Supplementary memorandum by the Department
for Culture, Media and Sport
NOTE: This document sets out the Department's
answers to the 11 questions which the Committee has set out in
its call for evidence. These answers are based on the original
proposals for the amendment of the Television Without Frontiers
Directive which were published by the European Commission in December
2005 (COM(2005)646 final) and which are the specific subject of
the Committee's Inquiry. They do not reflect possible amendments
to these proposals which have been under discussion in the Council
of Ministers and the European Parliament since December 2005.
3(a) In our current rapidly converging and
evolving technological and market environment, is it appropriate
to try to recast the regulatory framework?
We agree that technological and market changes
have made it necessary to reconsider the regulatory framework
for television broadcasting at the European level.
2. As the question implies, these changes—in
particular, the spread of digital television, broadband, and mobile
networks, and the ever-increasing capabilities of the devices
which these networks serve—has led to the phenomenon of
convergence. As the range of what is available on each platform
increases, there is increasing overlap or interchangeability in
what they are capable of offering. Television and television-like
content can be offered over the Internet and over mobile networks.
Conversely, some types of television service can offer interactive
elements that were formerly the preserve of the Internet or mobiles
(TV bingo channels offer a good example of this).
3. This in turn has led to a massive expansion
in the number of actual or potential products, services and business
models. Some of these, such as video-on-demand delivered over
the Internet, are adaptations or variants of the 20th century
model of broadcasting to which we have become accustomed.
4. But others, such as interactive games
and weblogs involving user-generated content, are entirely new,
and are in turn beginning to erode the clear distinction that
has existed in the media world for many years—indeed, for
centuries—between producer and consumer. Anyone can be his
own Web publisher, and convergence will increasingly mean that
there will be a wide range of platforms on which this user-generated
product is accessible.
5. We do not disagree with the proposition
that now is a suitable time to re-examine the regulatory framework
which applies to these services—although it will plainly
be important to reassess the issue in not very many years' time.
It does not necessarily follow, however, that we need to recast
that framework to embrace all these services—and indeed
the Government's strong view is that this is not what is needed.
6. At the EU level, some degree of modernisation
of the rules which apply to TV broadcasting would in our view
be appropriate, in particular in as far as this involved the introduction
of better regulation principles and a lighter regulatory touch.
But that is not what is on offer from the European Commission's
proposal for amending Directive 89/552/EC (the Television Without
Frontiers—TVWF—Directive).
3(b) What are the advantages and disadvantages
of regulating this area? Are the regulatory costs proportionate
to the benefits?
7. At the national level, the power, pervasiveness
and impact of television (and radio) broadcasting have always
been thought to justify regulatory intervention by Governments
in democratic countries. In our view they still do. In the UK,
successive Governments have used their power to license and regulate,
along with control of the allocation of the frequency spectrum,
not only to secure fundamental standards in the acceptability
of what is broadcast but also to ensure the continuing strength
of public service broadcasting by the BBC, ITV, Channels 4 and
5 and S4C. We regard this as a major public benefit.
8. These national arrangements need to be
kept under review and periodically updated. In particular, since
they involve interference in free speech, they need to be kept
proportionate to the public policy goals sought.
9. At the European level, the development
of cross-frontier broadcasting technology, in particular by satellite,
has provided an opportunity to realise the benefits of a Single
Market underpinned by basic standards which all EU Member States
are obliged to apply to their television broadcasters.
10. This Single Market is based on the rules
set out in the TVWF Directive, in particular the "Country
of Origin" principle which it embodies. Article 2 of the
Directive sets out rules which assign jurisdiction over each TV
broadcaster in the EU to its single "Country of Origin".
Article 2a, subject to a limited power of derogation, then requires
Member States to "ensure freedom of reception" of these
services on their territory. Articles 3a to 22a, and Article 23,
set out the basic standards which Member States must apply to
all TV services under their jurisdiction.
11. The Country of Origin principle in the
TVWF Directive has proved central to the development of a genuinely
pan-European broadcasting market. The benefits of this, in our
view, come not only from the economic opportunities which it affords
to multinational broadcasters (including many based in the UK)
but also from the range and diversity of the TV services which
viewers in the UK and around Europe can enjoy. The growth of European
television services also serves to support and promote the consumer
electronics and production sectors and associated services.
12. Any system of regulation comes with
potential disadvantages. In this case, intervention at the European
level risks having an unwarranted impact on freedom of speech
and expression. It also risks affecting economic and technical
development, and should therefore as far as possible operate on
better regulation principles and with as light a touch as possible.
13. Beyond that, regulation at the EU level
of broadcasting or audio-visual media services needs to be sensitive
to the fact that it requires Member States to apply it to their
own national services. Common standards which are set at Community
level should be couched in terms which each Member State is able
to apply in its own social and cultural context.
14. From the other point of view, the Country
of Origin principle necessarily reduces the scope for the application
of public policy interventions to TV services from abroad, which
may take a significant share of the local market, and lead to
advertising revenues accruing in another Member State.
15. So far as proportionality is concerned,
the Government takes the view that the regulation of TV broadcasting
at both the UK and the EU level has up to now been proportionate
to the benefits which it has produced. The European Commission's
proposals for amending Directive 89/552/EEC would, in our view,
enable this to continue so far as the regulation of television
broadcasting is concerned (though we see room for improvement,
especially in the light of increasing competition to advertiser-funded
free-to-air channels).
16. But in as far as the Commission's proposals
would affect "non-linear" new media services, the Government's
view is that its regulatory costs would exceed its benefits, and
by a considerable margin. The fundamental proposition underlying
the Commission's proposals is that a Single Market in these services
would produce economic benefits, and that the imposition at EU
level of the requirements set out in Articles 3c to 3h of the
proposed amendment are a necessary condition for the creation
of that Single Market.
17. There is already a functioning Single
Market for these services, supported by Directive 2000/31/EC (the
e-Commerce Directive). Our view is that the costs of imposing
a new tier of sectoral regulation on non-linear services would
be greater, and probably considerably greater, than the benefits
that Europe would gain in terms of what can be only a minor improvement
in the existing Single Market for them. They could cause economic
damage to this dynamically expanding sector, in particular through
the imposition of new, unnecessary regulatory costs which could
discourage innovation and cause operators to relocate outside
the EU.
18. The partial Regulatory Impact Assessment
which we published along with our consultation document on the
Directive in June this year elaborated this argument. It is borne
out also by a recent report from Rand Europe that OFCOM have published
which concentrates on two "non-linear" sectors—online
games and mobile multimedia—which could be caught by the
terms of the Commission's proposals.
4(a) Does the Proposal sufficiently liberalise
the provision of broadcasting services within the European Union?
19. The basic rules which the existing TVWF
Directive requires Member States to impose on broadcasters concern
the protection of minors and public order (Articles 22 and 22a),
rights of reply (Article 23), cross-border coverage of events
of major importance for society (Article 3a), "quotas"
of European and independently-produced content (Articles 4 to
6), film rights (Article 7) and advertising (Articles 10 to 19a).
20. The Commission's proposals would add
new elements to two of these requirements. In terms of the protection
of public order, the proposals would require Member States to
ensure that TV broadcasters did not transmit material which contained
incitement to hatred on the grounds of sex, racial or ethnic origin,
religion or belief, disability, age, or sexual orientation (new
Article 3f), as compared with the existing Article 22a requirement
in terms of race, sex, religion or nationality.
21. The proposals would also add a new element
to the requirements on events of major importance, in that they
would create a right of access to the TV signal for "short
news reports" (new Article 3b). Such arrangements are currently
permitted by the Copyright Directive, and are currently therefore
at Member States' discretion.
22. The Commission's proposals do however
contain important simplifications of the TVWF rules on television
advertising. They also contain provisions to allow product placement.
These things are however combined with a de-liberalisation in
one particular area which appears to have no justification.
23. The TVWF Directive contains both qualitative
and quantitative requirements on advertising—that is, rules
about what can be advertised and how it can be advertised (the
qualitative rules) and about how much advertising there can be
(the quantitative rules).
24. With the exception of product placement
(where the Commission are proposing, in new Article 3h, that Member
States should be able to permit it subject to certain conditions)
all of the proposals for change in television advertising rules
concern the quantitative rules. The current Directive contains
an array of these, set out at Articles 11 and 18.
25. Article 11 contains a complicated '45-minute'
rule for feature films, which means that these cannot contain
an advertising break unless the film is 45 minutes long, and in
broad terms says that they can then have one ad break for every
45 minutes' duration. Article 11 also says that when other types
of programme have advertising breaks these should be separated
by intervals of at least 20 minutes, but that news and current
affairs programmes, documentaries, religious programmes and children's
programmes cannot contain advertising breaks if they last less
than 30 minutes.
26. Article 18 says, in a rather complicated
way, that that the maximum time per hour that can be devoted to
advertising is 20 per cent (12 minutes). The Commission have proposed
the removal of much of this detailed regulation. But the 20 per
cent/12 minutes per hour rule would remain. So too would the 45-minute
rule, but it would be turned into a 35-minute rule and apply to
films, children's programmes and news programmes.
27. This has the effect of subjecting news
and children's programming to a rule that does not currently apply
to it—that is, to the requirement that these programmes
cannot contain advertising breaks unless they are at least 35
minutes long. This can only have a negative effect on the transmission
of this type of programming by commercial stations, and we have
not heard the Commission offer any justification.
28. The rest of these changes are welcome
in as far as they go, but there is a strong argument that they
do not go far enough. Except perhaps for relays of religious services—which
the Commission propose should contain no advertising breaks at
all—the argument for having restrictions of this kind for
any type of programming is not made out.
29. In our view, the need for these restrictions
is based on a broadcasting environment of spectrum and service
scarcity which is largely a thing of the past. Today, there is
an enormous range of television services and the universal availability
of a greatly increased number of channels will be secured by the
switchover to digital broadcasting. There is also increasing competition
for people's attention, often from other audio-visual services,
notably the Internet, but increasingly through mobile devices.
30. In these circumstances, it is not clear
to us why Member States should not, if they want, be able to allow
commercial broadcasters to decide these things for themselves
and be free to strike their own balance between advertising and
editorial content, subject to viewer acceptability—just
as is the case with other media such as the Internet, radio and
the printed press.
4(b) Does the proposal contain measures that
will effectively protect public interest objectives?
31. The proposal bears on three public
interest objectives—the protection of minors and public
order, freedom of speech, and economic objectives in terms, for
example, of technological development, economic growth, and jobs.
32. It would not achieve anything in the
first of these areas and is potentially harmful in the other two.
On the protection of minors and public order, the proposal purports
in Articles 3d and 3e to provide protections in both broadcasting
and "non-linear", on-demand services.
33. In as far as they would apply to online
services, the protection that 3d and 3e would offer would largely
be illusory, since they do nothing to prevent adults or children
accessing services from outside the EU. The use by parents of
blocking and filtering mechanisms, increased media literacy, and
industry self-regulation on the lines of the successful Internet
Watch Foundation scheme offer far more effective mechanisms for
preventing access to undesirable content.
34. For video-on-demand, there is a successful
UK industry self-regulatory scheme already in existence, operated
by the Association for Television-on-Demand (ATVOD). The protections
which Articles 3d and 3e offer in terms of TV broadcasting services
do not go beyond what is already required of UK-based broadcasters
under OFCOM's Broadcasting Code.
35. The proposal in Article 3e to apply
EU-wide controls to online content that do not apply to, for example,
printed content has implications for freedom of speech online.
Interventions in free speech must be proportionate to the issues
they are trying to address and take account of national circumstances,
but we are not aware of anything which would require a measure
of this sort to be taken across the EU. And the advertising rules
at 3(g) would require us to introduce some State intervention
in the Advertising Standards Authority's successful and widely-respected
self-regulatory scheme.
36. The TVWF Directive has up to now been
beneficial in economic terms, and the Commission's proposals would
allow for the continuation of those benefits in so far as they
affect television broadcasting. The extension of the scope of
the Directive to non-linear services and the imposition on them
of the requirements set out in Articles 3c to 3h would however
in our view have very much the opposite effect.
4(c) Does the Proposal achieve an appropriate
balance between the objective of harmonisation and right of Member
States to control audiovisual media services in a manner which
reflects national concerns and interests?
37. No. These proposals would impose requirements
on the United Kingdom and other Member States which go well beyond
the essential minimum standards on which there is a consensus
across the EU. In particular the prohibitions on incitement to
hatred are very broad. They go well beyond general law in the
UK, where the existing prohibitions are largely confined to racial
hatred. They therefore interfere unjustifiably with freedom of
speech in this particular sector.
38. Similarly, the prohibitions in respect
of the protection of minors go well beyond the statutory protections
which are already in place applying to the on-line sector. To
apply prohibitions of this kind sensitively, without a disproportionate
impact on freedom of speech, would in our view require a detailed
regulatory regime such as a licensing system, underpinned by codes
of practice as is the case with broadcasting. Any such scheme
would impose new regulatory burdens.
5(a) Is there agreement on the Commission's
proposal to distinguish between linear and non-linear services?
39. We agree in principle with a distinction
between "linear" television services and "non-linear"
on-demand services, but it is in our view possible to improve
the drafting in order to make the distinction clearer. We agree
that there is a fundamental difference between television services
that are broadcast simultaneously to masses of people and services
which—though they might contain similar material—are
"pulled down" on demand by the user.
40. "Linear" services, as we say
in paragraph 7, have a power and pervasiveness that non-linear
services lack. Their users have expectations of them in terms
of detailed regulation in the interests of public protection beyond
what is expected of "non-linear" services. Users of
non-linear services have more choice and control over what they
access, and how they access it, than the traditional model of
"passive" viewing offers to consumers of linear television.
41. The Government therefore does not at
all agree with the proposals which the Commission have made for
sectoral regulation of the content of "non-linear" services.
42. We are working to minimise the extension
of the scope of the Directive as far as possible. As part of that,
we have promoted amendments which would limit the extent of the
"non-linear" tier of the Directive, confining it to
video-on-demand services.
5(b) Does the Proposal go far enough in facilitating
the free movement of broadcasting services?
43. We think that it does—it is difficult
in fact to see how it could go any further. Although the proposal
would amend the TVWF Directive, it would leave the existing framework
for determining jurisdiction over TV broadcasting services, set
out at Article 2, intact. That framework provides a logical sequence
of tests which assign jurisdiction over a TV broadcaster to one
Member State—its "Country of Origin"—and
one only.
44. The proposal applies this structure
also to "non-linear services", and the UK Government
of course objects to that, since we do not think that these services
should be included in this Directive at all. But that does not
affect the suitability of the Article 2 framework for assigning
jurisdiction over services covered by the Directive.
45. The proposal makes one other, minor
change to the Article 2 framework, and we think this is sensible.
It reverses the way in which the Directive assigns jurisdiction
over satellite TV stations which originate from outside the EU,
and have no head office or workforce here.
46. The current Directive assigns jurisdiction
over such stations to the Member State whose satellite capacity
they are using. The draft proposal assigns it instead to the Member
State in which the satellite uplink—the station sending
the signal up to the satellite to re-transmit back to earth—is
situated.
47. This change reflects recent experience
in France, whose national regulator (the CSA—Conseil
Superieur de l'Audiovisuel) found itself having to take action
against two stations from the Middle East containing anti-Semitic
propaganda which were being relayed in Europe via satellite. France
in fact suggested this change, and the UK supports it. It is easier
in such circumstances to act against the satellite uplink rather
than against the owners of the satellite, who may not have any
direct control over what is on it.
48. Under the Commission's proposals, Member
States would retain their power under Article 2a of the Directive
to derogate in respect of television broadcasts which "manifestly,
seriously and gravely" offend against the standards in respect
of the protection of minors and public order set out at the current
Articles 22 and 22a. (The Commission's proposal collapses Article
22a into new Article 3e).
49. The United Kingdom supports retaining
this power of derogation. We are in fact the only Member State
to have used it, having taken action under the Broadcasting Act
1990 to proscribe five pornographic satellite TV channels from
elsewhere in the EU. The most recent proscription took place last
year.
50. Proscription in the UK cannot take a
station off the air. But it means that a range of acts in relation
to the channel become criminal offences in the UK, such as selling
decrypt cards "primarily" for the purpose of watching
it, advertising it here, and advertising on it.
51. The Commission's proposals would however
remove much of the power of derogation which Member States have
in relation to "non-linear" services under Article 3.4
of the e-Commerce Directive (2000/31/EC). The exact relationship
between the e-Commerce Directive and the Commission's proposals
is not entirely clear, but Recital 10 of the proposals says that
Member States "can no longer derogate" under the Directive
on grounds which the proposals cover and we assume that effect
would be given to this in revision of the e-Commerce Directive
in due course.
5(c) What role should industry self-regulation
play in the new regulatory framework?
52. So far as TV broadcasting is concerned,
the Government takes the view that the existing regulatory arrangements,
involving OFCOM, are working well—these allow regulation
to take place with as light a touch as possible. We have of course
recently announced revised arrangements for the regulation of
the BBC, as part of the Charter Review process.
53. For non-linear services—in as
far as these are included in the finalised proposal at all—the
Government again wishes to see better regulation with as light
a touch as possible. But, despite references in the Commission's
proposals such as that at Recital 25, we are clear that a revised
Directive cannot allow for pure industry self-regulation—that
is, regulation entirely by the industry itself, with no legislative
or regulatory backstop.
54. There is a lack of clarity in the Commission's
proposals about the regulatory regimes that will be acceptable
in Member States. The Interinstitutional Agreement mentioned at
Recital 25 applies to regulation at the Community rather than
at the Member State level. The language of the Commission's proposals
however requires Member States to ensure that the various
objectives are attained, are we clear that this would place the
Government under a duty which it cannot discharge by leaving implementation
entirely to the industry.
55. That is a great pity, since UK industry
has self-regulatory arrangements already in place in some of the
fields covered by the Commission's proposals, and these arrangements
work. We mentioned earlier the scheme for video-on-demand, run
by ATVOD and the role of the Advertising Standards Authority.
Others include the Internet Watch Foundation's work in respect
of child pornography and a voluntary scheme run by the mobile
phone industry.
56. Whatever the outcome of the Commission's
proposals, we have pressed for amendments to ensure that these
schemes can continue with as little disruption as possible.
5(d) Should broadcasters be given greater
flexibility in respect of the commercial arrangements they enter
into for the financing of programmes?
57. We agree that they should, especially
given the increased competition for advertising revenue which
UK commercial public service broadcasters may come under. The
Commission's proposals in respect of relaxing the quantitative
rules on TV advertising are welcome, subject to the comments we
have made under 3b above. But there are other important caveats.
58. The Commission's proposals allow for
programme sponsorship, which is already permitted under the existing
Directive. They also allow for product placement, whose status
under the existing Directive is ambiguous.
59. Product placement (defined as the broadcaster
accepting payment to include a product in a programme) is not
allowed in the UK, though there is at least one Member State (Austria)
which specifically permits it.
60. OFCOM's rules however do not prevent
broadcasters from accepting props from companies who might want
to advertise them or from showing bought-in programming (for instance,
US TV series) whose original producers had entered into product
placement deals. We are concerned that the Commission's proposals
for identifying programmes with product placement would interfere
with acquired programming in an unjustified and impracticable
way, not least by focusing on a payment not only to a broadcaster
or "media service provider" but to anyone in the value
chain.
61. OFCOM last year launched a public consultation
on product placement, and we expect to receive their report soon.
We also posed a specific question about product placement in our
own public consultation about the Commission's proposals, whose
closing date was September 8th.
62. We will need to consider the issue in
the light of a full consideration of OFCOM's report and the responses
to our own consultation. In doing so, we will bear in mind the
importance of continuing to ensure (as OFCOM's rules currently
do) that TV viewers should always be in a position to know when
they are being sold to.
5(e) What controls should be imposed on non-linear
services in respect of illegal and harmful material, such as the
granting of a "right of reply"?
63. As already stated, the Government does
not think that "non-linear" services should be subject
to sectoral controls. Our view is that there is no justification
for these. These services should remain—as is the case in
the UK—subject to the same restrictions as apply to ordinary
speech or to newspapers. What is illegal off-line is also illegal
on-line, and that is the way it should stay.
64. It follows that we do not consider that
there should be a legally enforceable online right of reply. Questions
of principle aside, it is unclear how such a right could reasonably
be exercised.
65. To their credit, the Commission do not
in fact propose one. Their proposals do not amend the existing
provisions about rights of reply in the TVWF Directive (Article
23). These would therefore continue to apply to TV broadcasters
only.
66. A right of reply, or equivalent, is
of course entirely appropriate for TV services, given their reach
and impact. In the UK, the complaints scheme formerly operated
by the Broadcasting Standards Commission is now operated by OFCOM,
whose adjudications can require broadcasters to transmit retractions
and apologies.
5(f) Do quotas continue to be an appropriate
mechanism for promoting the production of "European works"?
67. No. The UK has never favoured quotas.
They are an arbitrary and essentially protectionist mechanism.
68. Their partial extension to online services,
as suggested in the Commission's proposals (new Article 3f), is
undesirable in principle, though their obligations are not onerous.
We favour other mechanisms, such as obligations on public service
broadcasters, and especially the BBC, and provisions for supporting
UK film production and its broadcast.
October 2006
Annex I
THE SCOPE OF THE DIRECTIVE
In its present form, the Directive concerns
TV broadcasting only. The Commission proposed that it should instead
be changed into an "Audio-Visual Media Services" Directive
(AVMS) covering what could turn out to be a very wide range of
on-demand, non-linear services and "new media" products.
In the formal proposal which they published in December the Commission
defined the audio-visual media services which the new Directive
would cover as:
....a service as defined by Articles 49 and
50 of the Treaty the principal purpose of which is the provision
of moving images with or without sound, in order to inform, entertain
or educate, to the general public by electronic communications
networks....
Examination of this and discussion of it with
the Commission and other Member States within the Council of Ministers
reinforced our concern about the types of service that the Commission's
formulation might cover. For example, private individuals who
create and publish weblogs or personal websites can turn them
into a small-scale commercial activity. They might allow third
parties to place advertisements on their site, allow their site
to contain sponsored links, or use micropayment systems to collect
revenue from visitors to the site. These practices are increasingly
common, and internet service providers supply software packages
which make them easy to set up.
In our view it was quite likely that any site
or blog which generated revenue in these or other ways would be
liable to be treated as a "service" within the meaning
of Articles 49 and 50 of the Treaty. A site which had as its principal
purpose the provision of moving images—for example, a blogger
delivering what he wanted to say to camera rather than putting
it in writing—would then be classed as an "audiovisual
media service", and we saw this as utterly disproportionate.
Most global and national news agencies now have
websites which contain substantial moving picture audio-visual
content. It is very doubtful whether websites of this kind would
benefit from the exemption in Recital 15 for "electronic
versions of newspapers and magazines". There is no actual
printed version (for example a Reuters newspaper) to which
they correspond.
Similarly, the existing websites of actual newspapers,
many of which also have moving picture content, might also be
covered by the Directive. As the moving-picture content of these
sites increases, as is likely, it will become steadily clearer
that delivering moving pictures for information and entertainment
actually is their principal purpose, and steadily less
arguable that they are "electronic versions" of the
printed product.
There are similar issues in relation to online
games and online gambling, both of which contain substantial moving
picture content and are plainly there to "entertain"
their users.
PROBLEMS WITH
AN EXTENDED
SCOPE OF
THE DIRECTIVE
The difficulty which the Government had with
the extension of the scope of the TVWF Directive which the Commission
proposed was that it would apply new, sector-specific, controls
to the new media sector. The Commission has failed to make a sound
case for harmonising the controls for these services. Nor is the
online services industry asking for it.
The controls which Member States would need
to apply to non-linear services under the Commission's proposals
are less stringent that those which apply to traditional "linear"
broadcasting services.
The exact extent of the new media services which
would be covered by the Commission's proposals is not clear. It
is a key priority to seek clarity on this, in as far as "non-linear"
services remain within the scope of the Directive.
Unnecessary regulation of new media services
will hinder their growth and development, lead to delayed or foregone
investment, and reduce the jobs and other economic benefits which
they can bring to Europe. This would run contrary to the Lisbon
and i2010 agendas.
The Directive would impose an unnecessary extra
tier of regulation. These services are already covered by the
e-Commerce Directive.
Member States can and have already introduced
self and co-regulatory schemes to protect minors and the public
interest. Self regulation is the most effective way of achieving
these ends—particularly when it comes to on-demand and online
services. This Directive, however, would not allow self regulation
of non-linear audiovisual media services.
Annex II
AMENDMENTS PROPOSED BY THE UNITED KINGDOM
The UK's proposed amendments cover five issues.
1. THE SCOPE
OF THE
DIRECTIVE
"Article 1
For the purposes of this Directive:
(a) `audiovisual media service' means
a service as defined by Articles 49 and 50 of the Treaty, provided
by a media service provider via an electronic communications network
within the meaning of Article 2(a) of Directive 2002/21/EC of
the European Parliament and of the Council, and which is either
television broadcasting as defined in Article 1c) or an on-demand
service as defined in Article 1e)
(b) `media service provider' means the
natural or legal person who has editorial responsibility for the
audiovisual media service.
(c) `television broadcasting' (ie a linear
audiovisual media service) means an audiovisual media service
provided by a media service provider, who decides upon the moment
in time when a specific programme is transmitted for simultaneous
viewing by the general public, that is by an indeterminate number
of potential viewers, and establishes the programme schedule
(e) `on-demand service' (ie a non-linear
audiovisual media service) means an audiovisual media service
provided by a media service provider, which has the following
characteristics:
(i) Its principal purpose is the provision
of programmes which are in a format suitable for television broadcasting,
for example feature-length films, sports events, situation comedy,
documentary, children's programmes and original drama;
(ii) The specific programme is viewed
at the individual request of the user on the basis of a catalogue
of programmes selected by the media service provider; and
(iii) The nature of and means of access
to the service would lead the user reasonably to expect regulatory
protection within the scope of this Directive. "
Supporting Recitals
Recital 13
"The definition of audiovisual media
services covers only audiovisual media services, whether scheduled
or on-demand, which are mass media, that is, which are intended
for reception by, and which could have a clear impact on, a significant
proportion of the general public. The scope is limited to services
as defined by the Treaty and therefore covers any form of economic
activity, including that of public service enterprises, but does
not cover activities which are primarily non-economic, such as
private or semi-private websites. Nor does it cover services consisting
of the provision or distribution of audiovisual content generated
by users for the purposes of sharing and exchange within communities
of interest. The definition excludes all services not intended
for the distribution of audiovisual content, ie where any audiovisual
content is merely incidental to the service and not its principal
purpose. The definition also excludes services such as gambling
services and online games. "
Recital 14
[Deleted]
New Recital 16a
"A media service provider must exercise
editorial responsibility over his service. Editorial responsibility
means the exercise of prior control both over the selection of
the programmes and over their organisation either in a chronological
schedule, in the case of television broadcasts, or in a catalogue,
in the case of on-demand services. Editorial responsibility does
not necessarily imply any legal liability under national law for
the content or the services provided. "
2. IMPLEMENTATION
AND REGULATION
"Article 3
...
3. When implementing and enforcing the
provisions of this Directive, Member States shall promote self-regulatory
and co-regulatory regimes. These regimes shall be such that are
broadly accepted by the main stakeholders and provide for effective
enforcement in the respective Member States. "
Amended Recital 25
In its communication to the Council and the
European Parliament on Better Regulation for Jobs and Growth in
the European Union, the Commission stressed that a careful analysis
on the appropriate regulatory approach, in particular whether
legislation is preferable for the relevant sector and problem,
or whether alternatives such as co-regulation and self-regulation
should be considered. [ ... ] Experience showed that co-
and self-regulation instruments implemented in accordance with
different legal traditions of Member States can play an important
role in delivering a high level of consumer protection, since
these objectives, particularly in the context of new media services,
can best be achieved with the active support of the providers.
Co-regulation and self-regulation instruments should therefore
be used, in line with the different legal traditions, for the
transposition of the Directive in the Member States. Broad acceptance
of the regulatory procedure by stakeholders within the meaning
of this Directive relates to the Member State, not to the Community.
New Recital 25a
"In the area of on-demand audiovisual
media services, self- and co-regulation can be an effective alternative
to regulation for the purposes of delivering public policy objectives
such as the protection of minors or the fight against incitement
to hatred. Accordingly when implementing this Directive, Member
States are encouraged to take the utmost account of the possibility
of implementation by means of self- or co-regulatory mechanisms.
In particular, Member States should avoid unnecessarily disrupting
existing self- and co-regulatory schemes where these already provide
a high level of consumer protection with regard to the matters
addressed in this Directive, and should ensure that implementing
measures provide a coherent system of protection alongside self-regulatory
schemes already established in accordance with the requirements
of Directive 2000/31/EC. "
Amended Recital 33
"None of the provisions of this Directive
[ ... ] necessarily requires that the measures in question be
implemented through prior control of audiovisual media services.
Member States are encouraged to put in place self- and/or co-regulatory
systems."
3. MEDIA LITERACY
"Article 3
...
4. Member States shall, by appropriate
means, advance the development of media literacy amongst consumers."
New Recital
"Media literacy refers to the skills,
knowledge and understanding of consumers to enable them to use
media effectively. Media literate people will be able to exercise
informed choices; understand the nature of content and services;
be able to take advantage of the full range of opportunities offered
by new communications technologies and be better able to protect
themselves and their families from harmful or offensive materials.
It is therefore of crucial importance that
Member States and national regulatory authorities actively advance
the development of media literacy in all sections of society and
that they conduct regular research to monitor these and to inform
their approaches to content regulation. "
4. INCITEMENT
TO HATRED
"Article 3(e)
Member States shall ensure by appropriate
means that television broadcasts provided by broadcasters under
their jurisdiction do not contain any incitement to hatred based
on sex, racial or ethnic origin, religion or belief, age or sexual
orientation.
Member States shall ensure by appropriate
means that on-demand services provided by audio-visual media service
providers under their jurisdiction do not contain any incitement
to hatred based on racial or ethnic origin. "
5. ARTICLE 11
AND THE
"35-MINUTE RULE"
Article 11
1. Member States shall ensure, where
advertising or teleshopping is inserted during programmes, that
the integrity of the programmes and the rights of the right holders
are not prejudiced.
2. No advertising or teleshopping may
be inserted during religious services.
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