Jurisdiction & Circumvention Chris Quinlan October 2000

Topics Freedom of movement: Country of origin Exceptions from Country of Origin principle Which country has jurisdiction?

Freedom of movement: Country of origin/jurisdiction ‘Television Without Frontiers’ Directive ’89/’97, Article 2 To create certainty in regulation and enforcement Transfrontier channels regulated by rules applying in their country of origin Receiving countries forbidden from blocking retransmission

‘Exceptions’ to country of origin principle Currently around 6 ‘exceptions’ Majority are case law based COE Art 3a SVT TV 10 De Agostini Art. 2a(2)

‘Exceptions’: Article 2a(2) Provisional suspension, pending Commission decision Channel carries programmes posing serious threat to children (e.g. porn, gratuitous violence), or incite hatred re race, sex, religion 3 separate infringements in 12 months, written warning, plus ‘arbitration’ period

‘Exceptions’: TV10 case Channel wholly or principally directed at one receiving Member State Channel established in another Member State to avoid rules in receiving Member State BUT: Burden of proof on receiving country to establish avoidance

‘Exceptions’: De Agostini case Draws distinction between a channel and the advertising it carries Permits action by receiving Member State against an advertiser using a transnational channel, where the advertising is judged misleading under receiving country’s laws Case draws heavily on Misleading Advertising Directive 1984 Opens a doctrine of indirect restriction on retransmission

‘Exceptions’: SVT (seal hunters) case? Defamation case Only transfrontier element is ‘overspill’ Will it follow De Agostini principle? Art 23, TVWF: Right of Reply?

‘Exceptions’: Article 3a (listed events) Art 3a is a derogation from the country of origin principle TVWF Contact Committee has extended this derogation UK/Denmark – first test case

‘Exceptions’: Non-EU/EEA reception country Art. 2, TVWF does not apply to receiving country Council of Europe Convention may apply Article 16 may give right to block advertising on certain channels

Conclusion: Country of origin principle has been weakened BUT country of origin provides certainty of regulation and enforcement Growth of digital & on-line technologies, broadband, ADSL etc. make need for country of origin control greater First Key is greater liaison between countries (EPRA) to direct problems to country of origin Second Key is certainty in identifying the country of origin/jurisdiction

Identifying country of jurisdiction ’89 Directive: Ill-defined ground-rules Case law clarified: VT4, TNT/Cartoon & UK v Commission cases…“where decisions covering programme policy are taken and the programmes to be broadcast are finally put together” BUT ’97 Directive didn’t precisely codify the case law…

Identifying country of jurisdiction Channel established in MS of its Head Office, IF ‘significant’ part of broadcasting workforce operates from there If not, in MS where programme scheduling decisions taken, IF ‘significant’ part of broadcasting WF operates there Otherwise, in MS where it first broadcast, IF it [pays taxes] there If HQ, or place where scheduling decisions taken, located in non-MS, Channel established in whichever country is a MS

Identifying country of jurisdiction If none of above, attention turns to the broadcaster’s signal:- Satellite frequency granted by country of origin Satellite earth station situated in country of origin Satellite up-link situated in country of origin

Countries applying for EU membership Concerns probably similar to existing EU nations:- Programme content/protection of minors Carriage of advertising/ sponsorship Domestic foreign ownership restrictions on broadcasters BUT the EU is first & foremost an internal market ‘without frontiers’

Countries applying for EU membership The way forward:- Better communication between countries (EPRA) Clarity in determining country having jurisdiction Where necessary, negotiate transitional periods