home . about the EPC . press centre . fact sheets . issues . members' area . links

Issues

Proposals for a revision of the "Television without Frontiers" Directive Consultation on issues papers 2nd September 2005
 

The European Publishers Council (EPC) is a high level group of leading European media corporations whose interests span newspapers, magazines, books, journals, online database and internet publishing as well as in many cases significant interests in private television and radio. A list of our members is attached.

Part 1 - Introductory comments

The European Commission has set out "to create a consistent internal market framework for information society and media services by modernising the legal framework for audiovisual services, starting with a Commission proposal in 2005 for revising the Television without Frontiers Directive".

In parallel, the European Commission's approach to convergence in the i2010 Communication of 31 May 2005 i2010 - A European Information Society for growth and employment - is that developments in the information, communications and media sectors, driven by technological developments, need time to evolve and should not be unduly inhibited by premature and unnecessary regulatory intervention.

We question the appropriateness of using the audiovisual regulatory framework as a basis for any modernisation outside the licensed broadcasting sector and would urge regulatory forbearance in line with the i2010 Communication: to take a step back while new media and communications services evolve without the hindrance of new legislation. In addition we request a contemporaneous review of the electronic communications regulatory framework, in order that a thorough analysis of the potential impact of any proposals affecting the development of new media services and next generation telecoms networks and services can be fully taken into account.

Meanwhile, the European Commission has invited comment on six Issues Papers in advance of the Liverpool conference later this month and in anticipation of bringing forward a draft legislative proposal at the end of the year. We look forward to taking part in the debates at the conference itself and thereafter, but meanwhile offer the following observations.

First in summary:

1. Since the Television without Frontiers Directive was adopted in 1989, the country of origin principle has contributed substantially to the development of "Television without Frontiers" in Europe. In addition, the country of origin principle was adopted as the guiding principle in other fields, e.g. in the Electronic Commerce Directive, where it prompted a similar success story for the development of online content and commercial services. We therefore strongly support the Commission in its decision to maintain the country of origin principle to enable the free-flow of television services throughout the European Union and oppose any moves to allow new derogations from this principle in a revised directive.
    
2. The European Publishers Council opposes fundamentally the extension of the scope of the existing Television without Frontiers Directive, which if pursued, would lead to unprecedented regulatory interference with the freedom of the press, regardless of whether our editorial content is made available in print, on the internet or via mobile handsets.
    
3. The distinctions between linear and non-linear will become meaningless within a relatively short period of time and therefore impossible to apply in future with the necessary legal certainty which operators require.
    
4. We wish to challenge the underlying assumption throughout the issues papers that there is a consensus in favour of introducing basic tier rules at the European level for non-linear services. We detect an important consensus in the communications and media sector which takes the opposite view, calling for the Commission to take a step back while new media and communications services evolve, without premature or inappropriate regulatory intervention.
    
5. The structure of the media industry itself has changed radically since the adoption of the Directive in 1989, not least in the broadcasting field with the development of digital television. Therefore this review should focus on how best to de-regulate and modernise the framework for licensed broadcasting services, with greater reliance on self-regulation to give effect to newly aligned objectives.
    
6. In particular, with regard to the extension of regulation to the online sector, we request that a full economic and regulatory impact assessment is undertaken by the Commission, and discussed in a transparent way with all interested parties, before further decisions are taken on the scope of this Directive.
    
7. As the internet is a global medium it seems inappropriate to impose regulatory burdens on content providers established inside the territories of the European Union when the citizens of the same geographic area are consumers of content services from throughout the world.
    
8. We support the Commission's view that there should be a greater reliance on self-regulation in future.

Part 2 - Specific comments on the issues papers

Rules Applicable to Audiovisual Content Services

This paper examines how the regulation of "audiovisual" content - currently a task of broadcasting legislation can be expanded to take account of media content convergence, in a technologically neutral way.

As stated in our introduction, the EPC is opposed to the extension of the scope of this Directive to cover content services made available on new media platforms for the following reasons:

• The Television without Frontiers Directive is designed for licensed broadcasting services only and should not be expanded beyond this specific remit.
• The structure of the media industry itself has changed radically since the adoption of the Directive in 1989. Therefore, the question should not be whether the material competence of the Television without Frontiers Directive should be extended to new services. On the contrary, audiovisual services currently falling under the Directive should be de-relegated to a lower tier, with heavy reliance on self-regulation to give effect to newly aligned objectives.
• The internet is a global medium and it therefore seems archaic to try to impose regulatory burdens designed for a foregone era of licensed broadcast services within an environment of spectrum scarcity on content providers generally; particularly those who are established inside the territories of the European Union, when the citizens of the same geographic area are consumers of content services from throughout the world.
• We challenge the European Union's competence to regulate the editorial content of publishers regardless of whether their content is made available in print, online or via mobile handsets, which may increasingly include full motion audiovisual video content online.
• Unlike the existing regulatory regime for broadcasting publishers are not licensed by regulatory authorities and should never fall within any such licensing regime. This principle is important in order that the press - in print or online, can continue to uphold fundamental rights such as freedom of expression and guarantee an independent press free from government interference.
• The distinctions between linear and non-linear will become meaningless within a relatively short period of time and therefore impossible to apply in future with the necessary legal certainty which operators require. Online publishing, which includes both text-based editorial, photographs and increasingly full-motion audiovisual clips, some of which is "on demand", either subscription based and/or supported by advertising, could be both linear and non-linear. Furthermore, if a live feed is available, e.g. of sporting or similarly popular events, it could become "multicast" and thereby classified as linear.
• The internet and online publishing in particular does not operate in a legal vacuum. The online environment is subject to the general law (i.e. what is illegal offline is illegal online) and, in many cases, for example advertising and editorial content, also subject to self-regulatory codes of practice and ethics.
• We would draw your attention to the work of the European Advertising Standards Alliance (EASA), of which the European Publishers Council is a member, with regard to the operation of self-regulation of advertising and to the many national systems of press self-regulation which have already adapted to online publication.
• The E-Commerce Directive already establishes a European framework of law for information society services which is complemented by several other European laws, e.g. Data Protection, Consumer Protection and Copyright.
• This review should be undertaken in conjunction with a full economic and regulatory impact assessment; a review of the regulatory framework for E-Commerce and, in keeping with the Lisbon objectives, the recently published i2010 Communication.

The Country of Origin Principle Must be Maintained

The EPC agrees strongly with the Commission that the country of origin principle is at the core of the Television without Frontiers Directive and a necessary condition for the creation of an internal market for television broadcasts. Since the Directive was adopted in 1989, the multiplication of audiovisual services in Europe owes in large part its success story to the country of origin principle. In addition, the country of origin principle was adopted as the guiding principle in other fields, namely in the Electronic Commerce Directive, where it prompted a similar success story for the development online services, including online publishing and advertising.

We therefore strongly support the Commission in its decision to maintain the country of origin principle and oppose any new form of derogation from this principle.

Protection of Minors, Human Dignity including Incitement to Racial Hatred and Right of Reply

In line with our comments on the extension of the scope of the Television without Frontiers Directive in general, we oppose the extension of any statutory content rules in this field. The Commission is already aware of the EPC's views on the Recommendation on the Protection of Minors and our opposition to the introduction of mandatory, statutory right of reply at the European level.

We, of course, wish to see effective controls to protect minors from harmful content. In our opinion, the areas covered in this particular Issue Paper are well suited and served already by a combination of general law as well as self-regulation through codes of practice and ethics.

Commercial Communications

This paper covers both qualitative and quantitative advertising regulation. We welcome the development of the ideas introduced in the Interpretative Communication from 2004 where already proposals for liberalisation were discussed.

Regarding the qualitative side, we support measures which pave the way for new forms of broadcast advertising, sponsorship and marketing practices to be permitted.

However, we oppose any new definitions which lead to an extension of broadcast advertising rules to the online, new media environment. Instead we would recommend a new light-touch approach to the licensed broadcasting environment, with Member States being mandated to allow for a greater reliance on self-regulation.

The online, new media environment meanwhile is already well served by a combination of European law (e.g. via the E-Commerce and Unfair Commercial Practices Directives) and highly effective self-regulation. We would draw your attention here to the submission made by the European Advertising Standards Authority of which we are members.

We support a liberalisation of the rules pertaining to prescription-only pharmaceutical products, allowing consumers to call for objective information on-demand through new interactive advertising services. Any such change in the regulatory framework would, of course, have to be matched by a similar de-regulation for all media, including the press (in print and online), in order to avoid distortions of competition.

Product Placement should be permitted as a legitimate means of commercial communication within the boundaries proposed by the 2004 Interpretative Communication. Identification of this form, as of any other form of commercial communication, should be clearly identifiable as such to the viewer at the beginning and/or at the end of the programme.

The same applies to sponsorship of television programme content as already foreseen in the Interpretative Communication where not only the name of the sponsor, but also a verbal or visual reference to products and services should be made in a manner clearly understood by the viewer.

Regarding the quantitative side we recommend a modernisation of the rules for licensed broadcast services. The EPC believes that the objective of the revision should be a sustainable legal framework for audiovisual content services in the digital age. Predominantly, this means that antiquated regulation, in particular restrictive advertising rules specific to analogue TV should be abolished. Digitalisation and new technologies, such as PVR and skipping functions, will fundamentally change the parameters of business models in future. In addition, the increased power and sovereignty of viewers with a broad choice of free TV and other media made strict regulation of the amount and scheduling of advertising breaks obsolete.

Legislation must adapt to new parameters in order to sustain a competitive commercial TV industry in Europe. The Commission therefore should reduce regulation to allow broadcasters to adapt to new paradigms and develop new forms of advertising and marketing practices to support the development of digital channels.

Media Pluralism

The European Publishers Council concurs with the overall analysis of this paper - that there is a wide range of measures already in place to safeguard pluralism and that pluralism is clearly a question for the Member States, under the subsidiarity principle.

Lest there be any doubt, we wish to re-state our long-held view that a combination of national measures, suited to the specificities of national markets and cultures and effective competition policy is all that can be reasonably expected to establish a competitive and pluralistic environment in which European media companies can continue to flourish.

The rather more subjective areas which are touched on in this paper such as quality of editorial content and promotion of democratic values should never, in our opinion, be dealt with through legislation.

We note that the Recommendations from the recent report from the European institute for the Media (EIM) are included in this Issue Paper. The report itself from the EIM touches on some of these qualitative and subjective areas but fails completely to take into account the impact of the new forms of editorial content which are burgeoning online. Therefore the EIM Recommendations which result from their report and analysis could be flawed and we would urge caution in using these alone as a basis for further work in this field.

Meanwhile, as Mrs Reding and DG Information Society and Media are currently preparing and contributing views on media pluralism to the European Commission's Fundamental Rights report we would like to offer our full cooperation for further discussion on these important areas.

Right to information and right to short reporting

We support the initiative to introduce a short reporting regime in the name of the freedom of the press. Restrictions on access to public and sporting events are becoming increasingly problematic for EPC members who need such access in order to produce short extracts for the purposes of TV news reporting.

The EPC therefore supports the creation of a news access right for broadcasters and news agencies for the purpose of news reporting. However, the news access right needs to be carefully shaped and balanced with the commercial interests of broadcasters that hold the entertainment rights for sporting and other public events.

Cultural Diversity and the promotion of European and Independent production quotas

The EPC favours a de-regulation of the quota regime as it currently applies to broadcasting services. Furthermore we oppose any attempt to extend the existing quota regime, either through quantitative or investment quotas to the online and other new media services. Due to the very low barriers to entry in the new services environment, especially online, we can already see how this new medium has become an ideal environment to foster cultural diversity. Pluralism is inherent in the technical characteristics of these new services and in no other field would the legal imposition of quotas be more out of place.

We therefore support Commissioner Viviane Reding's statement which she gave in her speech "The Media and Globalisation" at the European Forum Alpbach on 31 August 2005:

"It could very well be that the old contradiction felt by many between globalisation and cultural diversity belongs to the past. We certainly do not need "quotas" on Internet content. We will not achieve cultural diversity by means of regulation, it will impose itself. A company offering media services in Europe without taking account of the cultural diversity would inevitably fail. This is an economic and commercial fact, which is understood more and more by European and Non-European businesses."

European Publishers Council
2nd September 2005