10 Audiovisual and information services:
protection of minors and public dignity
| (27235)
5593/06
COM(06) 31
| Amended draft Recommendation on the protection of minors and human dignity and the right of reply in relation to the competitiveness of the European audiovisual and information services industry
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| Legal base | Article 157 EC; co-decision; QMV
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| Department | Culture, Media and Sport
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| Basis of consideration | Minister's letter of 5 June 2006
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| Previous Committee Report | HC 34-xxiii (2005-06), para 2 (29 March 2006)
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| Discussed in Council | 18 May 2006
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
10.1 In 1998, the Council adopted a Recommendation on the protection
of minors and human dignity from unsuitable material from audiovisual
sources, such as television, videos and the Internet.[35]
It recommended co-operation between users, consumers, public authorities,
parents, teachers and the industry to promote self-regulation,
co-regulation, codes of conduct, and the development of rating
and filtering systems.
10.2 In December 2003, the Commission's second report
on the evaluation of the application of the Recommendation found
that progress was broadly satisfactory but said that a proposal
to update the Recommendation would be made.
The first draft of the Recommendation
10.3 The Commission presented the first draft of
the new Recommendation in April 2004.[36]
It recommended:
- Member States to consider introducing
their own legislation to provide a right of reply to material
carried on any of the media;
- Member States to encourage action to help minors
make responsible use of on-line audiovisual and information services
(notably, by providing media-literacy programmes for parents and
teachers);
- Member States to encourage the industry to avoid
discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation and to oppose
such discrimination;
- the industry to develop measures for the benefit
of minors, including helping them to obtain access to audiovisual
and information services without exposure to harmful content;
- the industry to develop effective measures to
avoid discrimination based on sex, racial or ethnic origin, religion
or belief, disability, age or sexual orientation, to oppose such
discrimination; and
- the industry to "promote a diversified and
realistic picture of the skills and potential of women and men
in society".
The amended draft of the Recommendation
10.4 In September 2005, the European Parliament gave
the draft Recommendation a first reading. It adopted 38 amendments.
In response, the Commission proposed a revised text, incorporating
nearly all the European Parliament's amendments in whole or part.
As a result, the new text was significantly different from, and
substantially longer than, the first draft. For example, the Commission
had added eight new recitals and two new Annexes.
10.5 Some of the new recitals merely emphasised or
enlarged on points which were included in the first draft of the
Recommendation. But others were significant and sought to commit
the EC to new legislation. For example, the Commission proposed
the following new recital:
- "Legislative measures
need to be enacted at European 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 from access to adult programmes or services."
10.6 Moreover, the amended draft went into much
detail about the action Member States should take. For example,
new Annex II listed eight "examples of possible actions concerning
media literacy", such as distribution of information packs
on the dangers of the Internet and "publicity campaigns designed
to condemn violence against minors and to help victims by offering
psychological, moral and practical support".
10.7 The amended draft also included statements of
the Commission's intention to run a Europe-wide information campaign
"to inform the public about the risks of the Internet, how
to use it responsibly and safely, how to make complaints and how
to activate parental control"; and to consider the possibility
of "introducing a European freephone number … to assist
Internet users by directing them to available complaints mechanisms
and information resources and providing information for parents
about the effectiveness of filtering software".
10.8 In March, the then Minister for Creative Industries
and Tourism at the Department of Culture, Media and Sport (James
Purnell) told us that the Commission's amended draft of the Recommendation:
"is far too long, detailed and prescriptive
for a Recommendation, and paints a very negative picture of the
Internet and the media in general".
The Council had already reached agreement on alterations
which would remove some of undesirable features of the Commission's
revised draft. He added that:
"The UK will continue to press for further
amendments. It has to be recognised, however, that the room to
secure improvements is limited. Most other Member States have
not expressed serious difficulty with the propositions in this
document."
10.9 When we considered the amended draft, we concluded
that it was, indeed, far too long, detailed and prescriptive.[37]
It included commitments to future EU legislation which might conflict
with the principle of subsidiarity and which were, in any event,
out of place in a Recommendation. The Commission had not presented
a justification of the addition of the new Annex II. Moreover,
the Annex included actions which did not appear to be about media
literacy. Accordingly, we decided to keep the document under scrutiny
and supported the Government's aim of securing further amendments
so as to achieve a text of reasonable length and balanced content
and which was not cluttered with extraneous detail.
10.10 We asked the Minister:
- if he shared our view that
a Recommendation under the EC Treaty cannot properly include commitments
for future action under the EU Treaty; and
- why the Government regarded Article 157 of the
EC Treaty as an appropriate legal base for the Recommendation.
The Minister's letter of 5 June 2006
10.11 In his letter of 5 June, the Minister for Creative
Industries and Tourism at the Department of Culture, Media and
Sport (Mr Shaun Woodward) tells us that he agrees that a Recommendation
made under the EC Treaty cannot properly include commitments to
further action under the EU Treaty. He questions, however, whether
this Recommendation does, in fact, make such a commitment. He
says:
"I am advised that the reference to action
at the level of the EU simply underlines the need for co-ordinated
and coherent action by the Member States if the stated objectives
are to be met. This does not in our view contradict the fact that
the proper legal basis for action to further competitiveness must
be found in the EC Treaty. Nor does it promise action under the
EU Treaty."
10.12 In reply to our question about the legal base
for the Recommendation, the Minister tells us that it is the Government's
view, on balance, that the use of Article 157 EC is appropriate.
The Article requires the Community and Member States to ensure
that the necessary conditions exist for the competitiveness of
industry in the EC. While the Recommendation is concerned with
the protection of minors and human dignity, its ultimate objective
is to increase the competitiveness of the audiovisual and information
services industry.
10.13 The Minister encloses with his letter a further
revised text of the Recommendation. The Council discussed it on
18 May. The Minister says that the revised text is less objectionable
than the previous draft but the Government had not been able to
achieve as much change as it would have liked.
"So far as the specific points which James
Purnell made in the [Explanatory] Memorandum are concerned, the
dubious assertion that 'legislative measures' needed to
be taken to protect minors was still part of the text. However,
the [European] Parliament's reference to 'appropriate measures'
being taken in relation to portrayal of the sexes in the media
has been removed, and I am glad to say that Annex II, on actions
in relation to media literacy, was much shortened and improved.
It conveys a much more positive message than before and no longer
contains the redundant material to which … your Report quite
properly drew attention.
"But many of the UK's objections to this
Recommendation remained. In the event, the only speakers in discussion
of this item were the Dutch Minister, the Slovakian Minister,
and me. The Minister from the Netherlands tabled a Declaration
… setting out some important objections to the Recommendation.
… "[38]
10.14 The Minister tells us that, during his contribution
to the Council's discussion, he said that:
"the UK supports a lot of what is in the
text, endorsing in particular its emphasis on media literacy,
on the importance of protecting children and young people from
harmful media content, and the possibility of using industry self-regulation
to achieve these objectives.
"I made it clear however that the Recommendation
is too long, detailed, prescriptive and negative. I abstained
from the vote on the grounds that the Recommendation had not passed
Parliamentary scrutiny in the United Kingdom, and formally associated
the UK with the Netherlands Declaration.
"But we were … in a very small minority
on this dossier, which fell to be determined by Qualified Majority
Vote. Every other Member State, except for Slovakia, which also
abstained and supported the Dutch Declaration, voted in favour
of it. Even Holland, despite its Declaration, voted in favour.
The Council reached political agreement on the text without amendments."
Conclusion
10.15 We are grateful to the Minister for his
clear and comprehensive letter. We welcome the Government's respect
for the scrutiny reserve on the draft Recommendation and the Minister's
decision to abstain from voting on the proposal.
10.16 We regret that the text adopted by the Council
on 18 May still contains some of the provisions which both we
and the Government found objectionable. But since the Recommendation
has now been agreed by the Council, no useful purpose would be
served by keeping the document under scrutiny and so we clear
it.
35 Recommendation 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
(98/560/EC); OJ No. L270, 7.10.1998, p.48. Back
36
See (25647) 9195/04: HC 38-iii (2004-05), para 11 (12 January
2005). Back
37
See headnote. Back
38
The Declaration states that regulation of the content of the written
media is outside the competence of the EU; its competence is limited
to the audiovisual sector. The scope of the Regulation should
be confined to audiovisual on-line media services; electronic
newspapers and magazines, and electronic versions of printed newspapers
and magazines, should be expressly excluded from the Recommendation.
Moreover, in accordance with the principle of subsidiarity, it
should be for each Member State to develop its own policy on remedies
for people whose dignity, privacy or reputation has been violated
in the written media. The Netherlands also has doubts about the
effectiveness and enforceability of a right of reply in relation
to on-line services. Back
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