main changes introduced by the Council aim to further refine the scope of the Recommenda-
tion. The Council has thus specified that the Recommendation covers ‘audiovisual and online infor-
mation services’ rather than ‘audiovisual and information services’, and has differentiated the scope
of the right of reply, which applies to online media, from the wider scope of the part of the Recom-
mendation dealing with the protection of minors.

2. European Parliament amendments

The Council has sought in its common position to take account of the European Parliament's
concerns and priorities and was able to accept most of Parliament's amendments.

in part or in principle, as did the Commission in its amended
The Council accepted in full,
proposal, amendments 1, 2, 4, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25,
26, 28, 29, 30, 31, 33, 35, 36, 37 and 38.

The Council wishes to make the following comments on those amendments where its position
slightly diverges from the Commission's modified proposal.

(1) OJ L 270, 7.10.1998, p. 48.

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Regarding amendments 23 and 29, the Council has followed the approach taken by the Commis-
sion, i.e. some parts of the respective amendments were transferred — in the form of examples of
possible actions to be taken in order to achieve the stated aims of the Recommendation — to
annexes. It has, however, reinserted some elements considered important by the European Parlia-
ment in the body of the Recommendation, in order to further approximate positions with Parlia-
ment.

Likewise, whilst trying to avoid the introduction of a burdensome reporting obligation, the Council
was able to accept the spirit of amendments 35 and 36, to meet Parliament's concerns that follow-
up be ensured.

The Council was unable to accept the part of amendment 37 replacing the term ‘indicative guide-
lines’ by ‘minimum principles’ in the section relating to the right of reply, as this term was consid-
ered excessive in the context of a recommendation.

Regarding amendment 26, last indent, the Council took the view that it was preferable not to focus
exclusively on the establishment of a single telephone hotline when envisaging the possible means
of reporting illegal or suspicious activities on the Internet, and has retained a more open-ended
wording.

The Council has followed the line taken by the Commission in its amended proposal and did not
include amendments 3, 5, 13, 27, 32 and 34 in its common position.

IV. CONCLUSION

The Council considers that, as a whole, its common position is fully in line with the objectives of the
Commission's amended proposal. The Council also considers that it has taken due account of the
objectives pursued by the European Parliament in its amendments to the Commission's proposal and
looks forward to an agreement with the Parliament in the near future with a view to the early adoption
of the Recommendation.