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PURPOSE: to amend the
“Television Without Frontiers” Directive in order to establish a modernised
and flexible framework for television broadcasts, including other linear
(scheduled) audiovisual media services, and to introduce a set of minimum
rules for non-linear (on-demand) audiovisual media services. LEGISLATIVE ACT: Directive
2007/65/EC of the European Parliament and of the Council amending Council
Directive 89/552/EEC on the coordination of certain provisions laid down by
law, regulation or administrative action in Member States concerning the
pursuit of television broadcasting activities. CONTENT: the aim of the
Directive is to deepen the internal market for non-linear/on-demand
audiovisual services (minimum harmonisation with regard to protection of
minors, hate speech, commercial communication) on the basis of the
country-of-establishment principle, and to modernize the rules, especially
advertising rules, for linear/broadcast services. Scope:"audiovisual
media services" is defined as a service which is under the editorial
responsibility of a media service provider and the principal purpose of which
is the provision of programmes in order to inform, entertain or educate, by
electronic communications networks. Such an audiovisual media service is
either a television broadcast (i.e. a linear audiovisual media service) or an
on-demand audiovisual media service (i.e. a non-linear audiovisual media
service). The term also comprehends audiovisual commercial communication. The
enlarged scope of the Directive responds to the increasing importance of
on-demand audiovisual media services. Jurisdiction:
jurisdiction will continue to be determined on the basis of the establishment
of the service provider, but there is now a mechanism for dealing with cases
where a television broadcast is directed wholly or mostly towards a Member State other than the one where the broadcaster is established. The first phase is
a non-binding" cooperation" phase, where mutually acceptable
solutions are sought between the Member States involved, followed by a second"circumvention" phase where in certain well-defined cases binding
measures can be taken. This second phase, to which a Community procedure is
attached, effectively seeks to codify in secondary legislation existing case
law of the Court of Justice. With regard to on-demand services, the
conditions and procedures for derogation (for a number of public policy
reasons, including the need to protect minors) are exactly those of the
eCommerce Directive 2000/31/EC. Cooperation and circumvention procedure: the Directive
provides for a consultation procedure between Member State of jurisdiction
and the one towards which television broadcast is wholly or mostly directed,
which may lead to a non-binding request to a broadcaster to comply with a
rule of general interest of the latter Member State, and subsequently a
procedure on the basis of Court of Justice case law (specifically on
circumvention) to allow Member States, under the ex-ante control of the
Commission, to take binding measures against service providers that
circumvent national rules. Co- and self- regulation:
Member States must encourage co- and/or self-regulatory regimes to the extent
permitted by their legal systems. Transparency
obligations: Member States must ensure that audiovisual media service
providers under their jurisdiction shall make accessible to the recipients of
a service certain prescribed details. Short reporting: those
exercising exclusive television broadcasting rights to an event of high
interest to the public must grant other broadcasters the right to use short
extracts for the purposes of general news programmes on fair, reasonable and
non-discriminatory terms taking due account of exclusive rights. Such short
extracts may be used for EU-wide broadcasts by any channel including
dedicated sports channels and should not exceed 90 seconds. The right of
access to short extracts will apply on a trans-frontier basis only where it
is necessary. Therefore a broadcaster should first seek access from a
broadcaster established in the same Member State having exclusive rights to
the event of high interest to the public. The country of origin principle
will apply to both the access to, and the transmission of, the short
extracts. In a trans-frontier case, this means that the different laws should
be applied sequentially. Firstly, for access to the short extracts the law of
the Member State where the broadcaster supplying the initial signal (i.e.
giving access) is established should apply. This is usually the Member State in which the event concerned takes place. Where a Member State has established an equivalent system of access to the event concerned, the law of that Member State will apply in any case. Secondly, for transmission of the short extracts,
the law of the Member State where the broadcaster transmitting the short
extracts is established will apply. European
works in on-demand audiovisual media services: Member States must ensure
that not only television broadcasters but also on-demand audiovisual media
services promote European works. 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 catalogue of programmes offered by the on-demand audiovisual
media service. Product
placement: the Directive establishes the principle that product placement
be prohibited for all programmes. However, exemptions to this principle are
provided for certain types of programme (films, series, sports and light
entertainment) subject to certain conditions. These exemptions will apply
automatically unless a Member State opts out of them. The requirement to
identify product placement at the moment that a programme resumes after an
advertising break has also been added, and the specific case of 'thematic
placement' has been addressed in a recital. Advertising:
the Directive provides that a core of 'qualitative' rules on audiovisual
commercial communication are applied to all audiovisual media services,
whilst the 'quantitative' rules, which apply only to television broadcasting,
have been simplified and streamlined, with a view to creating a regulatory
environment in which the 'free-to-air' broadcasting model can continue to
compete with subscription-based television channels. The Directive ensures
additional protection for children. It requires Member States and the
Commission to encourage the development of codes of conduct regarding
advertising of 'junk food' aimed at children, whilst the quantitative rules
on interruption of programmes are stricter for children's programmes. Protection
of minors in on-demand audiovisual media services: Member States must
take appropriate measures to ensure that on-demand audiovisual media services
provided by media service providers under their jurisdiction which might
seriously impair the physical, mental or moral development of minors are only
made available in such a way that ensures that minors will not normally hear
or see such on-demand audiovisual media services. Access of
people with a visual or hearing disability: media service providers must
be encouraged by Member States to ensure that their services are gradually
made accessible to people with a visual or hearing disability. Independent
Regulators: Member States must take appropriate measures to provide each
other and the Commission with the information necessary for the application
of the provisions of the Directive, notably through their competent
independent regulatory bodies. Media literacy: a
recital underlines the vital role of media literacy and also recalls the
Recommendation of 20 December 2006 which contains significant content
relating to media literacy. The Commission is now required, as part of its
reporting obligations and when deciding on future proposals for adaptations
of the Directive, to pay particular attention to media literacy levels in
Member States. Right of reply: the
obligations in Directive 89/552/EEC relating to television broadcasting
remain untouched. A recital explains that the right of reply could also be
applied as a legal remedy in the online environment and recalls the
Recommendation on the protection of minors and human dignity and on the right
to reply. Report: not later than
19 December 2011, and every three years thereafter, the Commission must submit
a report on the application of the Directive and, if necessary, make further
proposals to adapt it to developments in the field of audiovisual media services,
in particular in the light of recent technological developments, the
competitiveness of the sector and levels of media literacy in all Member
States. The report must also assess the issue of television advertising
accompanying or included in children's programmes, and in particular whether
the quantitative and qualitative rules contained in the Directive have
afforded the level of protection required. TRANSPOSITION: 19 December 2009. ENTRY INTO FORCE: 19 December
2007.
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