Comparative MEDIA LAW SESSION 7 Dirk VOORHOOF Ghent University

EU MEDIA POLICY The EU Television Directive Introduction Analysis Perspectives Introduction Analysis Perspectives

EU & Media Treaty European Community Art 2. Common market, economic and monetary union in order to promote sustainable development of economic activities (..) the raising of the standard of living quality of life Art 3. Activities of the Community - abolition of obstacles to the free movement of goods, persons, services and capital (..) - ensuring that competition in the internal market is not distorted - the approximation of laws > functioning of common market - strenghtening competitiveness of Community industry - contribution to the flowering of cultures of the Member States - strenghtening consumer protection

EU & Media Treaty European Community Art 4. > Open market economy with free competition Art 5. > Principle of subsidiarity Art. 7. Tasks of Community carried out by - European Parliament - Council (of Ministers) - Commission - Court of Justice

EU & Media Treaty European Community Art. 23 (..) Free movement of goods (art. 30: exceptions…) (art. 30: exceptions…)

EU & Media Treaty European Community Art 49. No restrictions to provide services within the Community = basic principle Art 50. Services = normally provided for remuneration i.a. activities with commercial character Art. 52. In order to achieve liberalisation of a specific service, the Council shall, on proposal from the Commission and after consulting (..) the European Parliament, issue directives

EU & Media Treaty European Community Art : Rules on fair competition within the Community - no abuse of dominant position - no aids granted by state distorting or threatening competition by favouring certain undertakings/goods.. Affects trade - art exceptions - general economic interest (..) art. 86,2 - aid to promote culture (..) art. 87, 3, d + control Commission

EU & Media Treaty European Community Art Culture - The Community shall contribute to the flowering of the cultures of the member states while respecting their national and regional diversity and at the same time bringing the common cultural heritage to force - Encouring cooperation - Taking cultural aspects into account in particular in order to respect and promote the diversity of cultures

EU & Media Treaty European Community Protocol of Amsterdam (nr. 32) On the system of public broadcasting in the member states (1997) - Public broadcasting - State aid/funding - Application of EU-rules on competition + Communication EC 5/11/ mission “public service” - different ways of financing PBS - transparant and proportional

EU & Media Treaty establishing a Constitution for Europe, 2004 (draft!) Article I-2 The Union's values The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

EU & Media Article I-3 The Union's objectives 1. The Union's aim is to promote peace, its values and the well-being of its peoples. 2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, and an internal market where competition is free and undistorted.

EU & Media Article I-3 The Union's objectives 3. The Union shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance (..)

EU & Media Article I-3 The Union's objectives 3. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.

EU & Media Article I-3 The Union's objectives 4. In its relations with the wider world, the Union shall uphold and promote its values and interests. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter. 5. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Constitution.

EU & Media Part II Charter of Fundamental Rights of the Union Article II-71 Freedom of expression and information 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 2. The freedom and pluralism of the media shall be respected.

EU and audiovisual media The audiovisual sector directly employs over one million people in the European Union. In addition to its economic importance, it also plays a key social and cultural role: television is the most important source of information and entertainment in European Societies, with 98% of homes having a television, and the average European watching more than 200 minutes television per day.

EU and audiovisual media Four types of action are used to implement audiovisual and media policies: Four types of action are used to implement audiovisual and media policies: 1. The Regulatory Framework: - the Television without Frontiers Directive - Recommendations for the Protection of minors in an online-environment and European film heritage 2. Support mechanisms (MEDIA programme) at a European level to complement the systems existing at national level 3. Other actions are promoted with regard to the distribution of audiovisual content on electronic networks (Content Online and Media Literacy) and Media Pluralism; 4. External Measures, in particular the defence of European cultural interests in the context of the World Trade Organization (WTO) The Commission also participates in the European Audiovisual Observatory (IRIS)

COE and media - Art. 10 ECHR, see - ECTTV (European Convention on Transfrontier Television) - Declaration COM 31 January 2007 on protecting the role of the media in democracy in the context of media concentration - Declaration COM april 1982 on the freedom of expression and information - Rec., Resolutions and Declarations on media and court reporting, media and terrorism, media and hate speech and violence, media and the promotion of a culture of tolerance, political debate in the media, right of reply, protection of journalistic sources, internet + Internet Governance Forum

COE and media Also: -Rec. (94) 13 on measures to promote media transparancy -Rec. (99) 1 on measures to promote media pluralism -Rec. (96) 10 on the guarantee of the independence of public service broadcasting -Rec. (2000)23 on the independence and functions of regulatory authorities for the broadcasting sector -Rec. (2006) on the guarantee of the independence of public service broadcasting -Rec. (2007) on the remit of public service media in the information society

EU TV-Directive 1989/1997 AIMS 1. Guarantee freedom to provide services > TV broadcasting as service + reference to Art. 10 Eur. Convention TV broadcasting as service + reference to Art. 10 Eur. Convention < free movement of information 2. Harmonize broadcasting legislation, esp. regulation of advertising, sponsoring, teleshopping 3. Promote EU-television production/AV-culture 4. Protection of minors 5. Right of reply 6. Access of public events of major importance + 7. Monitoring of EU-broadcasting regulation

TV-Directive 1989/1997 Definitions ! - Television broadcasting Initial transmission (..) in un encoded or encoded form of TV programmes intended for reception by the public NOT : -communication services on individual demand

TV-Directive 1989/ Guarantee freedom to provide services > transborder TV art. 2 - control by originating state: “home control” ° transborder TV art. 2 - control by originating state: “home control” ° < under its jurisdiction ° criteria (“establishment”) - head office & editorial decisions - (..) significant part of workforce - (..) “no gaps, no overlaps”

TV-Directive 1989/ Guarantee freedom to provide services > transborder TV art. 2a- free transmission/reception in other EU-member states > ensure freedom of reception > no restriction of retransmission > no second control * only one exception > art a!! > conditions! > procedure!

TV-Directive 1989/ Harmonisation of advertising rules But also art. 3 (and 20) “ member states shall remain free to require television broadcasters under their jurisdiction to comply with more detailed or stricter rules in the area covered by this Directive” -> “minimum rules” - (ex. DK, Sweden and Belgium)

TV-Directive 1989/ Harmonisation (art ) - Advertising - identification as advertising and to be kept separate (art. 10) - restricted interruptions of programmes (art. 11) (..) - restrictions on content (art. 12) (..) - prohibition of advertising for tobacco products (art.13) - restrictions on alcohol (art. 15) - medicinal products and treatments only when on prescription (art. 14) - restrictions minors (art. 15) (..) - max. time day/hour – 20/15/20 % (art. 18)

TV-Directive 1989/1997 (..) Advertising - restricted interruptions of programmes (art.11) (..) (..) Advertising - restricted interruptions of programmes (art.11) (..) ° inserted between programmes = principle ° during programmes * > integrity of programme and rights are not prejudiced * autonomous parts/sports -> intervals * AV-works (films): blocks 45 min+ 2x45 = 20min. * other programmes: 20 minutes elapse of time between each successive advertising break * NO INTERRUPTIONS ! - religious services - news and current affairs, documentaries, religious programmes and childrens programmes !! with sheduled duration of less than 30 minutes

TV-Directive 1989/1997 (..) Advertising Restrictions content (art. 12) : SHALL NOT - prejudice respect for human dignity - include discrimination on grounds of race, sex or nationality - be offensive to religious or political beliefs - health or safety - protection of environment

TV-Directive 1989/1997 (..) Advertising Restrictions minors (art. 16) - not cause detriment to minors - respect following criteria SHALL NOT - a. exploiting inexperience/credulity - b. not directly encourage to persuade parents or others - c. exploit special trust in parents, teachers or others - d. unreasonably show minors in dangerous situations

TV-Directive 1989/ Harmonisation (art ) - Advertising (.. ) - Sponsoring (art. 17) - identification of sponsor - no influence by sponsor ° content/sheduling - no promotional references to services/products of sponsor (or third party) in the programme - no sponsoring of news and current affair programmes - Teleshopping

TV-Directive 1989/ Promotion of EU-AV culture (art. 4-6) % of transmission time (°) “European works” - 10 % time/budget to European works created by producers who are independent of broadcasters

TV-Directive 1989/ Promotion of EU-AV culture (art. 4-6) - What are “European works” Art. 6 Works originating from member states > Essential criteria * made by producer established in EU or member state COE-TV-Convention * or supervised/controlled by (..) * contribution or co-produced by (..) > preponderant > not controlled by producer outside EU * + other criteria

TV-Directive 1989/ Protection of minors (art. 22) - Absolute ban seriously damaging moral, physical, mental development of minors, esp. ! pornography ! gratuitous violence - Relative ban damaging (..) unless guarantees minors have no access - time - technically encoded - Relative ban damaging (..) unless guarantees minors have no access - time - technically encoded ! Warning message (visual or auditive) ! Warning message (visual or auditive)

TV-Directive 1989/ art. 22a - member states shall ensure that broadcasts do not contain any incitement to hatred on grounds of race, sex, religion or nationality

TV-Directive 1989/ Right of reply (art. 23) - member states have to guarantee right of reply - persons whose legitimate interest - esp. reputation/good name - is damaged - < incorrect facts * unless - would broadcaster render liable to civil/criminal proceedings - or would transgress standards of public decency See also Rec (2004)16 on the right of reply in the new media environment, COE: minimum principles (scope, promptness, free of charge, exceptions, effective, electronic archives, settlement of disputes…) electronic archives, settlement of disputes…)

TV-Directive 1989/ Events of major importance for society (art. 3a, 1 and 2) > each member state MAY take measures to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events of major importance in society in such a way as to depriving a substantial proportion of the public the possibility to follow such events via live coverage or deferred coverage on free television > each member makes list (national/non, major importance) + whole/partial – live/deferred each member makes list (national/non, major importance) + whole/partial – live/deferred < European Commission < EU law

TV-Directive 1989/ Events of major importance for society (art. 3a, 3) > member states SHALL ensure that broadcasters under their jurisdiction do not exercise the exclusive rights in such a way that a substantial proportion of the public in ANOTHER MEMBER STATE is deprived of the possibility of following events which are on the list of that other member state, via whole/partial live coverage or deferred coverage on free television Cycling, footbal, tennis, cultural events… Ex: Roland Garros Fr., not only on pay TV in B.

TV-Directive 1989/ Monitoring > Contact Commitee – art. 23a -> facilitate effective implementation -> forum for exchange of views -> opinions on application -> exchange of information -> examine developments in AV-sector

TV-Directive 1989/1997  Implementation by member states - art. 25 > European Commission -> Court of Justice -> Review? - “broadcasting” non-lineair (> VOD, AVMS) - new advertising formats (split screen, virtual, product placement, telepromotion) -> EU Commission Interpretative Communication of 23 April 2004

From Television Directive toward Audiovisual Media Services Directive  Proposal EC 13 December Common position 24 May 2007  New technologies, new business models  Ensure competition, employment, economic growth, legal certainty  New  Co-regulation, involve stakeholders  Right to use short extracts for news  Regulation (light) for non-lineair services - Protection of minors – no incitement to hatred - Commercial communications  Transparancy on editorial responsibility  Modifications  Product placement (conditions)  Deregulation advertising restrictions interruptions - 35 minutes, isolated spots in sports programmes

From Television Directive toward Audiovisual Media Services Directive Council of Ministers November 2006 First reading E.P. 13 December 2006 The Commission's position on the scope were confirmed i.e. including non-linear (on-demand) audiovisual media services with basic obligations. Country of origin principle strenghtened and the (re-) introduction of the notions of abuse and fraudulent conduct Concerning short reporting the adopted text follows the same direction as the general approach. With regard to advertising the Parliament adopted: –a 20% quantitative restriction rule –no additional bans on alcohol etc. –"fatty foods" issue to be addressed through codes of conduct –for advertising breaks in films etc. a 30 minutes rule with a reference to the "scheduled duration" of programmes. A new article (23c) was adopted in which Member States shall adopt the measures needed to ensure pluralism of information in television broadcasting

From Television Directive toward Audiovisual Media Services Directive Amended version of draft European Commission, 9 March 2007 Political agreement on common position, 24 May 2007 Proposal /Common Position 28 September 2007

Broadcasting and advertising restrictions in EU Murphy v. Ireland, 10 July 2003  Refusal by RADIO station of religious advertisement  Confirmed by IRTC > Broadcasting Act “no advertisement shall be broadcasted that is directed towards any religious or political end (..)”  Interference freedom of expression?  Reference to art. 12 TV-Directive  No advertising that is offensive to religious or political beliefs

Broadcasting and advertising restrictions in EU Murphy v. Ireland, 10 July 2003 ECourt HR  Interference by public authority!  Article 10 EConvention (+ art. 9)  Prescribed by law  Legitimate aim: > rights and freedoms of others  “Necessary in democratic society?”

Broadcasting and advertising restrictions in EU Murphy v. Ireland, 10 July 2003  “Necessary”?  Wide margin of appreciation in sphere of morals or, esp. religion: no uniform European conception of the requirement of “the protection of the rights of others” in relation to attacks on their religious conviction  Particular religious sensitivities in Irish society, religion has been divisive issue in N.-Ireland  Powerfull impact of audiovisual media (..)

Broadcasting and advertising restrictions in EU Murphy v. Ireland, 10 July 2003  “Necessary”?  Freedom to advertise would benefit a dominant religion more than those religions with less adherents and resources  Prohibition concerned only advertising on radio & TV (not disproportionate)  Differences in EU-member states, see also TV-Directive (prohibition/offensive/no specific restrictions)