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Fact sheets

Television Without Frontiers

Last updated 14th November 2006

If you cannot find the information you are looking for, please contact EPC Executive Director Angela Mills-Wade on Tel: +44 1865 310 732 or Heidi Lambert on Tel: +44 1245 476 265. Or email us at heidilambert@hlcltd.demon.co.uk. We will be updating this document as and when we have more information to add or to amend.

Please note that we have a table of MEP’s views on this directive available on request.

Latest developments

Culture Council agrees general approach

The Culture Council met on Monday 13th November to agree the General Approach to the audiovisual services directive.

The key points are as follows:

• Scope narrowed to ‘TV-like services’
• On the question of jurisdiction a change has been made to Article 3(1a) which has the effect of applying the co-operation procedure between Member States to cases where a particular service targets another Member State, rather than the activities of a broadcaster taken as a whole.
• Article 3 states that member States may adopt more detailed or stricter rules of general public interest.
• A new Recital clarified that the notion of rules of general public interest has been developed by the ECJ in its case law including, inter alia, rules on the protection of consumers, the protection of minors and cultural policy.
• On the issue of product placement it has been made clear in Article 3f that the starting point is a prohibition. There is a possibility for derogation from this general prohibition, but only for a limited list of programme types, and only according to a set of strict conditions. Slightly more flexible conditions apply to cases where the programme has been acquired from an independent programme maker. Children's programmes are cited specifically as an area where product placement is not permitted.
• Regarding quantitative advertising rules a change has been made in Article 11(2) to prevent the interruption of shorter children's programmes by advertising. In addition, the Commission will be required to give special attention to the question of advertising accompanying children's programmes in its report on the application of this Directive required by Article 26.
  The transmission of films made for television (excluding series, serials, and documentaries), cinematographic works and news programmes may be interrupted by advertising and/or teleshopping once for each period of 30 minutes.
  On the Qualitative side, advertising rules are not to prejudice respect for human dignity.
• There is an improvement in the Council text on co and self-regulation in Recital 25 stating that the provisions of the Directive should not disrupt or jeopardise current co- or self-regulatory initiatives which are already in place within Member States and which are working effectively.
• A technical improvement has been made to the Recital in footnote 9 (relationship with the e-commerce Directive) to clarify the text. It reads that Directive 2000/31/EC on certain aspects of information society services, in particular electronic commerce, in the Internal Market, applies fully except as otherwise provided for in this Directive. In the event of a conflict between a provision of Directive 2000/31/EC and a provision of this Directive, the provisions of this Directive should prevail, unless otherwise provided for in this Directive.

EP’s Lead Committee on AMS Directive Issues press release following key vote

The European Parliament’s Culture Committee was also working on the directive on Monday. We will pass on full details once we have fully analysed the many amendments that were tabled in just three hours (causing some confusion as to the detail). In the meantime, here is the EP news release which is their take on the meeting:

News release: A new approach to product placement: MEPs tackle broadcasting in the digital age

Yesterday, 13 November 2006, the Committee on Culture and Education (CULT) gave wide backing to a report on the so-called Audiovisual Media Services Directive. The draft legislation aims to bring the current directive - last updated in 1997 - into line with new developments in audiovisual technology and advertising, particularly the proceeding transition from analogue to digital broadcasting.

The current Commission proposal - intended to create a level playing field for public and private broadcasters and independent producers - aims to widen the scope of the directive as to include new media. Though CULT members broadly agreed with the Commission's thinking on this principle, they did not wholly endorse its suggested definition of audiovisual media services: to that effect, they opted to modify the concepts of "linear services" and "on demand services" in the draft legislation. The former refers to traditional television broadcasting "transmitted... according to a fixed programming schedule", while the latter comprises services such as web TV or video-on-demand - where the user requests the transmission of a given programme "on an individual basis."

In distinguishing between these two categories of audiovisual media services, both the Commission and the CULT Committee have highlighted the fact that they are seeking to subject providers of "on demand services" to only a minimum set of rules - linear services, on the other hand, are more thoroughly regulated.

A qualified "no" to product placement

In what has been considered the most controversial area of the present draft directive, the majority of MEPs backed a compromise amendment, which would see product placement prohibited - albeit with a number of important (and wide) derogations.

Product placement, which often qualifies as surreptitious advertising, would be banned in "news and current affairs programmes, programmes for children, documentaries [and] advisory programmes", according to the new Committee report. Member States could still permit it "in cinematographic works, films and series made for television and sports broadcasts", as well as in "cases of production aid where there is no payment but only provision of certain goods or services for free with a view to their inclusion in a programme." Even where they are allowed, however, programmes that feature product placement should never affect "the responsibility and editorial independence" of the broadcaster; nor should they "directly encourage the purchase or rental of goods or services" or give "undue prominence to the product in question"; lastly, viewers should be clearly notified of the existence of product placement in such programmes.

In addition, as MEPs contend - in line with the Commission's thinking - product placement containing tobacco products or cigarettes (or producers whose principal activity is the manufacture or sale of cigarettes and other tobacco products) should be comprehensively banned.

New rules on advertising

The Committee also voted to limit advertising breaks in "films made for television, cinematographic works, concerts, theatre plays and operas" to "once for each period of 45 minutes" - and not, as the Commission had proposed, every 35 minutes. Children's programming and news programmes, MEPs insist, should be interrupted for advertising only once for each period of 30 minutes - provided that such programmes exceed 30 minutes to begin with.

No tolerance for intolerance in commercials

Under the Commission's proposal, Member States would have to ensure that commercials aired by providers under their jurisdiction do not include or incite prejudice or discrimination. MEPs included a number of additional conditions, adding that commercials should not offend on the basis of gender, disability, age or sexual orientation - nor should they "violate human dignity."

The report, adopted by a majority of 26 votes against 1 with no abstentions, is scheduled for a plenary vote during the Parliament's December session in Strasbourg.

CULT rapporteur Ruth Hieronymi (EPP-ED, DE) was glad to report that the Council of Ministers, as joint legislator with Parliament, had reached "a general approach" on the directive on the very day of the Committee vote.

Previous updates:

UK regulator Ofcom comes out again against the AMS proposal

UK comms regulator Ofcom has warned that proposals to extend EU rules on the content of audiovisual services to new media platforms could stifle innovation as the proposals do not differentiate between platforms. Ofcom has commissioned a report from the consultancy used by the commission to carry out an impact assessment of Reding’s proposals to look more closely at the likely effects.

Tim Suter, Ofcom’s partner responsible for contents and standards believes that the ‘one-size-fits-all’ approach taken by the commission could have adverse effects.

“Our report focuses on three key areas – IPTV, mobile multimedia and online games – and its findings are worrying,” Suter said.

“Perhaps our greatest concern is that the definition used by the commission to define the services covered by the directive is too vague, leaving considerable regulatory uncertainty for many companies.”

Agriculture Council adopts Common Position

At its September meeting, the Agriculture Council adopted a common position on the protection of minors and human dignity, in the context of the AMS directive.

The draft recommendation calls on the Member States (the UK abstained), the industry and interested parties (viewers' associations), as well as the Commission, to enhance the protection of minors and human dignity in the broadcasting and internet sectors. It also recommends that the Member States consider the introduction of measures regarding the right of reply in relation to online media.

The draft recommendation addresses the following questions:

• media literacy (i.e. media education programmes);
• cooperation and sharing of experience and good practices between self-, co- and regulatory bodies, which deal with rating or classification of audiovisual content;
• action against discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in audiovisual and on-line services;
• right of reply in relation to on-line media.

AMS directive will stifle freedom of expression, warns US

The US freemarket think tank, Progress & Freedom Foundation has voiced the view, shared by some American Internet companies and advocates of free speech, that the new proposed AMS directive would stifle free expression on both sides of the Atlantic.

Meanwhile it appears that there is mounting opposition to product placement from some Member State Governments.

The UK Government continues to speak out against the extension of definition of the AMS directive which could see blogs and services like YouTube caught up in the legislation.

Health organisations muscle in on AMS

EPHA, the European Heart Network, Eurocare (the European Alcohol Policy Alliance, the Pharmaceutical Group of the EU, and the European Respiratory Society are jointly calling on the European Parliament to vote for a healthier media framework.

The five health organisations consider the revision of the TWFD/AMS as a key opportunity to impact on the consumption of unhealthy food, tobacco products and alcohol.

http://www.epha.org/a/2406

German proposal supports children’s ad ban

Germany has thrown its hat into the ring with a new proposal on AMS, discussed along with the Finnish proposal at the last working group at the end of July.

It appears that Germany is proposing a much more liberal approach to the quantitative advertising rules, such as allowing isolated spots, deleting the 35 minute rule and the hourly limit. On the restrictive side, they propose there should be no advertising in Children’s Programmes. On self-regulation they propose a much more positive approach saying that “Member States shall promote self-regulatory and co-regulatory regimes”.

The full text is available on request.

EPC position

EPC raises serious concerns over potentially unworkable Commission proposal

Member States and the European Parliament are now debating the Commission’s new TV Without Frontiers proposal, a proposal designed to bring the directive into line with new technological developments.

The proposals for a new directive seek to do two things:

1. Modernise some of the rules on TV advertising including new rules to permit product placement;
2. Create a new legal framework for ALL audiovisual media content which is made available to consumers on all platforms: television, internet and via mobile, subject to minimum, harmonised rules (on editorial and advertising content) according to country of origin.

In addition, special attention is paid to the protection of minors and measures to prevent incitement to hatred. Member States are encouraged to use co-regulatory means to enforce various provisions and a new right on short news extracts is created for broadcasters and intermediaries.

EPC position

Editors, journalists and EPC members have raised concerns relating to the new TVWF proposals. Many of these concerns centre on whether the revised directive will achieve the desired results, as described by Commissioner Reding and her cabinet during the consultation process, namely: i) to liberalise outdated rules on television advertising; ii) to provide a level playing field for new services and iii) to steer clear of regulating the Internet. The British Government and the Confederation of British Industry (CBI) are being joined by more and more Member States now contesting the proposals saying that they will stifle the development of new media such as TV over the Internet and mobile phones. The EPC takes issue with the extension of the scope of traditional broadcasting services to new audiovisual media services. This does not reflect previous assurances from the Commission that there is no intention to regulate the internet. The EPC was also told that there would be only minimum rules for content carried on new platforms: firstly the protection of minors and secondly incitement to hatred based on race and religion etc. At no time was there any reference to statutory rules on advertising or incentive quotas for on-demand services. If this new interpretation is correct, instead of merely applying minimum rules for content in new services on the protection of minors and incitement to hatred, the new Directive would impose a comprehensive set of statutory regulations in three important areas covering editorial and programme content, advertising and quotas. Whilst the EPC appreciates the recognition by the Commission of the need to exclude online versions of newspapers and magazines from these provisions, nonetheless audiovisual media services seem to be left with a set of impractical provisions which go far beyond what was expected.

Specifically, the EPC is calling on EU Institutions:

• to liberalise the television (linear) advertising provisions but without extending the scope to cover so-called ‘non-linear’ services
• to clearly and explicitly exclude the press from the scope of the Directive in all circumstances.

The EPC is talking to MEPs and to Member States in order to ensure the media industry can comply satisfactorily with the new proposals.

The background

Last revised in 1997, the TV Without Frontiers Directive is the cornerstone of EU legislation covering audiovisual services.

The main aspects are:

1. Programming quotas
2. Advertising: There are detailed rules on the content of television advertising:
   • No advertising is allowed for tobacco or for prescription drugs, advertising needs to be separated from programmes and surreptitious or subliminal advertising is not allowed.
   • Nor is advertising allowed to discriminate on grounds of race, gender, or nationality or be offensive to human dignity or beliefs.
   • Advertising of alcohol, advertising to children, and programme sponsorship are all permitted only if detailed conditions are met.
   • There are also rules on the amount of advertising, and the patterns in which advertising breaks are allowed to interrupt programmes, and on the maximum amount of teleshopping programmes.
   • The directive lays down certain advertising content and scheduling rules and sets quotas for independent and European production.
3. Member States should ensure that programmes seriously detrimental to minors should not be shown, and that programming suitable only for an adult audience should be identified before and/or transmission.
4. Finally, any viewer who has their legitimate interests harmed by an incorrect allegation in a television programme has a "right to reply”.

Key issues and positions (separate document available on request)

Country of origin

EPC position:

EPC agrees that Country of Origin is the best principle to support competitiveness.

Extension of scope

EPC position:

New services including online press are already subject to EU Directives on E-Commerce, Unfair Commercial Practices and Data Protection.

Product placement

EPC position:

Pro.

Advertising restrictions

EPC position:

EPC has always opposed advertising bans in favour of industry self-regulation. The industry is well-served by the European Advertising Standards Alliance (EASA) set up specifically to work towards the highest possible standards of self-regulation in the industry across the EU. Many studies have been carried out showing that advertising bans have little impact on consumer behaviour.

System of regulation

EPC position:

Industry has a long, well-established and effective system of self-regulation. Statutory instruments have a major negative impact on the competitiveness of the sector.

Protection of minors and right of reply

Latest: The Political agreement is still being reviewed by the lawyer in the Council but the formal common position should soon be published.

European Parliament committees

Culture and Education (lead committee)

- Rapporteur, Ruth Hieronymi, MEP

Committee remit: To debate the TVWF directive in the context of consumers and public health, eg protection of minors, the impact of TV advertising on consumers and cultural diversity.

Internal Market and Consumer Protection

- Rapporteur Heide Ruhle (DE – Greens)

Committee remit: IMCO will focus on the single market and consumer policy and specifically:

• Country of origin (to keep it, as it is the cornerstone of the Directive)
• Advertising (there must be a balance. Is the single market vs. consumers. i.e. advertising times for children and in films – IMCO wants to go back to the old rules as the impact assessment showed there was no need for new rules)
• PP (has no final view)
• Disabled must be included – there is a market there for them
• Scope- must find ‘reasonable rules’ which allow for flexibility

The report is due to be submitted to the Culture Committee mid-June.

Civil Liberties, Justice and Home Affairs (LIBE)

- Rapporteur, Jean-Marie Cavada (ALDE/France)

Committee remit: LIBE will concentrate on:

• Protection of Minors
• Discrimination and the protection of human dignity (age, sexual orientation, the disabled)
• European works
• Pluralism of information

Industry, Trade and Research (ITRE)

- Rapporteur, Gianni de Michelis, MEP

Committee remit:

• Need to stress the importance of Directive as the implementation of the Lisbon Process
• Must take consumers into consideration
• Will be global competition in audiovisual services, therefore European works must be competitive. There is also a cultural interest in the revision.

Economic affairs

- Rapporteur, Karsten Friedrich Hoppenstedt

Committee remit:

• To put in a workable framework to make the European industry competitive and successful

Women’s Rights and Gender Equality

- Rapporteur, Lissy Gröner (PSE/DE)

Committee remit:

• Welcomes the extension of scope
• Wants to discuss the link of TVWF with the Ecommerce Directive
• Does not want to weaken advertising rules on consumer protection
• Quantitative and qualitative advertising rules have seen an improvement
• Critical of PP - a ‘backdown’ of advertising would weaken advertising rules and consumer protection.
• Need to discuss strict adherence to Protection of minors.
• Article 13 included in the Amsterdam Treaty is not clearly stated in the Commission text and should be.
• FEMM going to fight for the rights of women; stronger female participation and gender mainstreaming.

Summary of Greens debate, 26 June:

"TV without Frontiers Directive: Viewers without Frontiers instead of advertisements without frontiers"

Commercial broadcaster ITV said that its competitive advantage was thanks to its spend on programming (1.5 billion euros) but with advertising now shifting to new media, they needed a new source of revenue. Product placement should never interfere with editorial freedom of programming content and should not take undue prominence, but it was a means for broadcasters to gain back some advertising spend. Appropriate regulation should be put in place to make it workable and to ensure these safeguards were in place.

BEUC was wholeheartedly against the advertising sector, insisting that new advertising technologies made advertising more powerful and children therefore more vulnerable. Product placement, they said, was dangerous for children and editorial independence and advertising could be held partly responsible for obesity. It called for a 21h00 watershed on children’s advertising, a move which would have serious implications for children’s programming, according to ITV. Heide Ruhle, MEP, was against pp for children’s programmes but not against it entirely subject to clear transparency rules (which the industry would favour).

Prisca Ancion-Kors of the Dutch Self-regulatory organisation (Stichting Reclame Code) said that broadcasters taking advertising had to be affiliated to the Stichting, which is based on self-regulation and which is based on a strict monitoring system. Self-regulation didn’t appear to work universally well, according to the Belgian advertising association which owned up to regular violations of its code.

Greens MEP Rebecca Harms said in the closing remarks that her party would oppose pp. She also said they didn’t want more flexible advertising rules – nor to see a reduction in programming quality. This was a good example of an MEP failing to grasp the link between advertising revenue and programme quality. She did concede, however, that their was majority support among MEPs for self-regulation.

Key players

European Commission:

Commissioner Viviane Reding

European Parliament:

CULT: Rapporteur Ruth Hieronymi (DE, PPE); PSE Henri Weber (FR); ADLE Ignasi Guardans Cambo (ED); Greens Helga Trüpel (DE)
ITRE: Rapporteur Gianni de Michelis (IT, NI); PSE Catherine Trautmann (FR); PPE John Purvis (UK); ALDE Patrizia Toia (IT); Greens Rebecca Harms (DE); UEN Umberto Pirilli (IT)
IMCO: Rapporteur Heide Rühle (DE, Verts); PPE Sied Kamall (UK); ALDE Diana Wallis (UK)
ECON: Rapporteur Karsten Friedrich Hoppenstedt (DE, EPP)’ ALDE Sharon Bowles (UK)
LIBE: Rapporteur Jean-Marie Cavada (FR, ALDE)

EP legislative agenda:

11-14 December, EP Plenary adoption of TVWF

Useful links

• Commission summary including links to official documents
• Commission page on audiovisual and media policies
• Commission summary on Protection of Minors and Right of Reply
• Study commissioned by the European Commission on co-regulation
• Commission document on FAQS
• Culture Council 18-19 May’06
• UK Government consultation documents (deadline September 2006)
• Speeches by Commissioner Reding:
  • "Regulating the new media landscape, 7 June"
  • "Free-to-air content and advertising: not one without the other World Federation of Advertisers (WFA) Conference, 15 May 2006"
  • "Association for Commercial Television (ACT) conference, 27 April 2006"
  • "European Broadcasting Regulators strengthen their cross-border cooperation under the Television without Frontiers Directive, 24 March 2006"
  • "Mobile TV, 8 March 2006"
• European Parliament documents:
  • Public Hearing on 2 June
  • Advertising Education Forum (AEF) - a non-profit, academically neutral organisation that offers a comprehensive database of information on advertising and children and related issues.
  • European Advertising Standards Alliance (EASA), the organization that promotes advertising through best practice in self-regulation across the Single Market
  • Hieronymi - Working document
  • De Michelis - Draft opinion
  • Groener - Draft opinion
  • Ruehle - Draft opinion
  • Cavada - Draft opinion

For further information for journalists on this or other topics, please contact Heidi Lambert Communications on Tel: +44 1245 476 265 heidilambert@hlcltd.demon.co.uk, or contact Angela Mills-Wade on Tel: 00 44 1865 310 732 or angela.mills@epceurope.org.

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