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 base | Articles 47(2) and 55 EC; co-decision; QMV
|
| Department | Culture, Media and Sport
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| Document originated | (c) 29 March 2007
|
| Deposited in Parliament | (c) 10 April 2007
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| 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
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| To be discussed in Council | May 2007
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| Committee's assessment | Politically important
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| Committee's decision | (All) Not cleared; further information requested
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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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