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EPC news - February 2003

The monthly update on EU media issues

Audio-Visual & general media policy

Market abuse

Commission defuses concerns over wording

In its draft Implementing Measure on Article 6(5) of the Market Abuse Directive, the European Commission has moved to defuse most of the concerns for financial journalists raised by CESR's earlier draft, and by the Directive itself.

The new text clarifies that media self-regulation (where it exists) will continue to operate, except in the case of those journalists who make overt investment recommendations. These will be subject to workable interest disclosure rules.

EPC believes the Commission has responded effectively. An area of concern still remains with Article 8. We recommend it is clarified to state that Article 8 "does not apply to journalists subject to appropriate regulation (including self-regulation) in Member States".

Timetable for action:

The Commission has announced a timetable for action as follows:

The first draft of the Commission proposal sent to the securities committee on 17th March;
It will be posted on the internet for comment by interested parties at the same time;
There will be a two month consultation period after which the final proposal will be released;
Parliament will then have three months to review it and comment. They have no call-back powers (although this might be changed in future);
The first set of rules will be agreed and voted on by the securities committee by September;
If the securities committee has not been able to reach a qualified majority in favour of the draft rules, they will have to be sent to the next ECOFIN Council;
The ECOFIN Council would have to achieve a qualified majority vote AGAINST the draft rules for them to be thrown out.

The draft Commission proposal is now available on the DG JAI web site.

Click here for the Market Abuse fact sheet.

Rome I

Concerns over article 5

EPC has reviewed the recent Commission Green Paper on the Rome Convention. This review has raised concerns that some of the suggestions made by the Commission could have an effect on subscription contracts and other areas of contractual law relating to publishers.

The Rome Convention applies to "… contractual obligations in any situation involving a choice between the laws of different countries".

The Commission proposes to give the Rome Convention a new legal basis and change it to a Regulation. The part of the Green Paper which could cause EPC members most concern is the proposal for changes to article 5 which deals with consumer contracts. Until now very few cross-border consumer contracts fell within the scope of the Convention.

However, the Commission in its drive to ensure a high level of consumer protection, particularly in cross-border shopping cases, has decided that it might be a good idea to extend article 5 to cover all consumer contracts. A number of suggestions are given as to how this might be approached. Worryingly the Commission seems to favour the inclusion of most cross-border contracts and the application of the law of the consumer’s habitual place of residence.

Duty to trade fairly

Commission makes changes to draft directive

The Green Paper on Fair Commercial Practices was debated in Parliament in February. However there is concern that the Commission has appeared to have made some significant changes to the draft Directive which is expected to be published in the second quarter of 2003.

The changes the Commission appear to have made are as follows:

The Commission recognises that although full harmonisation must be pursued, there are some issues which must be left to Country of Origin and Mutual Recognition rules;
The General Duty is likely to be limited to definite commercial practices;
The definition of ‘vulnerable group’ would only apply to those consumers if they have been definitely targeted;
Of the categories which sit alongside the General Duty, the Disclosure and After-Sales Care categories which caused most debate have been removed from the scope of the Directive;
Misleading the Customer and Abusive Practices categories remain;
The Disclosure requirement has been absorbed into the Misleading category and has a reasonable definition;
After-Sales Care has been absorbed into the Misleading category and will be limited to false claims of an after-sales service;
The Commission is still examining the endorsement process for codes but membership will still be voluntary;
The Commission has made it clear that codes must go beyond merely re-stating the law and must be Europe-wide.

In EPC’s opinion, the issues surrounding Rome II and Sales Promotions must be resolved before a position is possible on this draft directive. EPC will watch its progress through inter-service consultation very closely.

Click here for the Duty to Trade Fairly fact sheet.

Electronic commerce

Report on e-commerce and consumer protection

The OECD has released a follow-up report on the guidelines it released for ecommerce. The guidelines were published in 1999 and have been used as a tool for internet businesses around the world. The report examines in detail the developments which have been made in these areas since 1999. It also focuses on the new developments in ecommerce which have occurred since then.

Particular emphasis in the study has been placed in the areas of payment cardholder protections, alternative dispute resolution, and cross-border enforcement co-operation. Attention has also been devoted to educating stakeholders about various aspects of the Guidelines. Finally, the Committee has held discussion and exchanged information on emerging online issues like consumer-to-consumer (C2C) transactions via online auction sites, and online marketing and advertising to children.

A copy of the report in English and French can be obtained from:

http://www.olis.oecd.org/olis/2002doc.nsf/LinkTo/dsti-cp%282002%294-final.

Internet regulation

Network Security Agency

Commissioner Erkki Liikanen has launched the Commission proposal to increase cyber-security in Europe by setting up a European Network and Information Security Agency. The objective of the Agency will be to serve as a centre of competence where both Member States and EU Institutions can seek advice on matters relating to cyber security. The agency will provide assistance in the application of Community measures relating to network and information security and contribute to the functioning of the Internal Market.

The agency will work in an advisory capacity for the Commission by giving opinions. It will also coordinate network security activity at European level.

Protection of minors from harmful content

The Citizen’s Rights Committee of the European Parliament has voted new measures to combat illegal and harmful content on the internet. In a first-reading report, MEPs called for special emphasis be placed on protecting children and minors and for closer cooperation with the accession countries.

The Parliament has asked that the action plan covers new online technologies, including mobile and broadband content, online games, peer-to-peer file transfer, text and enhanced messages and all forms of real-time communications such as chat rooms and instant messages. Parliament has recommended that cooperation with countries where illegal content is hosted or produced should be enhanced. It proposes that the EU should financially support specific projects which can lead to European standards for industry self-regulation and for filter and rating techniques.

Copyright

Database protection

A reference has been made by a Greek court to the European Court on the question of databases and sui generis protection. The database in question is a list of football fixtures which the company uses to forecast the result of matches.

The court has been asked to provide guidance on the scope of article 7 of the database Directive (the sui generis right). It has also been asked to deliberate upon whether lists of fixtures enjoy protection as databases over which there is a sui generis protection. Finally the Court has been asked to give a decision on how exactly the database right has been infringed in this case.

Advertising

Swedish alcohol advertising

A court in Sweden has found that the Swedish laws banning alcohol advertising are not compatible with European legislation. The Swedish government has reacted to the judgement by proposing that there be an EU-wide ban on alcohol advertising, which would bring all other Member States into line with the Swedish position.

Audio-visual and general media policy

Television without frontiers - use of short extracts

A Council Working Group have been asked by the Greek Presidency to examine the possibility of including provisions for access to short extracts of events subject to exclusive rights in any future review of the TVMF Directive. There will be a hearing on the subject on 4 April in Brussels.

There is a Council of Europe Convention on Trans-Frontier Television which asks signatories to examine whether it is necessary to include these rights in their legislation on access. Very few EU States have done this (Germany is a notable exception) and consequently access to short extracts is becoming increasingly difficult for those who wish to report on an event to which the exclusive rights are owned by another broadcaster.

The Working Group will discuss whether there is specific legislation in their country on this issue and whether they plan to introduce such legislation. They will also debate the question of how the right to information can be guaranteed to the public if a broadcaster exercises its exclusive rights on events of high interest.

The Working Group is also looking at aspects of new media advertising which will be the subject of a hearing on 2-3 April in Brussels.

http://www.europa.eu.int/comm/avpolicy/regul/review-twf2003/consult_en.htm.

Click here for the Duty to Trade Fairly fact sheet.

For more information on any of the following issues, contact Heidi Lambert Communications Tel: +44 1245 476 265.

Internet regulation
Market abuse
Tobacco advertising
Children's advertising
Jurisdiction and applicable law
Duty to trade fairly
Sales promotion

Contacts

Angela Mills, Director of EPC: Tel: +32 2 231 1299 (Brussels) or +44 1865 310 732 (UK) angela.mills@epceurope.org.

Heidi Lambert Communications: Tel: +44 1245 476 265 heidilambert@hlcltd.demon.co.uk.