Memorandum by the Voice of the Listener
& Viewer
PROPOSED EXTENDED
SCOPE OF
THE DIRECTIVE
1. Broadly speaking, VLV welcomes the Commission's
proposal to extend the scope of the Television without Frontiers
Directive to all Audiovisual Media Services. In our view, the
Draft Directive has sought to establish a middle way between the
relatively tight controls traditionally imposed on television
broadcasting services, and the tenets of free speech, which are
underpinned by the European Convention on Human Rights. The following
points are worthy of note.
— The Commission's definition of an
audiovisual media service requires any such service to fulfil
the following conditions. These are that the service:
(a) should be any service as defined
by articles 49 and 50 of the (European) Treaty;
(b) It's principal purpose is the provision
of moving images, with or without sound;
(c) which are designed to inform, entertain
or educate the general public;
(d) by means of an electronic communications
network.
— Moreover, recitals 13 to 15 of the
Draft Directive (which, for some unknown reason the UK Government
did not circulate as part of its consultation process) specifically
exclude the following:
(a) non-economic activities, such as
purely private websites;
(b) any form of private correspondence,
such as e-mails sent to a limited number of recipients;
(c) services where the inclusion of audiovisual
content is merely incidental to the service and not its principal
purpose, such as websites that contain audiovisual elements only
in an ancillary manner;
(d) animated graphical elements, small
advertising spots, or information related to a product or non-audiovisual
service; and
(e) electronic versions of newspapers
and magazines.
2. VLV is sure that these uncertainties
could be avoided by some redrafting. For the avoidance of doubt
therefore, and in order to protect non-commercial free speech
on the Internet, VLV proposes that the content of recitals 13
to 15 should be added to the definition of an audiovisual media
service in Article 1(a) of the Draft Directive.
3. Moreover, given the Decision of the European
Court of Justice in the Mediakbel BV judgement, and taking
account of the minimal obligations which will be placed upon providers
of non-linear audiovisual media services, VLV considers that it
is proper to include within the purview of the new directive the
categories of audiovisual media services which the UK Government
has identified in paragraph 2.15 of its Partial Regulatory Impact
Assessment.
4. VLV also welcomes the new definition
of television broadcasting in the Draft Directive, which again
in line with the decision of the European Court of Justice in
the Mediakabel BV judgement, covers all types of transmission
platform for a television service.
5. VLV is especially pleased to observe
that the proposed distinction between a linear and a non-linear
service makes sense from a consumer's perspective. As defined
in article 1(e) of the Draft Directive (which follows the Mediakabel
BV judgement of the European Court of Justice), a non-linear
service means an audiovisual media service where the user decides
upon the moment in time when a specific programme is transmitted
on the basis of content provided by the media service provider.
KEY OBLIGATIONS
TO BE
IMPOSED ON
PROVIDERS OF
NON-LINEAR
AUDIOVISUAL MEDIA
SERVICES
6. Broadly speaking, VLV considers that
the obligations proposed for providers of non-linear audiovisual
services are "fit for purpose" for the development of
a European Information Society. They fall into four main categories
which are designed either to:
(a) Prevent the deliberate deception of the
consumer (article 3g(a) which prohibits surreptitious audiovisual
commercial communication, article 3g(b) which prohibits subliminal
techniques, and article 3h(4) which prohibits the use of sponsorship
or product placement in news and current affairs programmes, and
of product placement in children's or documentary programmes);
(b) Require the consumer to be informed about
the provenance of a particular service or category of programme,
(article 3c on the origin of the audiovisual media service, article
3g(a) on the presence of an audiovisual commercial communication,
and article 3h(c) on the presence of a sponsorship agreement);
or
(c) Prohibit the audiovisual commercial promotion
of goods or services deemed to be injurious to public health (articles
3g(d), 3g(3), 3h(2), 3h(3) on the promotion of tobacco products,
medicines on prescription and alcoholic beverages, and article
3g(c) on the encouragement of socially or environmentally destructive
behaviour)
(d) Prohibit the abuse of free speech in
line with the restrictions permitted by article 10 of the European
Convention on Human Rights.(article 3d on the protection of minors,
article 3e on incitement to hatred)
Given the histrionic claims of some sections
of the audiovisual media communications industry about the draconian
nature of these proposed restrictions it is worth examining the
European Commission's proposed restrictions in more detail.
7. Preventing the deliberate deception of
the consumer
The proposed definition of surreptitious advertising
in article 1(h) of the Draft AVMS Directive, which is the same
as that used in article 1(d) the TV Without Frontiers Directive,
is extremely tightly drawn. It requires that any such representation
is both "intended by the broadcaster to serve advertising"
and might "mislead the public as to its nature". This
definition has allowed independent producers of television programmes
in the European Union to finance their productions by the use
of surreptitious advertising, which has, in turn, led EU Member
States such as Austria and Spain to allow product placement in
these categories of television programmes. This means that although
product placement is currently forbidden on UK television services,
the UK authorities, such as Ofcom, have been unable to prevent
product placement in programmes originating from other EU Member
States. Moreover, although article 3g (a) of the Draft Directive
prohibits surreptitious audiovisual commercial communication,
the definition of surreptitious advertising in draft article 1(h)
still requires that the broadcaster (and not the provider of an
audiovisual media service) the representation of to serve advertising.
VLV would therefore like to see the definition
of surreptitious advertising (a) to be widened to include all
providers of an audiovisual media service; and (b) to make the
sole criterion was that of misleading the public as to the nature
of the representation.
8. Requiring the consumer to be informed
about the provenance of a particular service or category of programme
The draft directive, like the TV without Frontiers
Directive, is based on the country of origin principle. This means
that there are now 25 EU Member States which can authorise a television
broadcast or an audiovisual media service, and this number will
increase as the EU is enlarged, and in addition, the provisions
of the Directive extend to other countries in the European Economic
Area. It is therefore imperative that the consumer is properly
informed in which Member State, and by which national regulatory
authority, a given audiovisual media service has been licensed.
There are four reasons for this.
— First, the consumer can immediately
raise with the appropriate authority any concerns about an alleged
infringement of the directive;
— Second, the proposed requirement
to inform the consumer about the presence of product placement
in an audiovisual media service, compensates all viewers in the
EU, but especially those in the UK, in regard to the shortcomings
in the definition of "surreptitious advertising" which
we noted in paragraph 7 (above);
— Third, the definition of a "commercial
communication" in article 2(f) of the e-Commerce Directive
(eCD), , since it exempts "any communications relating to
the goods, services or image of the company, organisation or person
compiled in an independent manner" from the obligation to
provide consumers with the information set out in article 6 eCD,
and thus permit the reintroduction of surreptitious advertising,
and unannounced product placement into non-linear audiovisual
media services;
— Fourth, any viewer of a non-domestic
television broadcast must be able to exercise a right of reply,
or equivalent remedy, under the provisions of article 23 of the
Directive. However, the conditions for exercising a right of reply
vary widely between different EU Member States, and despite the
requirement in article 23(3)—which was introduced in 1997—for
Member States to ensure that a sufficient time span was allowed
to exercise a right of reply, virtually nothing has been done
to ensure that viewers do indeed have sufficient time to exercise
that aspect of the directive in relation to transfrontier television
broadcasts.
— Moreover, although the Draft Directive
does require providers of audiovisual media services to provide
recipients of the service with information about the provenance
of the service (article 3c), and about the existence of a sponsorship
agreement or the presence of product placement (article 3h(c)),
the draft text contains no guidance to member states about either
the placing or the prominence of these pieces of information.
VLV considers that, while continuing to support
the country of origin principle, the European Union should take
steps to harmonise the manner in which these categories of information
are presented to consumers. To this end, together with its colleagues
in the European Alliance of Listeners and Viewers Associations
(EURALVA), it is proposing that the national regulatory authorities
of all Member States should be instructed to make arrangements
to harmonise the manner in which this information is presented,
across all EU Member States.
This could either be done by amending the constitution
and membership of the Contact Committee established by article
23 of the Directive, or by establishing a separate committee of
national regulatory authorities.
In addition, VLV would oppose any moves by the
UK Government to rely exclusively on the provisions of the e-Commerce
directive to regulate non-linear audiovisual media services.
9. Prohibit the audiovisual commercial promotion
of goods or services deemed to be injurious to public health
In the opinion of VLV, the prohibition on television
of advertisements, and the sponsorship of programmes, which promote
tobacco products and medicines on prescription have worked well
and have now been accepted by most consumers and viewers. The
same applies to the irresponsible promotion to young people of
the benefits of drinking alcoholic beverages. Moreover, the qualitative
prohibitions on television advertising and tele-shopping in article
12 of the Television without Frontiers Directive have also worked
well. It therefore seems perfectly sensible to extend all these
same prohibitions to audiovisual commercial communications and
audiovisual media services in articles 3g and 3h of the Draft
Directive. This will not only establish a level playing field
between television broadcasters and providers of non-linear audiovisual
media, but it will also ensure continuity of regulatory provision,
given that, as noted in recital 35 of the draft text, non-linear
audiovisual media services have the potential to partially replace
linear services.
VLV therefore supports the continuance and extension
of the qualitative prohibitions to both linear and non-linear
audiovisual media communication.
10. Prohibit the abuse of free speech
in line with the restrictions permitted by article 10 of the European
Convention on Human Rights.
Article 3e of the Draft Directive prohibits
any incitement to hatred based on sex, racial or ethnic origin,
religion or belief, disability, age or sexual orientation. Some
interest groups, such as the Audiovisual Stakeholders (an industrial
lobby group which does not include any consumers) have argued
that these prohibitions will have a chilling effect on free speech,
since they are not [yet] specifically banned in UK law. Moreover,
it will be recalled that article 10(2) of the European Convention
only permits the restriction of free speech provided that those
restrictions are (a) prescribed in law, (b) necessary in a democratic
society, and (c) and are enacted [among other things], for reasons
of public safety, the prevention of disorder, and the protection
of the reputation or the rights of others.
In the opinion of VLV, the prohibitions on incitement
to hatred which are proposed by the European Commission, are indeed
necessary in a democratic European society which is increasingly
marked by the global ebb and flow of different races, ethnic minorities,
people with varying religious beliefs, and attitudes towards age,
gender and sexual orientation. Moreover, such a ban would not
merely proscribe in law any incitements to hatred in audiovisual
media services which threatened the reputation and the rights
of other groups in a society, it would also be likely to ensure
public safety and prevent public disorder.
VLV therefore considers that these prohibitions
on free speech in audiovisual media services are both timely and
proportionate.
THE PLACE
OF ESTABLISHMENT
OF AUDIOVISUAL
MEDIA SERVICES
11. The Draft Directive extends the rules
of establishment which have traditionally applied to television
broadcasting services to all audiovisual media services, with
the exception that in determining the appropriate jurisdiction
for non-EU media service providers, the Member State with the
satellite uplink now takes precedence over the Member State which
has the satellite capacity.
VLV supports these changes.
DEROGATION FROM
THE COUNTRY
OF ORIGIN
PRINCIPLE
12. Under Article 2a of the Draft Directive
a Member State may only derogate from the Directive (ie block
an audiovisual media service from another EU Member State) if
it manifestly, seriously and gravely infringes article 22 (the
protection of minors) and/or article 3e (incitement to hatred).
The former is an area where the UK has traditionally exercised
this power in relation to pornographic television broadcasts,
and it could be appropriate to exercise the latter in relation
to broadcasts from another EU Member State which might incite
public disorder.
VLV therefore continues to support these provisions,
although it also recognises that in exercising the latter power,
it may be necessary for the UK to demonstrate in law that the
exercise of its power to restrict the rights of UK citizens to
receive information and ideas from an audiovisual media service
based abroad are indeed necessary in a democratic society.
13. The "Audiovisual Stakeholders"
claim that non-linear audiovisual media services are information
society services that are covered by the e-Commerce Directive
(eCD), and therefore fall outside the scope of the new Draft Directive.
Moreover, the audiovisual stakeholders claim that "[T]he
fact that Member States can derogate from eCD has been cited as
a justification for extending the TVwF Directive." At this
point in time, VLV has been unable to obtain any firm clarification
from either Ofcom or from UK civil servants, about the future
range and extent of the future overlap between the two directives.
At this stage therefore, VLV will only consider the implications
for consumers of audiovisual media services of the freedom of
the UK to derogate from the two directives, although we would
also welcome further investigation into this aspect by the House
Lords.
14. The first point to emphasise is that
the freedom to derogate is a de facto contradiction to
the country of origin principle on which both directives are based.
In our view therefore, it should be used as sparingly as possible.
It would be quite wrong to deny UK users of audiovisual media
services the right to use an audiovisual media service that has
been approved by another EU Member State. It would also contravene
the fundamental principle of free trade between EU Member States.
15. The second aspect of derogation is that
the power to derogate in the Draft Audiovisual Media Services
Directive is tightly limited. [see paragraph. 12 (above)]. However,
the e-Commerce Directive offers a Member State a range of several
reasons for derogation, including the curious phrase "the
protection of consumers, including investors".[eCD, article
3(4)(i)] VLV has failed to discover in what ways investors can
be classified as consumers of the services in which they invest.
16. The third aspect of derogation is related
to the freedom of a Member State, including the UK to delegate
its derogated powers to a co-regulatory or a self-regulatory body.
The Inter-institutional agreement on better law-making, which
was agreed between the European Parliament, the Council of the
European Union and the Commission of the European Communities
in December 2003, lays down guidelines for the introduction of
co-regulation and self-regulation. Crucially, the Inter-institutional
agreement envisages the introduction of co-regulation on a national
basis (articles 18-21), but limits the introduction of self-regulation
to self-regulation at a European level (articles 22-23). However,
the UK audiovisual stakeholders claim that self-regulation "would
be the most effective way to patrol so-called "non-linear"
services." Their argument is that "alternative regulatory
mechanisms are more effective in monitoring the fast-moving and
disparate "non-linear" industry than state regulation
at a European level." [http://www.audiovisualstakeholders.org]
Unfortunately, this self-justificatory phrase elides both self-regulation
with co-regulation, and state regulation with European level regulation.
It fails to recognise the difference between the minimum provisions
specified in the draft directive, and the manner in which they
are implemented by individual Member States, it also flies in
the face of the careful distinctions which were drawn in the European
Inter-institutional Agreement between co-regulation and self-regulation.
It ignores the fact that EU Member States are allowed to introduce
domestic regulations which are more strict than those required
in the Draft Directive. It also ignores the fact that properly
constituted co-regulatory arrangements can respond just as quickly
as self-regulatory mechanisms in the fast-moving and disparate
"non-linear" industry.
17. Worse, from the consumer's perspective,
if every Member State is empowered to derogate its non-linear
audiovisual media services from the eCD and then to delegate them
to a domestic self-regulatory mechanism, will be the failure of
the European Union to establish any semblance of common European
standards in matters of public policy, in any of the following
areas—the protection of minors and the fight against any
incitement to hatred on the grounds of race, sex, religion or
nationality, violations of human dignity concerning individual
persons, or the protection of public health.
VLV considers that the requirement in the European
Inter-institutional agreement for audiovisual stakeholders to
establish self-regulatory arrangements at the European level remains
a powerful incentive for those stakeholders to harmonise their
self-regulatory arrangements across the whole of the European
Union, and it therefore welcomes the preliminary discussions designed
to achieve this aim which have already been taking place under
the leadership of the European Commission.
GENERAL REQUIREMENTS
ON ALL
AVMS PROVIDERS
18. VLV supports the requirements in article
3d to ensure that providers of audiovisual media services do not
make their services available in such a way that might seriously
impair the physical, mental or moral development of minors.
19. VLV supports the proposal in article
3c to introduce a requirement for every media service provider
to provide basic identification requirements and contact details.
20. VLV also supports the proposal to prohibit
the incitement to hatred based on se, racial or ethnic origin,
religion or belief, disability, age or sexual orientation.
21. VLV also supports the proposal to extend
the right of reply provision to all linear services.
22. Moreover, VLV would like to see the
right of reply provision extended to a range of non-linear services.
From a user's perspective, the exercise of a right of reply empowers
the user by enabling her/him to have access to both sides of an
accusation about the behaviour or the views of an individual.
It is not merely an excuse for an aggrieved person to rebut an
accusation. This will be especially important on the so-called
social networking services, such as YouTube and MySpace. If used
well, these services can enable similarly inclined people to find
one another, but if used malignly, they can enable an unscrupulous
minority to edit and manipulate audiovisual media material for
political propaganda purposes in order to create a mob of partially-informed
users. The most obvious example has been the preparation by terrorists
of the pre-suicide video for subsequent release. But the potential
political abuse of non-linear audiovisual media material has also
reached the USA. In the recent primary elections for the American
senate, Senator Joseph Lieberman lost the primary election partly
because the aides of his political opponent used the Internet
to spread repeatedly brief audiovisual clips of Lieberman's gaffes.
There is no way of stopping the distribution of audiovisual clips
of politically embarrassing moments, particularly on amateur blogs
which are anyway excluded from the purview of the draft directive.
However, VLV considers that it would strengthen the democratic
electoral and political process if the right to reply, or its
equivalent, which is allowed on all linear services, were extended,
albeit in a modified form, to all licensed non-linear services.
PRODUCT PLACEMENT
23. Although product placement is currently
banned in the UK, the prohibition on surreptitious advertising
in the current TVwF Directive has not prevented some EU Member
States such as Austria and Spain from allowing product placement
within their TV services. The proposed changes in the new draft
directive would remedy this confusion by permitting properly regulated
product placement. However, these changes would not require the
UK, which currently bans product placement, to allow its introduction
into UK services, since an individual Member State would still
be allowed to introduce regulations that are stricter than those
which are set down in the directive.
24. VLV broadly supports the proposed limits
on product placement in the directive, namely that:
— There shall be no product placement
in news or current affairs programmes, or in audiovisual media
services from children and documentaries;
— Neither the scheduling, nor the editorial
content of the programme may be influenced in a manner that affects
the editorial independence of the media service provider, nor
may it directly encourages purchases; and
— Viewers must be clearly informed
about the presence of product placement.
— However, VLV considers that the UK
Government should pay closer attention to the last point. Firstly,
even though the UK government's Issue Grid claims that viewers
must be clearly informed "at the beginning, during and/or
at the end of the programme", the text of the draft directive
actually says that programmes containing product placement "must
be identified at the start of the programme in order to avoid
any confusion on the part of the viewer." The difference
is that the formulation in the UK Government's Issue Grid allows
the programme maker to choose where and when to inform the viewer,
whereas the Commission's formulation requires the notification
to be placed at the start of the programme. VLV prefers the formulation
of the EU Commission in the Draft Directive.
— Indeed, VLV would go further and
require the viewer to be clearly informed at the beginning, during,
and the end of the programme.
— Moreover, VLV supports the proposal
put forward by the European Alliance of Listeners and Viewers
Associations, for the information about the presence of product
placement in a programme to be presented in a standard form in
each Member State. This would ensure that UK viewers were properly
and clearly informed about the presence of product placement,
in an identical manner, regardless of the EU Member State in which
the audiovisual media service was licensed. The details could
be agreed by a Committee of National Regulatory Authorities, such
as that proposed in paragraph 8 (above).
LISTED EVENTS
AND SHORT
REPORTS
25. VLV considers that the provision in
article 3a for a Member State to draw up a list of major events
which members of the public must be allowed to see on free-to-air
television has worked well and should be retained.
26. VLV considers that the UK should support
the introduction on linear services of a right of access to short
news reports of events of high public interest. This right already
exists in UK law, but by including it in the new EU Directive
it would enable UK broadcasters—and thus all UK viewers—to
have access to short reports of such events in all the other Member
States of the EU and the European Economic Area.
VLV therefore supports both of these proposals.
CONCLUSION
27. In general, VLV supports most of the
proposals in the Draft Directive on Audiovisual Media Services.
It considers that all of the duties which will be imposed on non-linear
services are reasonable and not unduly burdensome. In general
the burdens imposed on linear services such as television broadcasting
have been relaxed.
28. VLV also recognises that non-linear
audiovisual services are developing in a rapid and fast changing
manner, but even so it considers that arrangements for co-regulation,
as envisaged in the EU's Inter-institutional Agreement, will be
able to ensure that the UK is able to guarantee a speedy and flexible
regulatory response to a fast-changing audiovisual media world.
29. In addition, VLV supports the proposal
from the European Alliance of Listeners and Viewers Associations
proposing that National Regulatory Authorities should be charged
with the responsibility of harmonising the manner in which the
regulatory authorities in each EU Member State require users of
audiovisual media services and viewers of television broadcasting
services to be informed about the country of origin of the service,
the existence of product placement, and the manner in which to
exercise a right of reply to a transfrontier audiovisual media
service.
30. Finally, VLV considers that in order
to ensure that UK citizens can keep themselves properly informed,
the right of reply—or fair treatment—should be extended
to all non-linear audiovisual media services.
2 October 2006
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