Select Committee on European Scrutiny Seventeenth Report


3 Regulation of audiovisual media services

(a)

(27133)

15983/05

COM(05) 646

+ ADD 1

+ ADD 2

(b)

(28495)


(c)

(28552)

7944/07

COM(07) 170


Draft Directive amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities

Impact assessment of the draft Directive

Statistical annex

Revised draft of the Directive



Commission opinion on the amendments adopted by the European Parliament

Legal baseArticles 47(2) and 55 EC; co-decision; QMV
DepartmentCulture, Media and Sport
Document originated(c) 29 March 2007
Deposited in Parliament(c) 10 April 2007
Basis of consideration(b) EM of 29 March 2007
Previous Committee Reports(a) HC 34-xvi (2005-06), para 6 (25 January 2006),

HC 34-xxxix (2005-06), para 4 (25 October 2006) and

HC 41-iv (2006-07), para 2 (14 December 2006)

(b) and (c) None

To be discussed in CouncilMay 2007
Committee's assessmentPolitically important
Committee's decision(All) Not cleared; further information requested

Background

3.1 Scheduled television broadcasts can be received by analogue and digital televisions (terrestrial, satellite and cable) and the Internet. They are regulated by the 1989 Television without Frontiers Directive (TVWF).[11]

3.2 The TVWF requires every Member State to ensure that all scheduled television broadcasts by broadcasters within its jurisdiction comply with the rules contained in the Directive (or with its own stricter rules) on:

  • the protection of public access to broadcasts about events of major importance;
  • freedom for broadcasts transmitted in one Member State to be received in others;
  • the proportion of broadcasts of European origin (quotas);
  • the duration and content of advertising and teleshopping;
  • the protection of minors;
  • the prohibition of incitement to hatred on grounds of race, sex, religion or nationality; and
  • rights of reply.

3.3 The TVWF regulates "linear services" (scheduled broadcasts, the order of which the viewer cannot change). It does not apply to "non-linear services" (audiovisual programmes available to the viewer on demand and not at a time scheduled by the broadcaster).

Previous scrutiny of document (a)

3.4 In December 2005, the Commission presented document (a). It is a draft Directive to amend the TVWF to take account of technological and service developments since it was last updated in 1997.

3.5 The Commission proposed that linear and non-linear services should be subject to the same minimum requirements about:

  • access to short reports on events of high interest to the public;
  • the name and address of the media service provider;
  • the protection of minors;
  • the prohibition of incitement to hatred;
  • the promotion of work of European origin;
  • the contents of advertising; and
  • the sponsorship of audiovisual services (for example, tobacco companies would not be able to sponsor a linear or non-linear programme).

3.6 The Commission proposed that the draft Directive should apply to audiovisual media services which provide moving images to the public over the Internet; mobile networks; terrestrial, satellite and cable networks; and any other electronic network. It would not apply to sound-only services and electronic versions of newspapers and magazines.

3.7 In January 2006, the then Minister for Creative Industries and Tourism at the Department for Culture, Media and Sport (James Purnell) told us that the Government had major reservations about important aspects of these proposals.[12] We asked the Minister to tell us the outcome of the Government's consultations on the draft Directive and the substance of the Government's reservations. We also asked him for reports on the progress of the negotiations.

3.8 In October 2006, the Minister for Creative Industries and Tourism at the Department of Culture, Media and Sport (Mr Shaun Woodward) sent us a long and thoughtful reply to our request for further information.[13] He said that the Government has always supported the basic principles of the TVWF, which laid the foundations for a single market in television services while offering viewers basic safeguards for the content of broadcasts. But the time is right for re-examination of the Directive in the light of changes in the television industry and its technology.

3.9 The Government's principal reservation about the document (a) was that it would bring non-linear services within the TVWF, possibly including some "blogs" and personal websites, the moving picture content of the websites of global and national news agencies, online games and online gambling.

3.10 The Minister told us that the Government had worked hard to make sure that other Member States and Members of the European Parliament understood the Government's reservations about the inclusion of non-linear services in the Directive. A substantial number of Member States were coming to the conclusion that the Directive should cover a far narrower range of services. The Minister said:

    "In particular there is a distinct school of thought that these services should be restricted to those — in particular 'video-on-demand' — that directly compete with television in terms of the programme content that they offer and are effectively operating in a similar market."

3.11 The Minister added that the Committees of the European Parliament which were considering the draft Directive also appeared to be moving in favour of a narrower and clearer definition of non-linear services.

3.12 In November 2006, the Minister sent us a further progress report on the negotiations.[14] He told us that, at the Education and Culture Council on 13 November, there was agreement that the application of the draft Directive to non-linear services should be restricted to on-demand services which provide services much like those covered by the TVWF and which compete in the same market. So it would not apply to weblogs, on-line games and user-generated material. The Minister said that the amendments to the draft Directive which were to be put to the plenary session of the European Parliament in December were similar to those the Council had agreed in November.

3.13 We decided to keep document (a) under scrutiny pending receipt of a further progress report and a revised text in the light of the European Parliament's first reading.

Document (b)

3.14 Document (b) is a revised draft of the Directive. It has been prepared by the Commission for discussion by the Council working group. It takes account of the amendments adopted by the European Parliament in December and the changes agreed by the Council in November.

3.15 Accordingly, the crucial difference between documents (a) and (b) is that the scope of the revised draft is limited to television broadcasting and other services — linear and non-linear — which provide programmes the form and content of which is comparable to that of television broadcasting. Document (b) expressly excludes online games, user-generated content and any services where the audiovisual content is incidental and not the main purpose of the service.

3.16 The revised draft also differs from document (a) by incorporating, with modifications, some of the provisions of the eCommerce Directive.[15] For example, article 2a(3) of document (b) would allow a Member State, "in urgent cases", to take action against the providers of an on-demand service established in another Member State if the service infringed the provisions of the Directive. The Member State would be required to notify the Commission of the action it had taken and the reasons why it considered the case to be urgent. The Commission would decide within two months whether the action the Member State had taken was compatible with Community law and, if it were not, the Member State would be required to withdraw the action it had taken. This procedure is based on article 3(4) of the eCommerce Directive but is more restrictive. It would enable the Member State to take action only "in urgent cases", whereas the provision in the eCommerce Directive is not limited to urgent cases.

3.17 Article 3i of document (b) proposes a substantially revised provision on product placement. Unless a Member State decided otherwise, product placement (except of alcohol, tobacco and prescription drugs) would be admissible in "cinematic works, films and series made for audiovisual media services, light entertainment and sports programmes". Product placement would not, however, be admissible in programmes for children; and placement of alcohol, tobacco products and prescribed drugs would be prohibited in all programmes. Where product placement was permitted, it would be subject to a number of requirements. For example, article 3i(3)(d) provides that:

    "viewers shall be informed of the existence of product placement. Programmes containing product placement shall be appropriately identified at the start and the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer".

Member States would, however, have discretion to waive this requirement where the media service provider has not received a payment or similar consideration for the placement of the product.

3.18 Article 3j of document (b) is also new. It would require Member States to take action to ensure that audiovisual media services are, gradually and where feasible, made accessible to people with a visual or hearing disability.

3.19 Document (b) incorporates a large number of other amendments which reflect the views of the Council or European Parliament without significantly changing the substance of the proposal.

Document (c)

3.20 Document (c) records the Commission's opinion on the amendments the European Parliament adopted last December. It also sets out the consequential amendments which have been incorporated in document (b).

The Government's view

3.21 The Minister tells us that, while the Government would prefer the new Directive to be confined to television broadcasting, the limited extension of its scope to include other services which are similar to television broadcasting is acceptable, together with the provision in the document (b) for less regulation of non-linear than linear services.

3.22 On product placement, the Government's concern is to retain reasonable flexibility. For example, it considers that the requirement in article 3i(3)(d) of document (b) about informing viewers is too prescriptive. Member States should have discretion to decide for themselves how best to satisfy the notification requirement.

3.23 The Minister tells us that:

    "The Government can support the proposal that audiovisual media services should be gradually made accessible to people with disabilities. The United Kingdom is already a leader in requiring audio-description, signing and subtitles, so that the effect of the provision would be to encourage others to follow our lead rather than requiring us to do something we do not do currently do."

3.24 The Minister refers to the Regulatory Impact Assessment he sent us in October 2006. The Government is in regular contact with the broadcasting, media, production and advertising industries about the potential impact of the proposed Directive and will produce a further Regulatory Impact Assessment when it consults the industries about the implementation of the Directive.

3.25 The Minister says that the German Presidency intends to seek agreement on a common position on the draft Directive at the meeting of the Education, Youth and Culture Council in May, before the European Parliament gives the proposal a second reading.

Conclusion

3.26 We are grateful to the Minister for his clear and helpful Explanatory Memorandum on the revised draft of the amending Directive.

3.27 We understand why the Government would prefer there to be no change to the scope of the Television without Frontiers Directive. But we also recognise that this would not be acceptable to most other Member States or to the European Parliament. We can also understand, therefore, why the Government is content with the scope of document (b), which would limit the extension to on-demand services which are similar to television broadcasts.

3.28 We share the Minister's reservations about the provision in document (b) on product placement. We ask him to keep us informed of the negotiations on article 3i and to tell us the outcome of the working group's discussion of document (b).

3.29 Pending receipt of this further information, we shall keep documents (a), (b) and (c) under scrutiny.


11   Council Directive 89/552/EEC (OJ No. L 298, 17.10.1989, p.23) as amended by Directive 97/36/EC (OJ No. L 202, 30.7.1997, p.60). Back

12   See HC 34-xvi (2005-06), para 6 (25 January 2006). Back

13   See HC 34-xxxix (2005-06), para 4 (25 October 2006). Back

14   See HC 41-iv (2006-07), para 2 (14 December 2006). Back

15   Directive 2000/31/EC: OJ No. L 178, 17.7.00, p.1. Back


 
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