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Issues
Rome II joint media and journalists letter to Commissioners, 09
December 2005
For the attention of EU Commissioners
European Commission
Brussels, 12th December 2005
Dear Commissionner
Commissioner Frattini will shortly present his revised proposal on Rome II
- the draft regulation on applicable law to non-contractual obligations
following the European Parliament's First Reading in July. The undersigned
European media and journalists' organisations would like to draw to your
attention our deep concern about aspects of this proposal which directly
affect editorial independence and day to day functioning of news and
information provision.
This draft Regulation as proposed by the Commission has a direct impact
on our daily activities of news and information provision to Europe's
citizens as Article 6 regulates the law that applies in cross-border
violation of privacy and rights relating to the personality and, as such,
the Commission must be able to justify their intervention in matters
relating to the media.
To establish a genuine European law-enforcement area, the Community,
under Articles 61(c) and 65 of the Treaty establishing the European
Community, may only adopt measures in the field of judicial cooperation in
civil matters in so far as is necessary for the proper functioning of
the internal market. In the case of media content, involving to a substantial
extent, cultural matters, this requirement of necessity must additionally
be considered alongside Articles 5 and 151 of the Treaty. We believe that
Article 6, as currently proposed, does not respect these objectives, and
therefore cannot be justified. On the contrary, it might create new
barriers.
The proposal also puts at risk the freedom of the press as protected
under the European Convention and the European Charter of Fundamental
Rights. On 10 November we therefore informed Commissioner Frattini and his
services that any intervention in this field could have a direct impact on
press freedom and on the editorial content of the various media in the
European Union.
In its plenary session of July 2005, the European Parliament approved
with wide political support and a significant majority vote, a compromise
amendment to Article 6. This was put forward by the Rapporteur herself, Ms
Diana Wallis (UK, liberal) together with the EPP, the socialists and the
greens. The amendment, in our view, meets the test of legal competence and
provides a balance between the interests of the media and potential
victims. This amendment overturned the original Wallis amendment adopted
at Committee stage.
The final compromise amendment adopted by the Plenary refers primarily
to the law of the country where the media is principally directed, i.e.
the principle of country of principal destination. This solution adopted
by MEPs provides legal certainty for the media whilst respecting at the
same time the rights of the victim and the freedom of the press.
Journalists' and media organisations have welcomed this amendment as an
acceptable compromise as it would not have a direct impact on our daily
activities of news and information provision, thereby safeguarding
editorial independence.
In the same article (6), the European Parliament rightly called for the
right of reply, preventive measures or prohibitory actions to be governed
by the law of the country where broadcasters and publishers have their
habitual residence. This amendment was also in line with the Commission's
initial proposal on the right of reply and received our support. The
amendment to article 6 adopted by the Parliament is consistent with this
approach and does not interfere with editorial independence at the point
of publication.
Lastly, we recommend the European Commission not to endorse provisions
that would make it compulsory for media organisations to adopt ethical and
self-regulatory rules under EU control. Codes of ethics or codes of
conduct already exist in EU member states and must be drawn up by the
professionals themselves. In this area we see no active role for national
governments and EU institutions to play.
In future discussions on Rome II, in particular on Article 6, the
European media and journalists' organisations would like to invite the
European Commission to give full and further reflection and consideration
of the amendment adopted by the European Parliament on Article 6 in the
light of the concerns that we describe in this letter. We believe that
these concerns have not been considered in a proper manner. In summary:
- Based on the law of the forum, the Commission's approach provides
the claimant with a choice among a wide variety of different laws to be
applied against a particular media or a journalist. This, therefore,
increases the possibility of forum and law shopping. This inevitably
encourages a plaintiff to seek redress for the local damages in multiple
countries and according to different laws.
- Under the Commission's proposal on Article 6.1, a publisher, a
broadcaster or a journalist will be under constant threat of being sued
under the law of various countries, although they have at the moment of
publication or broadcast respected the law of their home country. This
has a chilling effect on freedom of expression.
- This proposal will have a direct, practical effect on editorial
decisions and will inevitably prevent media and journalists from
publishing or broadcasting certain information because of the legal
uncertainty that this will create, thereby circumscribing freedom of
expression.
- This direct effect in matters of editorial control is in direct
contravention of the Commission's legal competence to intervene in
matters of judicial cooperation in civil matters as there is no internal
market justification in so doing.
We trust that you will be able to take account of our concerns and we
remain at your disposal for any complementary information you may require.
Yours sincerely,
The undersigned European media and journalists organisations:
Ross Biggam - Association of Commercial Television in Europe (ACT)
Director General
Christina Sleszynska - Association of European Radios (AER)
Manager
Nicola Frank - European Broadcasting Union (EBU)
Deputy Head of Brussels Office
Arne König - European Federation of Journalists (EFJ)
Chairman
Valtteri Niiranen - European Newspaper Publishers' Association (ENPA)
Director
Angela Mills Wade - European Publishers' Council (EPC)
Executive Director
David Mahon - European Federation of Magazine Publishers (FAEP)
Director
Anne Bergman-Tahon - Federation of European Publishers (FEP)
Director
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For any information, please contact:
Association of Commercial Television in Europe
rue Joseph II, 9-13
1000 Bruxelles
Tél : 32 2 736 0052
Fax : 32 2 735 4172
E-mail : info@acte.be
AER - Christina Sleszynska
Association of European Radios
Avenue d'Auderghem 76
1040 Bruxelles
Tel: 00 32 2 736.91.31
Fax: 00 32 2 732.89.90
E-mail: sleszynska@aereurope.org
EBU - Nicola Frank
European Broadcasting Union
rue Wiertz 50
1050 Bruxelles
Phone: 32 2 286 9112
Fax: 32 2 286 9110
E-mail: frank@ebu.ch
EFJ - Pamela Morinière
European Federation of Journalists
Residence Palace
Rue de la loi 155
1040 Brussels
Phone : 00 32 2 235 22 16
Email : pamela.moriniere@ifj.org
ENPA - Sophie Scrive
European Newspaper Publishers' Association
Rue des Pierres 29 bte 8
1000 Bruxelles
Belgique
Phone : 32 2 551 01 90
Fax : 32 2 551 01 99
e-mail : sophie.scrive@enpa.be
EPC - Angela Mills Wade
European Publishers Council
26 Avenue Livingstone
1000 Brussels
Phone: 32 2 231 1299
Fax: 32 2 230 7658
Email:
angela.mills@wade.uk.net
FAEP - David Mahon
European Federation of Magazine Publishers
Rue d'Arlon 15
1050 Brussels
Phone: 32 2 286 80 94
Fax: 32 2 2286 80 95
Email: david.mahon@faep.org
FEP- Anne Bergman-Tahon
Federation of European Publishers
204, Avenue de Tervuren
B-1150 Bruxelles
Phone: 32 2 770.11.10
Fax: 2 2 771.20.71
Email: abergman@fep-fee.be
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