PROTECTION OF MINORS (5593/06)
Letter from the Chairman to Shaun Woodward
MP, Parliamentary Under-Secretary of State for Creative Industries
and Tourism, Department for Culture, Media and Sport
Your Department's Explanatory Memorandum (EM)
dated March 2006 was considered by Sub-Committee G on 11 May.
We understand from your officials that things
have moved rather rapidly since the EM was written and that a
compromise revised text of the Recommendation may be considered
for political agreement by the Council on 18 May. We are told
you may be considering whether to ask for the scrutiny reserve
to be lifted to enable the Government to vote in favour of political
agreement at that meeting.
That places us in some difficulty. Above all,
we still do not know whether you are content to support political
agreement at this stage and, if so, why.
Nor are we confident that we are entirely clear
what will be on the table for consideration at next week's Council
meeting. The EM did not indicate any particular urgency when it
was sifted for scrutiny on 27 March and it was not until last
week that we were sent all the supporting documents to enable
it to be properly considered. Even so, we are not sure that we
have the full picture of what this Proposal entails and the background
to the present position.
The EM referred to the Government's reservations,
which were based on extensive consultation of UK stakeholders,
about the earlier text of the Proposal. It reported that, at that
stage, the Government was still dissatisfied with the compromise
text which the Commission had produced following amendments proposed
by the European Parliament (EP). According to the EM, this document
was too long, detailed and prescriptive for a Recommendation and
painted a very negative picture of the internet and the media
In particular, the EM noted Government objections
to references in an EP amendment to the need to enact legislative
measures to protect minors over the content of all audiovisual
and information services. The Government considered that this
would be inappropriate in a Recommendation and that Members States
should be left to decide for themselves how best to deal with
these problems in the light of their own circumstances, national
traditions and practices. The EM also mentioned other Government
objections over how to deal with portrayal of the sexes in the
media and advertising and over media literacy, although these
were not fully explained.
But the EM reported that negotiations were continuing
and that the Austrian Presidency were trying to secure removal
of the references to legislative measures. It also mentioned possible
linkages, which it did not fully explain, to the draft Television
Without Frontiers Directive (15983/05) which is currently held
under scrutiny by Sub-Committee B. It suggested that the above
Recommendation might be preferable, despite its shortcomings,
to the potentially damaging regulatory controls which apparently
might result from the Directive.
Since then your officials have done their best
to explain by telephone and by supplying additional documents
how things have changed in further negotiation. Although improvements
have seemingly been made, it is not entirely clear to us from
the rather complex additional documentation which was produced
on 9 May what those improvements are, how they relate to the original
text and what the full implications of the revised text will be
if it is approved at next week's Council.
We note, however, that the text still contains
seemingly objectionable references to legislative measures and
that the Government still has other objections to the Recommendation,
although again we are not entirely clear what they are.
More surprisingly, in view of those objections,
we understand that officials are now recommending that, since
the UK is almost certain to be outvoted by QMV at Council, it
would be tactically wiser to go along with the unsatisfactory
compromise text in the hope that it would improve UK leverage
when decisions have to be taken on the Television Without Frontiers
We are unable to comment on that assertion,
not least because it has not been fully explained to us, and it
has not been possible in the time available to consult Sub-Committee
B about the implications for the Television Without Frontiers
We also need more time to consider the legal
implications of the references to legislative measures in the
Recommendation, which has apparently been raised in correspondence
with the Commons Committee which we do not appear to have seen.
We do try to be helpful to the Government whenever
we can in clearing items from scrutiny at short notice where urgent
Council decisions are needed and clearance can be justified. But,
in this case, I regret to say that the notice is much too short
and the information available insufficiently clear, to enable
us to take such a decision with confidence, even if we were sure
that it was what you wanted. The scrutiny reserve is therefore
maintained and we will expect you to make that clear in discussion
at next week's Council.
We look forward to a full report on what happened
at the Council meeting and how the Proposal stands as a result.
12 May 2006
Letter from Shaun Woodward MP to the Chairman
Thank you for your letter of 12 May about this
Recommendation, following the Explanatory Memorandum which we
submitted in March and the contacts which officials here had with
your own staff early in May.
I hope I may first of all say that we regret
any difficulty or confusion which there may have been as a result
of the approaches which DCMS officials made. This was a complicated
issue and there was not, as you say, a lot of time. For reasons
which I expand on below we felt that there might be an argument
for the UKdespite the reservations which we all have about
this documentto vote in favour of it at the Council of
Ministers in Brussels on 18 May.
Our officials felt that it was worth discussing
this with yours. But we do of course entirely accept the Committee's
absolute right to reach its own judgement on these matters. When
I attended the Council, I abstained from voting on this Recommendation
and made it clear, as you have suggested, that it had not passed
scrutiny in our Parliament.
As compared with the document on which James
Purnell commented in his Explanatory. Memorandum in March, the
18 May Council of Ministers discussed a revised text of the Recommendation,
attached to this letter. The changes which had been made reflected
discussion that had taken place since January among the Member
States and between the Presidency, the Commission, and the Rapporteur.
There had been some progress, though this was
as you will know a difficult dossier for the UK and we were not
been able to achieve as much as we should have liked. So far as
the specific points which James Purnell made in the Memorandum
are concerned, the dubious assertion that "legislative measures"
needed to be taken to protect minors was still part of the text.
However, the Parliament's reference to "appropriate
measures" being taken in relation to the 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 paragraph
2.22 of 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 at the Council on 18 May were the Dutch Minister, the Slovakian
Minister, and me. The Minister from the Netherlands tabled a Declaration,
which I am attaching to this letter, setting out some important
objections to the Recommendation.
As James Purnell's Explanatory Memorandum had
suggested (at paragraph 26 onwards) there is a possible link between
this Recommendation and the Commission's proposals for amending
the Television Without Frontiers Directive (TVWF). We feet that
there could be some merit in trying to explore with other Member
States and the Commission the possibility of using a Recommendation
instead of a Directive to cover the online, non-scheduled audio-visual
media services which the draft revision of TVWF would cover.
If we do that, we will want to argue for self-regulation
for these services, and self-regulation is of course much better
delivered by a Recommendation than by a Directive. There might
then be an argument, though it may not necessarily be a very strong
one, for the UK being sufficiently in favour of this Recommendation
to have voted for it, despite misgivings. That might make it easier
for us to support, or promote, any further Recommendation we wanted
in a credible way.
In my Council contribution on the Recommendation
on 18 May, I therefore 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 as you will know in a very small
minority on this dossier, which fell of course to be determined
by Qualified Majority Vote. Every other Member State except for
Slovakia, which also abstained and supported the Dutch Declaration,
voted favour of it. Even Holland, despite its Declaration, voted
in favour. The Council reached political agreement on the text
5 June 2006
Letter from the Chairman to Shaun Woodward
Thank you for your letter dated 5 June which
was considered by Sub-Committee G on 29 June.
We are very glad to know that, quite properly,
you abstained from voting on this Recommendation at the Council
meeting on 18 May because Parliamentary scrutiny clearance had
not been given. We are also grateful for your apology about the
confusion over the paperwork which meant that, when a last-minute
decision was needed before the Council meeting, we were not able
to take one with any certainty.
Although we are glad to learn that some belated
improvements were made to the text in the process of negotiation,
we note that the Government continues to have specific objections
to some aspects of the Recommendation, as well as finding it generally
too long, detailed, prescriptive and negative. It seems a great
pity that all the other Member States except Slovakia, including
even the Dutch who had their own formal reservations, should have
voted for such an unsatisfactory Recommendation.
In the circumstances, since the die is now cast,
we will release the document from scrutiny. But, in doing so,
I must stress that we are not satisfied with the outcome. We are
still not entirely clear what the final text is likely to mean
in practice. Some of your objections were not fully explained
in previous correspondence. We also remain puzzled by the seeming
inconsistency between the objectives that seek to protect children
and control offensive material and the other aim of giving rights
of reply. Nor is it entirely clear how the passing of this Recommendation
might affect the Government's attempts to moderate the related
Television Without Frontiers (TVWF) Directive, which remains under
scrutiny by Sub-Committee B.
Even if the Recommendation turns out not to
matter much in itself, important and controversial issues of wider
significance lie behind it. We would therefore welcome your clarification
of the position regarding the Recommendation and of the Government's
overall policy towards those issues, not least to assist our consideration
of the TVWF Directive.
3 July 2006
Letter from Shaun Woodward MP to the Chairman
Thank you for your letter of 3 July about the
EU Recommendation on the protection of minors. I am grateful for
your confirmation that the document is now released from scrutiny,
albeit you continue, like the Government, to have reservations
about it. You asked some further questions, in particular about
what the passing of this Recommendation will mean in practice
and how it relates to the Government's attempts to moderate the
Television without Frontiers Directive.
I am sorry that you felt that it was unclear
precisely what the basis was for the Government's objections to
the Recommendation, as summarised in our Minute Statement of 16
November 2004. Of course, the final Recommendation is much improved,
but some of our concerns remained. First, the recommendation that
Member States encourage the audiovisual and online information
services industry to avoid all discrimination on various grounds
and, especially, to combat such discrimination goes too far in
the direction of interfering in editorial policy. That this should
be done "without infringing freedom of expression or of the
Press" seems to us, as a general proposition, an impossible
task, since encouraging the media actively to combat discrimination
would require intervention by Government.
A similar point arises in relation to Article
II 4, which effectively requires Member States to endorse a Recommendation
directed not at Government action but industry action and goes
so far as to suggest that audiovisual and online information services
consider effective means of promoting a diversified and realistic
picture of the skills and potential of men and women in society.
This also seems to misunderstand the nature of online services,
which are already diverse and disparate in themselves and accessed
unpredictably by users; they cannot be treated as a coherent industry
which could meaningfully respond to such a proposition, however
Like the Netherlands, we have doubts as to whether
the proposition that all Member States impose a right of reply
or equivalent remedy in online media is either desirable or enforceable.
To the extent that enforcement was attempted, we see this as risking
chilling both free speech and the development of these media.
In the UK we have a remedy in the broadcast media (the system
of adjudicating on complaints of unfairness or unwarranted invasion
of privacy by Ofcomformerly the responsibility of the Broadcasting
Standards Commission and before them of the Broadcasting Complaints
Commission) which we believe works more to the benefit of members
of the public and of journalistic standards than a simplistic
right of reply. We also have arrangements under the Press Complaints
Commission's Code of Practice which address these issues in a
manner more appropriate to the print medium (although it is also
applicable to online versions of PCC members' publications). We
think that these arrangements address the truly mass media which
are by definition those of most concern. There is a huge number
of other online information sites to which it would be inappropriate
to apply such requirements and where the easiest means of reply
might, for example, be the establishment of an alternative online
site. As the Dutch emphasised, these matters need to be addressed
in ways sensitive to national traditions and culture and this
argues for a high degree of subsidiarity. Against this background,
the inclusion of the indicative guidelines of Annex 1, which reflect
a particular model, are not helpful.
Turning to the implications of adoption; of
course, as a Recommendation, it is not legally binding on Member
States and as the UK had serious concerns about it and we abstained
from the vote, we do not plan any new measures in the areas covered
by the Recommendation as a result of its adoption. The question
is more, therefore, whether the Recommendation reveals a direction
of policy development at the European level which we would see
as unhelpfulthe evidence of our discussions on revision
of the Television without Frontiers Directive is that it does.
Your sub-Committee B is, of course, planning to hold a hearing
on the TVWF Directive later this autumn and we shall, if you wish,
be able to expand on this point then.
And, secondly, there is the question of what
changes other Member States might make as a result of the Recommendation
and whether the existence of the Recommendation might serve to
inhibit the development of on-line services in Europe by having
a chilling effect on free speech: we think that that is indeed
a risk. In short, the Recommendation has proved to be an unhelpful
dry-run for consideration of the revised TVWF Directivethe
AudioVisual Media Services Directive (AVMS) as we must learn to
On the positive side, as I was able to indicate
in Council, there is much in the Recommendation which lies fully
with the grain of Government policy, notably our belief in the
importance of media literacy and in working co-operatively at
international level to improve co-ordination of action so as to
secure a safer Internet especially for children. There is therefore
an opportunity to extend initiatives of this kind, working either
directly with Member States or through the Commission.
28 August 2006