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									The revision of theTelevision
 without frontiers directive :
      Broad overview
                Etienne Wery

    Partner at Ulys Law Firm (Brussels-Paris)

I.     Introduction : modernisation of
       the directive

II.    Calendar

III.   Content of the updated directive (in view of
       the 1st reading of the E.P and the
       amended proposal of the Commission)

IV. Conclusion
I. Introduction : modernisation of
the TVSF directive

   Dubble aims

    - Modernisation taking into account the
    technological progress including the
    digital « convergence »

    - Will to « beter regulate »
• Core issues

  - Extension of the scope of the TVWF Directive
  to the non linear services
  - Simplifications of the advertising rules (+ new
  forms of directive are taken into account)
  - Improvement of the country of origin principle
  - Promotion of the independent and european
  - Extension of the means of access to the
  « short extracts
II. Calendar
 13 December 2005 :   Proposal of the Commission
 13 November 2006 :   General approach of the
 13 december 2006 :   Parliament : adoption of the
                      1st reading of the Hieronymi
 12 february 2007 :   Informal council prepared the
                      ground for adoption of a
                      common position on the
                      directive on 24 May 2007
 29 March 2007 :      Commission : adoption of an
                      amended proposal
II. Content of the updated

  A. Extension of the scope of the directive
     to all the audiovisual services (both
     linear and non-linear)

  B. New advertising rules

  C. Promotion of the cultural diversity in the
     audiovisual media
A. Extension of the scope of the
tvsf directive
   1. Introduction

      Broad consensus about the extension of the
      scope of the directive to ALL audiovisual
      media services

        Amended proposal (recital 5) :
        « It is necessary (…) to apply to all
        audiovisual media services, both linear
        and non linear, a basic tier of
        coordinated rules »
2. Scope of the audiovisual media
services directive

   a. What covers the notion of « audiovisual
     Media Services » ?

   a.1. Covers the use of mass media to inform,
     entertain and educate

   •    Excludes any form of private correspondence
                examples : e-mails

   •    Excludes services that contain some audiovisual
        content if this content is ancillary to, and is not the
        principal purpose of the service
                examples : travel agency showing a clip of a holiday
                resort on its website
a.2. Covers TV-like services

     Excludes : electronic versions of
     newspapers or magazines, web sites
     without audiovisual media content,
     mere audio transmissions or radio

a.3. Covers linear and non linear services
b. Distinction between linear and non
linear services
   • Non linear services (= on demand services) :
     « any audiovisual media service where the user decides
     upon the moment in time when a specific programme is
     transmitted on the basis of a choice of content selected
     by the media service provider »

   • Criteria : the choice and the control that the user can

   • The distinction depends on who decides when a specific
     programme is transmitted and whether schedules exist
                                                     Electronic communications

                                                                                             Exclusion of the scope
             Scope of the new audiovisual media services directive

                                                                                      Other services of electronic
                    Audiovisual media services                                             communications

Linear services: televisual                       Non linear services :     correspondence
      broadcasting                                On demand services

                                                                                                           Services that contain
                                                                            Electronic versions of
Classical                                      Video on                                                 audiovisaul content if this
                      Pay per view                                   SVOD      newspapers or
television                                     demand                             magazines
                                                                                                        content is not the principal
                                                                                                          purpose of the service
3. Basic tier of rules for linear and non
linear services

    a. Concerns :

       - extension of the « country of origin » principle
       - protection of minors
       - prohibition of incitement to hatred
       - identification of the media service provider
       - identification of commercial communication
       - prohibition of surreptitious advertising
       - clear rules on product placement and
       - qualitative restrictions on advertising
b. For other issues : application of the
  eCommerce Directive to non linear

• Distinction between :
                    - audiovisual media services
                    - information society services

• Definition of information society services :
  any service normally provided for remuneration, at a
  distance, by means of electronic equipment for the
  processing (including digital compression) and storage of
  data, and at the individual request of a recipient of a

  So : exclusion of the televisual broadcasting services
  (Mediakable Case law)
c. Content of the minimum common

   c.1. Extension of the « country of origin »

   • This principle states that, where an action or service is
     performed in one country but received in another, the
     applicable law is the law of the country where the
     action or service is performed

   • In the TVSF directive : the country of origin principle is
     only applicable to the linear services

   • The AVMS directive extents the principle to ALL the
     services, both linear and non linear
c.2. Minors protection
  Appropriate measures to ensure that the
  audiovisual media services are not made
  available in such a way that might seriously
  impair the physical, mental or moral development
  of minors

c.3. Prohibition of incitement to hatred
  Appropriate measures to ensure that AMS and
  audiovisual commercial communications do not
  contain any incitement to hatred based on sex,
  racial or ethnic origin, religion or belief, disability,
  age or sexual orientation
d. Adjustement of the rules applicable to
the linear services

   d.1. Reinforcement of the rules to fight against
     abusive relocations

   • Principle :
     A member state may in order to prevent abuse
     or fraudulent conduct, adopt appropriate
     measures against a media service provider
     established in another member state that directs
     all or most of its activity to the territory of the
     first member state
• Conditions

- The receiving member state asks the member
  state in which the media service provider is
  established to take measures
- The latter member state does not take such
- The first member state notifies the Commission
  and the member state in which the media
  service provider is established of its intention to
  take such measures
- The Commission decides that the measures are
  compatible with Community law
d.2. Precision of the rules on the determination
of the Member state competent for the extra
community channels

      A media service provider shall be deemed to be
      under the jurisdiction of a Member State in the
      following cases:

        - they use a satellite up-link situated in that
      Member State

          - although they do not use a satellite up link
          situated in a Member state, they use a
          satellite capacity appartaining to that Member
B. New advertising rules

 1. Introduction

 •   Simplification and liberalization of the rules on
     inserting advertising in TV programmes and on
     new advertising techniques

 •   Aim ?   Stimulate competition
             Widen consumer choice
             Promote economic growth
2. Qualitative Rules in force
     Framework of advertising’s broadcasting :
          - Television advertising has to be readily
          recognizable as such
          - Isolated advertising “exceptionally” authorized
          - Banning of subliminal techniques.
          - Banning of surreptitious advertising

     Banning of advertising for :
           - tobacco
           - medicinal products and medical treatment

     Advertising on alcohol authorized in specific conditions

     Rules concerning the protection of children under 18
Minors protection : specific rules in force

• Advertising must not cause moral or physical
  detriment to minors;
• Advertising may not directly exhort minors to buy a
  product or service by exploiting their inexperience
  or credulty;
• Advertising may not directly encourage minors to
  persuade their parents or others to purchase the
  goods or services being advertised;
• Advertising may not exploit the special trust minors
  place in parents, teachers or other persons;
• Advertising may not unreasonably show minors in
  dangerous situations
3. Qualitative rules : latest discussions

•   Broad consensus : no additional bans on alcohol,
    food, etc…

•   BUT suggestion by the Parliament (Amendments 114
    and 225) accepted in the amended proposal :

    adoption of a « code of conduct » by the service
    providers regarding children’s programming
    containing or being interrupted by advertising,
    sponsorship or any marketing of unhealthy and
    inappropriate foods and drinks such as those high in
    fat, sugar and salt of alcoholic beverages
4.      Quantitative rules : latest
     a. Insertions of advertising and interruptions
        of programmes

     a.1. Daily limitation of advertising :
                 advertising + teleshopping : 20%
                 advertising alone : 15%

         measure supressed in the amended proposal

     a.2.Limitation per hour of advertising
                 advertising + teleshopping : 20%

         measure kept as itself in the amended proposal
a.3. General rules on advertising interruptions

  - Advertising may be inserted during programmes
  in such a way that the integrity and value of the
  programme and the right of the rights holders are
  not prejudiced

  - Modified in the amended proposal :
  Member states shall ensure that the intergity of
  the programmes and the rights of the right
  holders are not prejudiced
General rules on advertising interruptions

• In programmes consisting of autonomous parts, or
  in sports programmes and similarly structured events
  and performances comprising intervals, advertisements
  shall only be inserted between the parts or in intervals

  suppressed in the amended proposal

• At least 20 minutes between 2 interruptions

  suppressed in the amended proposal
a.4. Specific rules on advertising interruptions

- Rules in force :

  rules for films and features films :
  Once interruption each 45 minutes during the first 90 minutes
  A 3d interruption is allowed if the programme lasts more than
  110 minutes

  rules for children’s programmes, news and current affairs
  programmes, documentaries
  No interruption if the programme lasts 30 minutes
  At least 20 minutes between 2 interruptions if the programme
  lasts more than 30 minutes
- Modifications proposed

  No more distinctions between the different
  programmes : common rules for all programmes

  Proposal of the Commission : interruptions allowed
  once for each 35 minutes

  Amended proposal : Once for each scheduled period
  of at least 30 minutes
b. Product placements

• Definition :
  any form of audiovisual commercial communication
  consisting in the inclusion of or reference to a product, a
  service or a trade mark thereof so that it is featured
  within audiovisual media services, normally in return for
  payment or for similar consideration

• Proposal of the Commission :
  banning of product placement and sponsoring for news,
  current affairs programmes, children’s programmes,
  documentaries and programmes of advice;

  reinforcement of the rules on public’s information and on
  identification of the programme
• Parliament amendment 227 (accepted
but reworded in the amended proposal :

     - new article for product placements
     (different from sponsoring)
     - admissibility of the product placements
     in cinematographic works, films and
     series made for television and sports
     - insertion of an obligation to inform the
     viewer every 20 minutes during the
C. Promotion of the cultural
diversity in the audiovisual media
 1. Linear services

 a. Rules in force (not changed in the proposal)

 Member states shall ensure that :

       - broadcasters reserve for European works a
     majority proportion of their transmission time
     (article 4 TVSF directive)

        - broadcasters reserve at least 10% of their
     transmission time and at least 10% of their
     programming budget for European works created by
     producers who are independent of broadcasters
     (article 5 of the TVSF directive)
2. Non linear services

   • Proposal of the Commission :
     « Member states shall ensure that media service
     providers (…) promote, where practicable and
     appropriate means, production of and access to
     European works (…)» (article 3 f of the AVMS

   • So the directive does not preview any concrete
     measure for the european production and its
     promotion : article 3 f is exclusively an
Parliament : amendment 108 : addition of
measure concerning the promotion of
European works for non linear services

Amended proposal : rewording of the amendment
108: addition of the following words:

   « Such promotion could relate, inter alia, to
   the financial contribution made by such services
   to the production and rights acquisition of
   European works or to the share and/or
   prominence of European works in the catalogues
   of programmes proposed by the directive »
IV. Conclusion

    &             c
         Etienne Wery

    Partner at Ulys law firm

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