(1) Directive 89/552/EEC coordinates certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of broadcasting activities. However, new technologies in the transmission of audiovisual media services call for adaptation of the regulatory framework to take account of the impact of structural change and technological developments on business models, especially the financing of commercial broadcasting, and to ensure optimal conditions of competitiveness for Europe’s information technologies and its media industries and services.

(1) Directive 89/552/EEC coordinates certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of broadcasting activities. However, new technologies in the transmission of audiovisual media services call for adaptation of the regulatory framework to take account of the impact of structural change, the spread of information and communication technologies (ICT) and technological developments on business models, especially the financing of commercial broadcasting, and to ensure optimal conditions of competitiveness and legal certainty for Europe’s information technologies and its media industries and services, as well as respect for cultural and linguistic diversity. The laws, regulations and administrative measures should be as unobtrusive and simple as possible to allow new and existing audiovisual media services to develop and flourish, thus allowing for job creation, economic growth, innovation and cultural diversity to be nurtured.

Justification

Insufficient legal certainty in the market for new audiovisual media services makes it harder to exploit their economic potential.

(2) The laws, regulations and administrative measures in Member States concerning the pursuit of television broadcasting activities are already coordinated by Directive 89/552/ECC, whereas the rules applicable to activities such as on-demand audiovisual media services contain disparities, some of which may impede the free movement of these services within the European Union and may distort competition within the common market. In particular, Article 3(4) of Directive 2000/31/EC provides that Member States may derogate from the country of origin principle for specific public policy reasons.

(2) The laws, regulations and administrative measures in Member States concerning the pursuit of television broadcasting activities are already coordinated by Directive 89/552/ECC, whereas the rules applicable to activities such as on-demand media services are only coordinated as regards their distribution by Framework Directive 2002/21/EC and as regards trading by Directive 2000/31/EC on eCommerce; the content of the new audiovisual media services is still governed by the legislation of the Member States. Some of these disparities impede the free movement of these services within the European Union and may distort competition within the common market.

Justification

Legal uncertainty is primarily the result of insufficiently clear demarcation of the law governing the new audiovisual services as against European telecommunications law and the e-Commerce Directive.

(3) The importance of audiovisual media services for societies, democracy and culture justifies the application of specific rules to these services.

(3) Audiovisual media services are as much cultural goods as they are economic goods. Their growing importance for societies, democracy – in particular by ensuring freedom of information, diversity of opinion and media pluralism – education and culture justifies the application of specific rules to these services, and the enforcement of those rules, notably in order to preserve the fundamental rights and freedoms laid down in the Charter of Fundamental Rights of the European Union, the European Convention for Protection of Human Rights and Fundamental Freedoms and the United Nations Covenant on Civil and Political Freedoms, and in order to ensure the protection of minors and vulnerable and disabled people.

Justification

The European audiovisual model is founded on the principle that the media are both cultural and economic goods. It should be reaffirmed that their importance in shaping public opinion and preserving democracy justifies the application and enforcement of rules safeguarding, inter alia, fundamental rights and freedoms and the protection of vulnerable persons as defined at national, European and global level.

(3a) In its resolutions of 1 December 2005 and 4 April 2006 on the Doha Round and on the WTO Ministerial Conferences, the European Parliament calls for basic public services, such as health, education and audiovisual services to be excluded from liberalisation under the GATS negotiations. In its resolution of 27 April 2006, Parliament supports the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which states in particular that ‘cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value’.

Justification

In line with European law, the EU and the Member States have called for the special role of audiovisual goods to be taken into account in the GATS and WTO negotiations and in the drafting of, and decision-making under, the UNESCO Convention.

(3b) Media education should serve to provide citizens with the wherewithal to bring critical interpretation to bear on, and use, the ever-expanding volume of information with which they are assailed, as laid down in Council of Europe Recommendation 1466 (2000). Helped by a learning process of this kind, citizens will be in a position to formulate messages and select the media best suited to impart them and thus become able to exercise their right to freedom of information and expression to the full.

(4) Traditional audiovisual media services and emerging on-demand services offer significant employment opportunities in the Community, particularly in small and medium-sized enterprises, and stimulate economic growth and investment.

(4) Traditional audiovisual media services – such as television – and emerging on-demand audiovisual media services offer significant employment opportunities in the Community, particularly in small and medium-sized enterprises, and stimulate economic growth and investment. Bearing in mind the importance of a level playing- field and a true European broadcasting market, the basic principles of the common market, such as competition law and equal treatment, should be respected in order to ensure transparency and predictability in media markets and to achieve low entry barriers.

Justification

Highlights the importance of the internal market in providing the new audiovisual media services with development opportunities.

(5) Legal uncertainty and a non-level playing field exist for European companies delivering audiovisual media services as regards the legal regime governing emerging on-demand services, it is therefore necessary, both to avoid distortions of competition and to improve legal certainty, to apply at least a basic tier of coordinated rules to all audiovisual media services.

(5) Legal uncertainty and a non-level playing field exist for European companies delivering audiovisual media services as regards the legal regime governing emerging on-demand services, it is therefore necessary, in order to avoid distortions of competition, to improve legal certainty,  to help complete the internal market and to facilitate the emergence of a single information area, to apply to all audiovisual media services, both linear and non-linear, irrespective of whether they are transmitted on the basis of a set programme schedule or on demand, at least a basic tier of coordinated rules aimed at guaranteeing, inter alia, a sufficient level of protection of minors, the vulnerable and the disabled and respect for fundamental rights and freedoms . The basic principles of Directive 89/552/EEC, namely the transmitting state principle and common minimum standards, have proved their worth and should therefore be retained.

Justification

Specified which media services are covered and draws the necessary conclusions from the success of the TV Directive.

(6) The Commission has adopted a Communication on the future of European regulatory audiovisual policy, in which it stresses that regulatory policy in the sector has to safeguard certain public interests, such as cultural diversity, the right to information, the protection of minors and consumer protection, now and in the future.

(6) The Commission has adopted a Communication on the future of European regulatory audiovisual policy, in which it stresses that regulatory policy in the sector has to safeguard certain public interests, such as cultural diversity, the right to information, the need for media pluralism, the protection of minors, consumer protection and action to enhance public awareness and media skills and the principle of universal access for all sectors of the public, including the most disadvantaged, now and in the future.

(6a) The co-existence of private and public broadcasters is of high importance in the audiovisual media market, where public service broadcasters may equally benefit from the advantages of digital economy.

Justification

It is important to emphasize that both private and public broadcasters can take advantage of digital market opportunities.

(6c) The country of origin principle is crucial to the emergence of a pan-European audiovisual market with a strong industry producing European content. Moreover, the principle safeguards the viewer's rights to choose from a wide variety of European programmes.

(7) The Commission has adopted the initiative “i2010: European Information Society” to foster growth and jobs in the information society and media industries. i2010 is a comprehensive strategy designed to encourage the development of the digital economy, against the background of the convergence of information and media services, networks and devices, by modernising and deploying all EU policy instruments: regulatory instruments, research and partnerships with industry. The Commission has committed itself to creating a consistent internal market framework for the information society and media services by modernising the legal framework for audiovisual services, starting with a Commission proposal in 2005 to modernise the Television without Frontiers Directive.

(7) The Commission has adopted the initiative “i2010: European Information Society” to foster growth and jobs in the information society and media industries. i2010 is a comprehensive strategy designed to encourage the production of European content, the development of the digital economy and the uptake of ICT, against the background of the convergence of information and media services, networks and devices, by modernising and deploying all EU policy instruments: regulatory instruments, research and partnerships with industry. The Commission has committed itself to creating a consistent internal market framework for information society services and media services by modernising the legal framework for audiovisual services, starting with a Commission proposal in 2005 to modernise the Television without Frontiers Directive and transform it into a Directive on Audiovisual Media Services. The goal of the i2010 will in principle be achieved by allowing industries to grow with minimal regulation, as well as allowing small start-up businesses, which are the wealth and job creators of the future, to flourish, innovate and create employment in a de-regulated market.

Justification

The objective of the review of the TV Directive should be stated.

(8) On 6 September 2005, the European Parliament adopted a Resolution on the application of Articles 4 and 5 of Directive 89/552/EEC, as amended by Directive 97/36/EC, for the period 2001-2002 (Weber Report). This Resolution calls for the adaptation of the existing Television without Frontiers Directive to structural changes and technological developments while fully respecting its underlying principles, which remain valid. In addition, it in principle supports the general approach of basic rules for all audiovisual media services and additional rules for linear (“broadcasting”) services.

(8) On 6 September 2005, the European Parliament adopted a Resolution on the application of Articles 4 and 5 of Directive 89/552/EEC, as amended by Directive 97/36/EC, for the period 2001-2002 (Weber Report). This Resolution – like the resolutions of 4 September 2003 and 22 April 2004 – calls for the adaptation of the existing Television without Frontiers Directive to structural changes and technological developments while fully respecting its underlying principles, which remain valid. In addition, it in principle supports the general approach of basic rules for all audiovisual media services and additional rules for linear (“broadcasting”) services.

Justification

The European Parliament has been calling for an urgent review of the EU’s TV directive for some time now.

(9) This Directive enhances compliance with fundamental rights and is fully in line with the principles recognised by the Charter of Fundamental Rights of the European Union, in particular Article 11 thereof. In this regard, this Directive does not in any way prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media.

(9) This Directive enhances compliance with fundamental rights and seeks to incorporate the principles, rights and freedoms laid down in the Charter of Fundamental Rights of the European Union, in particular Article 11 thereof. In this context, Member States should set up one or more independent regulatory authorities, if they have not already done so. Such authorities should act as the guarantors of fundamental rights in the provision of audiovisual media services. Member States may decide whether it is appropriate to have a single regulatory authority for all audiovisual media services or several separate authorities for each category of service (linear or non-linear). Furthermore, this Directive does not in any way prevent Member States from applying their constitutional rules or regulatory arrangements relating to freedom of the press and freedom of expression in the media.

(10) Because of the introduction of a minimum set of harmonised obligations in Articles 3c to 3h and in the areas harmonised in this Directive Member States can no longer derogate from the country of origin principle with regard to protection of minors and fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violation of human dignity concerning individual persons or protection of consumers as provided in Article 3(4) of Directive 2000/31/EC of the European Parliament and the Council.

(10) The requirement that the originating Member State should ensure compliance with national law as coordinated by this Directive is sufficient under Community law to ensure free movement of audiovisual media services without secondary control on the same grounds in the receiving Member State; however, the receiving Member State may exceptionally and under specific conditions, derogate from this requirement in the event of serious violations of Articles 22(1), 22(2), 3d or 3e, taking into account the fact that respect for fundamental rights forms an integral part of the general principles of Community law.

Justification

In particularly serious and urgent cases, a special rapid procedure should be available for non-linear services as it already is for TV.

(11) Directive 2002/21/EC of the European Parliament and the Council according to its Article 1(3) is without prejudice to measures taken at Community or national level, to pursue general interest objectives, in particular relating to content regulation and audiovisual policy.

(11) Directive 2002/21/EC of the European Parliament and the Council (the Framework Directive) created a uniform legal framework for all transmission networks and services, but according to its Article 1(3) is without prejudice to measures taken at Community or national level, to pursue general interest objectives, in particular relating to content regulation and audiovisual policy with a view to separating the regulation of transmission from the regulation of content.

Justification

Draws the distinction between this Directive and EU telecommunications legislation.

(11a) Directive 2003/31/EC (the eCommerce Directive) contains no specific substantive provisions governing audiovisual media services and leaves the Member States the option of derogating from the country of origin principle on specific matters of public policy on a case-by-case basis and in accordance with a notification procedure. By imposing additional minimum standards for non-linear audiovisual media services with a view to the protection of minors and the promotion of cultural diversity, this Directive extends the field of harmonised Community law. To that extent this Directive builds on the eCommerce Directive in these areas to cover a specific subset of non-linear audiovisual services which are of particular importance for society and are characterised by their cultural dimension. For these services the degree of coordination of national rules is higher and the internal market is more complete.

Justification

Seeks to distinguish the scope of the directive from that of the eCommerce Directive, which the new directive consciously takes as its basis.

(12) No provision of this Directive should require or encourage Member States to impose new systems of licensing or administrative authorisation on any type of media.

(12) No provision of this Directive should require or encourage Member States to impose new systems of licensing or administrative authorisation on any type of audiovisual media.

Justification

Clarification.

(13) The definition of audiovisual media services covers all audiovisual mass-media services, whether scheduled or on-demand. However, its 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 non-economic activities, such as purely private websites.

(13) The definition of audiovisual media services covers all audiovisual mass-media services the content of which is suitable for television broadcasting irrespective of the delivery platform, whether the editorial approach and responsibility of the provider are reflected in a programme schedule or in a selection catalogue. However, its scope is limited to services as defined by the Treaty and therefore covers any form of economic activity, including that of public service enterprises. The economic element must be significant to justify the application of the Directive. Economic activities are normally provided for remuneration, intended for a certain period and characterised by a certain continuity; the assessment of the economic element is subject to the criteria and rules of the country of origin. Accordingly, the definition of audiovisual media services does not cover non-economic activities which are normally not provided for remuneration, such as weblogs and other user-generated content or any form of private correspondence, such as e-mails and private websites.

Justification

Definition of audiovisual media services on the basis of editorial responsibility and the economic element.

(14) The definition of audiovisual media services covers mass media in their function to inform, entertain and educate, but excludes any form of private correspondence, such as e-mails sent to a limited number of recipients. The definition also excludes all services not intended for the distribution of audiovisual content, i.e. where any audiovisual content is merely incidental to the service and not its principal purpose. Examples include websites that contain audiovisual elements only in an ancillary manner; such as animated graphical elements, small advertising spots or information related to a product or non-audiovisual service.

(14) The definition of audiovisual media services covers mass media exercising editorial responsibility in their function to inform, entertain and educate the general public, includes audiovisual commercial communications but excludes any form of private correspondence, such as e-mails sent to a limited number of recipients. The definition also excludes all services whose principal purpose is not the distribution of audiovisual content, i.e. where any audiovisual content is merely incidental to the service. Examples include websites that contain audiovisual elements only in an ancillary manner; such as animated graphical elements, small advertising spots or information related to a product or non audiovisual service.

Also excluded are games of chance involving a stake representing a sum of money, including lotteries and betting, provided that their main purpose is not that of distributing audiovisual content.

Further examples are online games, as long as the principal purpose of the audiovisual media service is not reached, and search engines where the delivery of audiovisual material is not the principal purpose even if a search sometimes results in an offer of audiovisual material.

Justification

Definition of audiovisual media services by content-based guidelines.

(14a) Television broadcasting services, i.e. linear services, currently include in particular analogue and digital television, live streaming, webcasting and near-video-on-demand, whereas video-on-demand, for example, is one of the on-demand, i.e. non-linear services. For linear audiovisual media services or television programmes which are also offered on a live or deferred basis as non-linear services by the same media service provider, the requirements of this Directive are deemed to be met by the linear transmission. However, where different kinds of services are offered in parallel, without one part being clearly subordinate to another, this Directive should still apply to those distinguishable parts of the service which fulfil all the criteria of an audiovisual media service.

(14b) The definitions in this Directive, in particular the definitions of television broadcasting, linear and non-linear services, are laid down only for the purposes of this Directive and do not affect the underlying rights protected by copyright and neighbouring rights legislation. The scope and regime of these rights are not prejudiced by these definitions and continue to be regulated independently by the relevant legislation.

(15) This Directive does not cover electronic versions of newspapers and magazines.

(15) This Directive does not cover electronic versions of newspapers and magazines. In accordance with Directive 2000/31/EC, games of chance are also excluded from its scope.

Justification

Seeks to clarify that these services, which do not have the transmission of audiovisual services as their principal purpose, are excluded from the scope of the directive.

(16) The term “audiovisual” refers to moving images with or without sound, so includes silent films but does not cover audio transmission or radio.

(16) For the purposes of this Directive, the term “audiovisual” refers to moving images with or without sound, so includes silent films but does not cover audio transmission or radio services.

Justification

In other European and international legal acts, such as point 2.D of the WTO services classification list, the term “audiovisual services” covers radio as well as television. It needs to be ensured that this directive does not affect those definitions and also that radio remains covered by the definition of audiovisual services.

(16a) An audiovisual media service consists of programmes, i.e. a discrete succession of moving images with or without sound which are subject to editorial responsibility and are either transmitted by a media service provider in accordance with a set time schedule or arranged in a catalogue.

Justification

The term “programme” is characteristic of audiovisual media services and therefore requires a separate definition.

(17) The notion of editorial responsibility is essential for defining the role of the media service provider and thereby for the definition of audiovisual media services. This Directive is without prejudice to the liability exemptions established in Directive 2000/31/EC.

(17) The notion of editorial responsibility is essential for defining the role of the media service provider and thereby for the definition of audiovisual media services. “Editorial responsibility” means responsibility for the selection and organisation, on a professional basis, of the content of an audiovisual offer. This may apply to an individual content or a collection of contents. Such editorial responsibility applies to the composition of the schedule, in the case of television programmes, or to the programme listing, in the case of non-linear services. This Directive is without prejudice to the liability exemptions established in Directive 2000/31/EC.

Justification

Clarifies the criterion of editorial responsibility.

(17a) The mere technical delivery, by terrestrial means or by satellite, of an audiovisual media service does not in itself confer the status of a media service provider within the meaning of this Directive; the same principle applies where a selection decision is made, provided that a third party under the jurisdiction of a Member State clearly bears that editorial responsibility.

Justification

It is necessary to prevent the creation of a kind of "loophole", whereby editorial responsibility could easily be exported outside the EU, with the possible effect that the Directive would no longer apply. See also amendment for Article 1 paragraph 2

(17b) The criteria laid down in the definition of audiovisual media services, as set out in Article 1(a) of this Directive and expanded in Recitals 13 to 17 of this Directive, must be fulfilled simultaneously.

Justification

It is important to point out and emphasise that the criteria presented by the Commission in recitals 13 to 17 have to be fulfilled simultaneously

(18) In addition to advertising and teleshopping, the wider definition of audiovisual commercial communication is introduced. It comprises moving images with or without sound which accompany audiovisual media services and are designed to promote, directly or indirectly, the goods, services or image or a natural or legal entity pursuing an economic activity and therefore it does not include public service announcements and charity appeals broadcast free of charge.

(18) In addition to advertising and teleshopping, the wider definition of audiovisual commercial communication is introduced. It comprises images with or without sound which are transmitted as part of an audiovisual media service and form part of or accompany programmes and are designed to promote, directly or indirectly, the goods, services or image or a natural or legal entity pursuing an economic activity and therefore it does not include public service announcements and charity appeals broadcast free of charge.

Justification

This wording more closely reflects the various types of advertising.

(19) The country of origin principle remains the core of this Directive, as it is essential for the creation of an internal market. This principle must therefore be applied to all audiovisual media services in order to ensure legal certainty for media service providers as the necessary basis for new business models and the deployment of these services. It is also essential in order to ensure the free flow of information and audiovisual programmes in the internal market.

(19) The country of origin principle remains the core of this Directive, as it is essential for the creation of an internal market. This principle must therefore be applied to all audiovisual media services in order to ensure legal certainty for media service providers as the necessary basis for new business models and the deployment of these services. It is also essential in order to ensure the free flow of information and audiovisual programmes in the internal market. The application of this principle cannot exclude a reference to the criteria of the origin of the resources of a service with a view to ensuring the conditions for fair competition.

Justification

The country of origin principle is fundamental to the proposed Directive. Member States must be able to apply stricter rules in the fields coordinated by the Directive to audiovisual media service providers under their jurisdiction. The codification of Court of Justice case-law and the introduction of new criteria based on the origin of a service’s resources, combined with a more efficient procedure, offers an appropriate solution which takes account of Member States’ concerns without calling into question the country of origin principle.

(19a) To promote a strong, competitive and integrated European audiovisual industry and enhance media pluralism throughout the European Union, it remains essential that only one Member State should have jurisdiction over an audiovisual media service provider and that pluralism of information should be a fundamental principle of the European Union.

(19b) It is therefore essential that the Member States prevent the emergence of dominant positions that would lead to a limitation of pluralism and restrictions on freedom of media information as well as on the information sector as a whole, for instance by taking measures to secure non-discriminatory access to audiovisual media service offerings in the public interest, e.g. through must-carry rules.

(20) Technological developments, especially with regard to digital satellite programmes, mean that subsidiary criteria need to be adapted in order to ensure suitable regulation and effective implementation and to give players genuine power over the content of an audiovisual content service.

(20) Technological developments, especially with regard to digital satellite programmes, mean that subsidiary criteria need to be adapted in order to ensure suitable regulation and effective implementation and to give players genuine power over the content of an audiovisual media service.

Justification

Editorial clarification.

(23) Member States must be able to apply stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction. To ensure that such rules are not circumvented, the codification of the case law of the European Court of Justice, combined with a more efficient procedure, is an appropriate solution that takes account of Member State concerns without calling into question the proper application of the country of origin principle.

(23) Member States must be able to apply stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction, while ensuring that those rules are consistent with Community competition law. To ensure that such rules are not circumvented, the codification of the case law of the European Court of Justice, combined with a more efficient procedure, is an appropriate solution that takes account of Member State concerns without calling into question the proper application of the country of origin principle.

Justification

Allowing Member States the possibility to apply specific measures in the context of this Directive must not lead to infringement of the basic rules of competition law.

(23a) In order for a Member State to prove on a case-by-case basis that a media service provider established in another Member State is circumventing its rules, that Member State may cite indicators such as the origin of the advertising and/or subscription revenues, the main language of the service or the existence of programmes or commercial communications targeted specifically at the public in the Member State where they are received.

(Corresponding to Article 3 point 1b)

(24) Under this Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict the freedom of movement of television broadcasting, but only under certain conditions listed in Article 2a of this Directive and following the procedure laid down in this Directive. However, the European Court of Justice has consistently held that any restriction of the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively.

(24) Under this Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict the freedom of movement of television broadcasting or non-linear audiovisual media services, but only under certain conditions listed in Article 2a of this Directive and following the procedure laid down in this Directive. However, the European Court of Justice has consistently held that any restriction of the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively, with particular reference to the protection of minors and health and provided always that the ex ante control of ideas or opinions is not be permitted under any circumstances.

With respect to non-linear audiovisual services, the possibility of taking measures under Article 2a of this Directive replaces the possible measures which could have hitherto been taken by the Member State concerned as set out in Article 3(4) and/or Article 12 (3) of Directive 2000/31/EC within the area coordinated by Articles 3d and 3e of this Directive.

(25) In its Communication to the Council and the European Parliament on Better Regulation for Growth and Jobs 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 or self regulation should be considered. For co-regulation and self-regulation, the Interinstitutional Agreement on Better Law-making1 provides agreed definitions, criteria and procedures. 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.

1 OJ C 321, 31.12.2003, p. 1.

(25) In its Communication to the Council and the European Parliament on Better Regulation for Growth and Jobs 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 or self regulation should be considered. Furthermore, experience showed that both 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.

Measures aimed at achieving public interest objectives in the emerging audiovisual media services sector will be more effective if they are taken with the active support of the service providers themselves.

Thus self regulation constitutes a type of voluntary initiative, which enables the economic operators, social partners, non-governmental organisations or associations to adopt common guidelines amongst themselves and for themselves.

Member States should, in accordance with their different legal traditions, recognise the effective role which effective self-regulation can play as a complement to the legislation and judicial and/or administrative mechanisms in place and its useful contribution to the achievement of the objectives of this Directive.

However, while self-regulation might be a complementary method of implementing certain provisions of this Directive, it cannot constitute a substitute for the obligation of the national legislator. Co-regulation gives, in its minimal form, a "legal link" between self-regulation and the national legislator in accordance with the legal traditions of the Member States.

(25a) The generic term “co-regulation” covers regulatory instruments which are based on cooperation between State bodies and self-regulating bodies, and vary widely in terms of their designations and structures at national level. The actual form which such instruments take reflects the specific tradition of media regulation in the individual Member States. What co-regulation systems have in common is that tasks and objectives which were originally the preserve of the State are achieved in cooperation with the players affected by regulation. Designated or authorised by the State, it is for the participants themselves to guarantee the achievement of the regulatory objective. In every case the systems are founded on a State legal framework which lays down instructions as to content, organisation and procedures. On this basis, the interested parties create further criteria, rules and instruments, compliance with which they themselves monitor. Self-regulation as thus defined enables specialist knowledge to be exploited directly for administrative tasks, and bureaucratic procedures to be avoided. It is necessary for all, or at least the most influential, players to participate in or recognise the system. Co-regulation operates by combining instructions to the interested parties with opportunities for State intervention should those instructions not be carried out.

Justification

The definition of co-regulation and self-regulation in the context of this directive describes the law-making process and the task of the self-regulation bodies, and outlines the scope for action by the Member States.

(26) Entertainment rights for events of public interest may be acquired by broadcasters on an exclusive basis. However, it is essential to promote pluralism through the diversity of news production and programming across the European Union and to respect the principles recognised by Article 11 of the Charter of Fundamental Rights of the European Union.

(26) Entertainment rights for events of public interest may be acquired by broadcasters on an exclusive basis. However, it remains essential to promote free access to information and media pluralism as well as the protection of cultural multiformity, through the diversity of news production and programming across the European Union and to respect the principles recognised by Article 11 of the Charter of Fundamental Rights of the European Union. To this end, where Member States are permitted to draw up lists of events of substantial social interest which must not be broadcast on an exclusive basis, it is for the individual Member State to decide whether to draw up such a list, which events it regards as having substantial social interest for society, how the expression ‘a substantial proportion of the public’ is defined and what type of reporting should be made available.

(26) Media literacy refers to the skills, knowledge and understanding to enable consumers 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 material. It is therefore of crucial importance that Member States and national regulatory authorities actively promote the development of media literacy in all sections of society and that they conduct regular research to monitor it and to inform their approach to content regulation.

Justification

Media literacy is increasingly becoming a fundamental component of European and national communications policy agendas since it actively complements and underpins regulation. Important initiatives are being developed at European and national levels to advance people’s media literacy, so that they can take full advantage of the benefits brought about by digital technologies. The Audiovisual Media Services Directive should recognise and provide direction to such efforts.

(27) Therefore, in order to safeguard the fundamental freedom to receive information and to ensure that the interests of viewers in the European Union are fully and properly protected, those exercising exclusive rights concerning an event of public interest should grant other broadcasters and intermediaries, where they are acting on behalf of broadcasters, the right to use short extracts for the purposes of general news programming on fair, reasonable and non-discriminatory terms taking due account of exclusive rights. Such terms should be communicated in a timely manner before the event of public interest takes place to give others sufficient time to exercise such a right. As a general rule, such short extracts should not exceed 90 seconds.

(27) Therefore, in order to safeguard the fundamental freedom to receive information and to ensure that the interests of viewers in the European Union are fully and properly protected, those exercising exclusive rights concerning an event of high public interest must grant other broadcasters and intermediaries where they are acting on behalf of broadcasters, the right to use short extracts for the purposes of general news programming on fair, reasonable and non-discriminatory terms taking due account of exclusive rights. Such terms should be communicated in a timely manner before the event of public interest takes place to give others sufficient time to exercise such a right. As a general rule, such short extracts should not:

- exceed 90 seconds,

- be screened later than 36 hours after

the event,

- be used to create a public archive,

- omit the logo or other identifier of the host broadcaster, or

- be used in non-linear services except if offered on a live or deferred basis by the same media service provider. The right to trans-frontier news access should apply only where it is necessary; accordingly, if another broadcaster in the same Member State has acquired exclusive rights to the event in question, access must be sought from that broadcaster.

(28) Non-linear services are different from linear services with regard to choice and control the user can exercise and with regard to the impact they have on society. This justifies imposing lighter regulation on non-linear services, which only have to comply with the basic rules provided for in Articles 3c to 3h.

(28) Non-linear services are different from linear services with regard to choice and control the user can exercise and with regard to the impact they have on society. This justifies imposing lighter regulation on non-linear services, which only have to comply with the basic rules provided for in Articles 3c to 3h. For linear audiovisual media services or television broadcasting services which are also offered on a live or deferred basis as non-linear services by a media service provider, the requirements of this Directive are deemed to be met by the linear transmission.

Justification

Clarifies which rules take precedence under this directive.

(29) Because of the specific nature of audiovisual media services, especially the impact of these services on the way people form their opinions, it is essential for users to know exactly who is responsible for the content of these services. It is therefore important for Member States to ensure that media service providers make easily, directly and permanently accessible the necessary information on who has editorial responsibility for the content. It is for each Member State to decide the practical details as to how this objective can be achieved without prejudice to any other relevant provisions of Community law.

(29) Because of the specific nature of audiovisual media services, especially the impact of these services on the way people form their opinions, it is essential for users to know exactly who is responsible for the content of these services. It is therefore important for Member States to ensure that users have access to information about the ways in which editorial responsibility for the content is exercised and by whom. It is for each Member State to decide the practical details as to how this objective can be achieved without prejudice to any other relevant provisions of Community law.

(30) In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market. Where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as audiovisual media services are concerned, the Directive must ensure a high level of protection of objectives of general interest, in particular the protection of minors and human dignity.

(30) In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market. Where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as audiovisual media services are concerned, the Directive must promote a high level of protection of objectives of general interest, in particular the protection of minors, the rights of persons with disabilities and human dignity.

Justification

Action at the community level is unable to ensure a high level of protection, but it can encourage it through a combination of co-and self-regulation.

Furthermore, today, the audiovisual media, and especially television, are a channel to obtain information, educational training, cultural contents and access to leisure time in a rather significant manner. For this reason, it is indispensable that any progress that occurs should take fairly into account the possible needs of all European citizens, especially the handicapped, because otherwise they would remain excluded from the wide range of benefits that modern society and in particular digital TV can provide.

(31) Harmful content and conduct in audiovisual media services continue to be a concern for law-makers, industry and parents. There will also be new challenges, especially in connection with new platforms and new products. It is therefore necessary to introduce rules to protect the physical, mental and moral development of minors as well as human dignity in all audiovisual media services and in audiovisual commercial communication.

(31) Harmful content and conduct in audiovisual media services continue to be a concern for law-makers, industry and parents. In this regard it would seem necessary to educate not only children, but also their parents, teachers and educationalists, to make the best use of all the communications media, particularly audiovisual media services, however they may be delivered. It is therefore necessary to introduce rules to protect the physical, mental and moral development of minors as well as human dignity in all audiovisual media services and in audiovisual commercial communication, advertising, telesales, sponsorship, product placement and any other technically feasible means.

Justification

Technological progress creates an urgent need to educate not only minors and their parents but also, particularly, teachers and educationalists for the educative tasks that society requires, in using the communication media and especially audiovisual media services properly, however they may be disseminated.

(31a) The Member States should ensure that their respective national curricula and further education courses provide for a critical appreciation of the media.

Justification

We need our citizens to have a mature and educated attitude towards the media, as otherwise it will be impossible to cope with the effects of the media explosion brought about by digitalisation. Any hope of self- and co-regulation is based on the assumption that citizens are practised in the use of the media, and know how they work, what they can do and what interests they represent.

(32) Measures taken to protect minors and human dignity must be carefully balanced with the fundamental right to freedom of expression as laid down in the Charter on Fundamental Rights of the European Union. The aim of these measures should thus be to ensure an adequate level of protection of minors especially with regard to non-linear services but not to ban adult content as such.

(32) Measures taken to protect minors and human dignity must be carefully balanced with the fundamental right to freedom of expression as laid down in the Charter on Fundamental Rights of the European Union. The aim of these measures should however be to ensure an adequate level of protection of minors and human dignity, especially with regard to non-linear services, by means of an obligation to clearly draw attention to the specific nature of certain programmes before they are transmitted and in accordance both with Article 1 of the Charter of Fundamental Rights of the European Union, recognising that human dignity is inviolable and must be respected and protected, and with Article 24 of the Charter, which states that children shall have the right to such protection and care as is necessary for their well-being, and that in all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

(32a) Minors and the vulnerable and disabled, including the mentally disabled, may be particularly undermined and psychically or psychologically upset and disturbed by programmes which feature scenes of verbal, physical or moral violence or by scenes which offend against human dignity, or incite racial hatred or any other form of discrimination. Insofar as one of the objectives of this Directive is to protect such persons in general, Member States are strongly encouraged to remind audiovisual media service providers of this overriding need and to require them to clearly indicate the particular nature of such programmes prior to their being broadcast.

Justification

The protection of minors and the vulnerable and disabled must remain one of the main focuses of concern for both European and national law-makers. It must also be the concern of audiovisual media service providers, whose duty it is to forewarn the users of their services of the harmful effect that certain scenes or programmes might have on vulnerable members of the public. There is clear scope for self regulation and co-regulation in this area.

(33) None of the provisions of this Directive that concern the protection of minors and public order necessarily requires that the measures in question be implemented through prior control of audiovisual media services.

(33) None of the provisions of this Directive that concern the protection of minors and public order necessarily requires that the measures in question be implemented through prior control of audiovisual media services, nor do they justify such control. Member States should be encouraged to establish co- and self-regulation systems.

(34) Article 151(4) of the Treaty requires the Community to take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures.

(34) Article 151(4) of the Treaty requires the Community to take cultural aspects into account in its action under other provisions of this Treaty, in particular in order to respect and to promote the diversity of its cultures and languages, and also to encourage mutual understanding.

Justification

The protection and promotion of the cultural diversity can encourage the intercultural dialogue and help to achieve a better mutual understanding, withdrawing the prejudices which are usually major causes of today´s conflicts. This is crucial to achieve a more peaceful coexistence.

(35) Non-linear audiovisual media services have the potential to partially replace linear services. Accordingly, they should where practicable promote the production and distribution of European works and thus actively contribute to the promotion of cultural diversity. It will be important to regularly re-examine the application of the provisions relating to the promotion of European works by audiovisual media services. Within the framework of the reports set out in Article 3f paragraph 3, Member States shall also take into account notably the financial contribution by such services to the production and rights acquisition of European works; the share of European works in the catalogue of audiovisual media services as well as in the effective users’ consumption of European works proposed by such services.

(35) Non-linear audiovisual media services have the potential to partially replace linear services. Accordingly, they should where practicable promote the production and distribution of European works and thus actively contribute to the promotion of cultural diversity. In the promotion of non-linear audiovisual media services, support for European works might for example take the form of a minimum share of European works proportionate to economic performance, a minimum share of European works in video-on-demand catalogues, or the attractive presentation of European works in electronic programme guides. It will be important to regularly re-examine the application of the provisions relating to the promotion of European works by audiovisual media services. Within the framework of the reports set out in Article 3f paragraph 3, Member States shall also take into account notably the financial contribution by such services to the production and rights acquisition of European works; the share of European works in the catalogue of audiovisual media services as well as in the effective users’ consumption of European works proposed by such services. In these reports, appropriate account should also be taken of the works of independent producers.

Justification

These additions demonstrate possible ways in which non-linear audiovisual media might be promoted while also complying with the reporting requirement.

(35a) Parties who merely bundle or transmit audiovisual media services or offer for sale packages of such services, for which they do not have any editorial responsibility, should not be considered as media service providers. Thus, mere bundling, transmission or onward selling of content offers, for which they do not have any editorial responsibility, do not fall within the scope of this Directive.

Justification

It should be made clear that – as to date – pure bundling, transmission or reselling of content offers for which third parties do not have the editorial responsibility as media service providers are not included in the scope of the Directive. As providers have no influence on and therefore no control over such content such a clarification is necessary

(36) When implementing the provisions of Article 4 of Directive 89/552/EEC as amended, Member States should make provision for broadcasters to include an adequate share of co-produced European works or of European works of non-domestic origin.

(36) When implementing the provisions of Article 4 of Directive 89/552/EEC as amended, Member States should adopt appropriate measures to encourage broadcasters to include an adequate share of co-produced European works or of European works of non-domestic origin.

Justification

It is the Member States who can take measures in order to promote not only the broadcasting of European works of domestic origin, but also of European works of non-domestic origin.

(36a) Media service providers should also include in their services the works of independent producers, while respecting the rights attaching to repeat showings of such works and the fair apportionment of contributors' rights.

Justification

The multiple use of programmes of independent producers does not respect the intellectual rights of contributors.

(38) The availability of non-linear services increases the choice of the consumer. Detailed rules governing audiovisual commercial communication for non-linear services thus appear neither to be justified nor to make sense from a technical point of view.

(38) The availability of non-linear services increases the choice of the consumer. The Member States should therefore make provision in their national curricula and further education courses for sufficient education in critical use of the media, to avoid the need to introduce detailed rules governing audiovisual commercial communication. Detailed rules governing audiovisual commercial communication for non-linear services thus appear neither to be justified nor to make sense from a technical point of view.

Justification

We need our citizens to have a mature and educated attitude towards the media, as otherwise it will be impossible to cope with the effects of the media explosion brought about by digitalisation. Any hope of self- and co-regulation is based on the assumption that citizens are practised in the use of the media, and know how they work, what can do and what interests they represent.

(38a) The right of reply is a particularly appropriate legal remedy in the online environment, since it is possible to correct the contested information immediately. However, the right should be exercised within a reasonable period after receipt of the request, at a time and in a form which appears appropriate in view of the particular programme to which the request relates. The reply must in particular be given the same weight as the contested information, so as to reach the same circle of users with the same effects.

Justification

The specific characteristics of non-linear audiovisual media services must be taken appropriately into account in connection with the right of reply.

(40) Commercial and technological developments give users increased choice and responsibility in their use of audiovisual media services. To remain proportionate with the goals of general interest, regulation must allow a certain degree of flexibility with regard to linear audiovisual media services: the separation principle should be limited to advertising and teleshopping, product placement should be allowed under certain circumstances and some quantitative restrictions should be abolished. However, where product placement is surreptitious, it should be prohibited. The separation principle should not prevent the use of new advertising techniques.

(40) Commercial and technological developments give users increased choice and responsibility in their use of audiovisual media services. To remain proportionate with the goals of general interest, regulation must allow a certain degree of flexibility with regard to linear audiovisual media services: the separation principle should be limited to advertising and teleshopping, product placement should be allowed under certain circumstances in certain cases determined on the basis of a positive list, and some quantitative restrictions should be abolished. However, where product placement is surreptitious, it should be prohibited. The separation principle should not prevent the use of new advertising techniques.

Justification

It needs to be made clear that product placement is not allowed generally, but only under certain circumstances in cases set out in the positive list.

(41) Apart from the practices that are covered by the present Directive, Directive 2005/29/EC applies to unfair commercial practices, such as misleading and aggressive practices occurring in audiovisual media services. Moreover, as Directive 2003/33/EC, which prohibits advertising and sponsorship for cigarettes and other tobacco products in printed media, information society services and radio broadcasting, is without prejudice to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in view of the special characteristics of audiovisual media services, the relation between Directive 2003/33/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive. Article 88(1) of Directive 2001/83/EC which prohibits advertising to the general public of certain medicine products applies, as provided in paragraph 5 of the same Article, without prejudice to Article 14 of Directive 89/552/EEC; the relation between Directive 2001/83/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive.

(41) It is necessary to ensure coherence between this Directive and existing Community law. Accordingly, in the event of conflict between the provisions of this Directive and a provision of another Community act governing specific aspects of access to or exercise of an audiovisual media service activity, the provisions of this Directive should prevail. This Directive consequently complements the Community acquis. Thus, apart from the practices that are covered by the present Directive, Directive 2005/29/EC applies to unfair commercial practices, such as misleading and aggressive practices occurring in audiovisual media services. Moreover, as Directive 2003/33/EC, which prohibits advertising and sponsorship for cigarettes and other tobacco products in printed media, information society services and radio broadcasting, is without prejudice to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in view of the special characteristics of audiovisual media services, the relation between Directive 2003/33/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive. Article 88(1) of Directive 2001/83/EC which prohibits advertising to the general public of certain medicine products applies, as provided in paragraph 5 of the same Article, without prejudice to Article 14 of Directive 89/552/EEC; the relation between Directive 2001/83/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive. Furthermore, this Directive is without prejudice to Regulation .../... of the European Parliament and of the Council on nutrition and health claims made on foods.

Justification

To provide legal certainty, the relationship between this Directive and the existing legal framework has to be clarified.

(42) As the increase in the number of new services has led to a greater choice for viewers, detailed regulation with regard to the insertion of spot advertising with the aim of protecting viewers is no longer justified. While the Directive does not increase the hourly amount of admissible advertising, it gives flexibility to broadcasters with regard to its insertion where this does not unduly impede the integrity of programmes.

(42) Given the increased use of new technologies such as personal video recorders and increased choice of channels, detailed regulation with regard to the insertion of spot advertising with the aim of protecting viewers is no longer justified. This Directive gives flexibility to broadcasters with regard to its insertion where this does not unduly impede the integrity of programmes.

Justification

Technology has advanced to the point where it is now easy to skip traditional spot advertisements. Therefore more flexibility is needed to ensure the viability of free to air broadcasting and increased cultural diversity.

(43) The Directive is intended to safeguard the specific character of the European television landscape and therefore limits possible interruptions for cinematographic works and films made for television as well as for some categories of programmes that still need specific protection.

(43) The Directive is intended to safeguard the specific character of the European television landscape. Advertising and teleshopping spots may be inserted during programmes only in such a way as not to prejudice the integrity and value of the programme, taking into account natural breaks and the duration and nature of the programme, or the rights of the rights holders.

Justification

Audiovisual media service providers that invest in expensive original content such as films made for television (TV-movies) or cinematographic films must be enabled to refinance this kind of premium content. As this premium content is costly and very important for the company’s brand, advertising will be inserted in a very sensitive and responsible manner so that Premium content will not be devaluated by to much or misplaced advertising. Restrictions in the possibilities to insert advertising in films will restrict the funding of this content. As a result there audiovisual media providers might not continue to invest in films in the future. A general rule on the protection of the integrity of the film and on the programme flow as well as on the protection of copy rights will further the objective to invest in films also in the future.

(46) Product placement is a reality in cinematographic works and in audiovisual works made for television, but Member States regulate this practice differently. To ensure a level playing field, and thus enhance the competitiveness of the European media industry, it is necessary to adopt rules for product placement. The definition of product placement introduced here covers any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, normally in return for payment or for similar consideration. It is subject to the same qualitative rules and restrictions applying to advertising.

(46) Product placement is a reality in cinematographic works and in audiovisual works made for television, but Member States regulate this practice differently. To ensure a level playing field, and thus enhance the competitiveness of the European media industry, it is necessary to adopt rules for product placement. It is useful to have a positive list which authorises product placement in the types of content whose paramount function is not to influence opinion, and in cases in which no - or only negligible - consideration is provided in return. The definition of product placement covers any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, normally in return for payment or for similar consideration. It may consist of placing at a person’s disposal services or items having a monetary value, for the acquisition of which the recipient would otherwise have had to use his own financial, personal or material resources. Product placement is subject to the same qualitative rules and restrictions applying to advertising. It should, furthermore, meet specific requirements. The editorial responsibility and independence of the media service provider must not be jeopardised. In particular, the way the product is included in the programme must not create the impression that the product is endorsed by the programme or its presenters. Furthermore, the product must not be given ‘undue prominence’. This means prominence which is not justified by the editorial requirements of the programme, or the need to lend verisimilitude. Undue prominence may also mean the repeated appearance of the brands, goods or services in question or the manner in which they are given prominence. Account should also be taken of the content of the programme in which they are introduced. In the interests of consumer protection and transparency, there should be a comprehensive requirement to display a symbol. The symbol superimposed in the course of the programme should not be based on the logo of the firm providing the product, to avoid introducing any additional advertising effect. For that reason, a neutral logo should be chosen.

Justification

To regulate product placement, it is useful to have an affirmative list which establishes that it is permissible in cases in which influencing opinion is not the paramount function, or in which there is negligible risk of editorial content being influenced.

The criterion of undue prominence is defined by reference to the content of the Commission communication on questions arising from certain aspects of the ‘television without frontiers’ Directive on television advertising (2004C 102/02).

(46a) ‘Production aids' means the mentioning or presentation of goods or services for editorial reasons without payment or similar consideration. In order to draw the distinction between production aids and product placement within the meaning of this directive, the legal framework for the use of production aids permitted in all programme formats should be clarified.

Justification

The inclusion of product placement in this directive makes it necessary to clarify the legal status of production aids as well.

(46b) ‘Undue prominence’ is given when the repeated representation of the brand, good or service or the nature of its presentation is such as to give undue prominence to products in the context of production aids or product placement, taking account of the content of the programmes in which they appear.

Justification

Undue prominence is a central criterion in identifying product placement and should therefore be more clearly defined.

(47) Regulators should be independent from national governments as well as from audiovisual media service providers in order to be able to carry out their work impartially and transparently and to contribute to pluralism. Close cooperation among national regulatory authorities and the Commission is necessary to ensure the correct application of this Directive,

(47) Regulators should be independent from national governments as well as from audiovisual media service providers in order to be able to carry out their work impartially and transparently and to contribute to pluralism. Close cooperation between competent national authorities and the Commission is necessary to ensure the correct application of this Directive. Similarly close cooperation between Member States and between Member States' regulatory authorities is particularly important with regard to the impact broadcasters established in one Member State might have in another Member State. Where licensing procedures are provided for in national law and if more than one Member State is concerned, it is desirable that contacts between the respective authorities take place before licences are granted. This cooperation should cover all the fields coordinated by this Directive and in particular Articles 2, 2a and 3.

(47a) Cultural diversity, freedom of expression and media pluralism of means of communication are some important aspects of the European audiovisual sector and are therefore indispensable preconditions for democracy and diversity.

Justification

For a more integrated approach to the characteristics of the European audiovisual sector.

(47b) The right of persons with disabilities, the elderly and non-EU nationals whose mother-tongue is different from the language of their host country to participate and integrate in the social and cultural life of the community in accordance with Articles 25 and 26 of the Charter of Fundamental Rights of the European Union is inextricably linked with the provision of accessible audiovisual media services. The accessibility of audiovisual media services includes, but is not restricted to, sign language, subtitling, audio-description and easily understandable menu navigation.

(a) ‘audiovisual media service’ means 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 within the meaning of Article 2(a) of Directive 2002/21/EC of the European Parliament and of the Council.

(a) ‘audiovisual media service’ means a service provided under the editorial responsibility of a media service provider as defined by Articles 49 and 50 of the Treaty the principal purpose of which is the provision of programmes consisting of moving images with or without sound, in order to inform, entertain or educate, to the general public by electronic communications networks within the meaning of Article 2(a) of Directive 2002/21/EC of the European Parliament and of the Council and/or audiovisual commercial communications.

It does not include services where the provision of audiovisual content is merely incidental to the service and not its principal purpose, nor does it include the press in printed and electronic form.

Justification

In order to distinguish audiovisual media services more clearly from other audiovisual services, it needs to be made clear that the offer of moving images consists of programmes for which the media service provider bears editorial responsibility (see Article 1(b) of the Commission proposal). For purposes of clarification it is reiterated that the printed and electronic press are not covered by the scope of the directive.

(b) ‘media service provider’ means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;

(b) ‘media service provider’ means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised.

It does not include natural or legal persons who merely transmit content for which the editorial responsibility lies with third parties;

Justification

The mere transmission of content for which the editorial responsibility lies with a third party as media service provider is not covered by the scope of the directive.

(c) ‘television broadcasting’ or ‘television broadcast’ mean a linear audiovisual media service where a media service provider decides upon the moment in time when a specific programme is transmitted and establishes the programme schedule;

(c) 'television broadcast' or 'linear service' means an audiovisual media service where a chronological sequence of programmes is transmitted to an indeterminate number of potential viewers, at a point in time decided upon by the media service provider according to a set programming schedule;

Justification

Clarifies that the term ‘television broadcast(ing)’ means a simultaneous offer of programmes to an unlimited number of viewers in accordance with a fixed programme schedule.

(e) ‘non-linear service’ means an 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;

(e) 'on demand service' or ‘non-linear service’ means an audiovisual media service consisting of an offer of audiovisual content, edited or compiled by a media service provider, and where the user, on an individual basis, requests the delivery of a particular programme from among a selection of content and at the time of his choice;

Justification

Clarification of the term “non-linear service” as an on-demand media service.

(f) ‘audiovisual commercial communication’ means moving images with or without sound which accompany audiovisual media services and are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity;

(f) ‘audiovisual commercial communication’ means moving images with or without sound which are transmitted as part of an audiovisual media service or, in cases such as dedicated teleshopping channels, as an audiovisual media service, with the aim of promoting, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity;

Justification

Wording reflects the differing types of advertising.

(h) ‘surreptitious advertising’ means the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the broadcaster to serve advertising and might mislead the public as to its nature. Such representation is considered to be intentional in particular if it is done in return for payment or for similar consideration;

(h) ‘surreptitious advertising’ means the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the media service provider to serve advertising and might mislead the public as to its nature. Such representation is considered to be intentional in particular if it is done in return for payment or for similar consideration;

Justification

Surreptitious advertising should be prohibited in non-linear services too.

(ha) ‘product integration’ and ‘thematic placement’ mean the intervention of any undertaking or body in the plot of a film or fictional programme seeking to promote in particular a product, service or brand;

Justification

This definition is essential in order to clarify what is meant by thematic placement.

(i) ‘sponsorship’ means any contribution made by a public or private undertaking not engaged in providing audiovisual media services or in the production of audio-visual works, to the financing of audiovisual media services, with a view to promoting its name, its trade mark, its image, its activities or its products;

(i) ‘sponsorship’ means any contribution made by a public or private undertaking or natural person not engaged in providing audiovisual media services or in the production of audio-visual works, to the direct or indirect financing of audiovisual media services, with a view to promoting its name, its trade mark, its image, its activities or its products;

(ia) ‘telepromotion’ means a form of advertising consisting of the display of goods or services or a spoken or visual presentation of the goods and services of a goods producer or services supplier, transmitted as part of a programme to promote the supply of the goods or services presented or displayed in return for payment;

Justification

The concept of ‘telepromotion’ represents a particular form of audiovisual commercial communication which therefore requires a specific definition. With regard to the definition, it should be noted that telepromotion was given tentative recognition through its inclusion in the interpretative communication of April 2004. Like other forms of advertising, telepromotion must be subject to time limits and, since the amendment of the directive abolishes daily limits, telepromotions need to be included in the hourly limits.

(k) ‘product placement’ means any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within audiovisual media services, normally in return for payment or for similar consideration.

(k) ‘product placement’ means any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within audiovisual media services, with or without payment or similar consideration to the media service provider. It does not include, however, communications resulting from independent editorial decisions to use products, without undue prominence, which are integral to a programme and facilitate its production, such as prizes awarded in programmes, branded merchandising products and incidental objects and props;.

Justification

It is a characteristic of product placement that it is carried out in return for payment or for similar consideration.

The definition of ‘product placement’ should exclude cases where the products form an independent part of a programme (for instance, as casual objects) and their inclusion is based on an independent and non-commercial editorial decision. Otherwise the rules on product placement would adversely affect editorial decisions to use objects from daily life in audiovisual productions.

Moreover, it is important that the new regulations on product placement do not accidentally outlaw already existing and legitimately practiced formats in programming. Under the current definition, for example, the use of branded prizes would remain prohibited in children's programmes.

(ka) ‘production aids' means goods or services made available without payment or other consideration and used for editorial reasons;

Justification

Draws the distinction between production aids and product placement.

(kb) ‘programme’ means a set of moving images with or without sound constituting an individual item within a schedule or a catalogue established or compiled by a media service provider;

(kc)'co-regulation' means a form of regulation based on cooperation between public authorities and self-regulating bodies.

Justification

It is important to give additional definitions.

(kd) ‘editorial responsibility’ means responsibility for the composition of the schedule or the compilation of programmes intended for the general public, in a professional capacity, in order to deliver the media content within a set time frame or to allow it to be ordered from a catalogue.

Justification

The term ‘editorial responsibility’ is very important for the scope of the directive and therefore requires a definition.

“6. This Directive does not apply to audiovisual media services intended exclusively for reception in third countries and which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States.”

“6. This Directive does not apply to audiovisual media services which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States.”

Justification

This Directive is intended (among other issues) to provide good service standards for European consumers of audiovisual media services. There is no reason to consider that citizens in other countries should be granted European audiovisual media services with lower standards than the ones that apply to EU. A good example from EU in this matter can have a global positive impact on the evolution of this sector.

(g) The following new paragraphs 7, 8, 9 and 10 are added:

deleted

“7. 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. This shall be proven on a case by case basis by the first Member State.

8. Member States may take measures pursuant to paragraph 7 only if all of the following conditions are met:

(a) the receiving Member State asks the Member State in which the media service provider is established to take measures;

(b) the latter Member State does not take such measures;

(c) 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 and

(d) the Commission decides that the measures are compatible with Community law.

9. Any measures pursuant to paragraph 7 shall be objectively necessary, applied in a non-discriminatory manner, be suitable for attaining the objectives which they pursue and may not go beyond what is necessary to attain them.

10. The Commission shall decide within three months following notification under paragraph 8. If the Commission decides that the measures are incompatible with Community law, the Member State in question shall refrain from taking the proposed measures.”

(b) In paragraph 2 "Article 22a" is replaced by "Article 3e".

(b) Paragraph 2 is replaced by the following:

"2. Member States may, provisionally, derogate from paragraph 1 if the following conditions are fulfilled:

(a) an audiovisual media service coming from another Member State manifestly, seriously and gravely infringes Article 22 (1) or (2) and/or Articles 3d or 3e;

(b) during the previous 12 months, the media service provider has infringed the provision(s) referred to in (a) on at least two prior occasions;

(c) the Member State concerned has notified the media service provider, the Member State in which it is established and the Commission in writing of the alleged infringements and of the measures it intends to take should any such infringement occur again;

(d) consultations with the Member State of establishment and the Commission have not produced an amicable settlement within 15 days of the notification provided for in (c), and the alleged infringement persists."

Justification

It should be possible to react in the event of serious infringements in non-linear media services, as it is now for TV broadcasts.

2a. Member States may, in urgent cases, provisionally take measures to derogate from paragraph 1 without fulfilling the conditions set out in points 2(b), 2(c) and 2(d) above. If they do so, the measures shall be notified in the shortest possible time to the Commission and to the Member State in which the media service provider is established, with an indication of the reasons for which the Member State considers that the case is urgent.

2b. The Commission shall, within two months following notification of the measures taken by the Member State, take a decision on whether the measures are compatible with Community law. If it decides that they are not, the Member State shall be required to withdraw the measures in question as a matter of urgency.

3. Paragraph 2 shall be without prejudice to the application of any procedure, remedy or sanction to the infringements in question to the Member State which has jurisdiction over the broadcaster concerned.

3. Paragraph 2 shall be without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the media service provider concerned.

1. Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive.

1. Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the areas covered by this Directive, provided that such rules do not conflict with general principles of EU law.

1a.      Where a Member State:

(a) has exercised its freedom under paragraph 1 to adopt more detailed or stricter rules in the general public interest; and

(b) considers that a media service provider under the jurisdiction of another Member State directs all or most of its activity towards its territory

it may contact the Member State having jurisdiction with a view to achieving a mutually satisfactory solution to any problems posed. On receipt of a substantiated request by the first Member State, the Member State having jurisdiction shall request the media service provider concerned to comply with the rules of general public interest in question. The Member State with jurisdiction shall inform the first Member State of the results obtained following this request within two months.

1b. Where the first Member State considers:

(a) that the results achieved through the application of paragraph 1a are not satisfactory; and

(b) that the media service provider concerned has established itself in the Member State having jurisdiction in order to avoid the stricter rules, in the fields coordinated by this Directive, to which it would be subject if it were established in the first Member State,

it may adopt appropriate measures against the media service provider concerned, in order to prevent abuse or fraudulent conduct.

Such measures shall be objectively necessary, applied in a non-discriminatory manner, be suitable for attaining the objectives which they pursue and may not go beyond what is necessary to attain them.

1c. A Member State may take measures pursuant to paragraph 1b only if all of the following conditions are met:

(a) it has notified the Commission and the Member State in which the media service provider is established of its intention to take such measures while substantiating the grounds on which it proposes to adopt the measures and

(b) the Commission decides that the measures are compatible with Community law, and in particular that the reasons for which that Member State proposes to take the measures under paragraphs 1a and 1b are well-founded.

1d. The Commission shall decide within three months following notification under paragraph 1c(a). If the Commission decides that the measures are incompatible with Community law, the Member State in question shall refrain from taking the proposed measures.

3. Member States shall encourage co-regulatory regimes in the fields coordinated by this Directive. These regimes shall be such that they are broadly accepted by the main stakeholders and provide for effective enforcement.

3. Member States shall encourage self- and/or co-regulatory regimes at national level in the fields coordinated by this Directive. These regimes shall be such that they are broadly accepted by the main stakeholders in the Member State concerned and provide for effective enforcement.

3a. Relationship with other provisions of Community law

If the provisions of this Directive conflict with a provision of another Community act governing aspects of access to an activity relating to audiovisual media services, or the exercise of that activity, the provisions of this Directive shall prevail.

Justification

The relationship between the proposal for a directive on audiovisual media services and other Community acts has not been clarified in the proposal. Consequently, in the event of conflict between the provisions of the proposal for a directive on audiovisual media services and other Community acts there is still uncertainty about the primacy of the provisions of this directive over any provision in another Community act.

In the interests of ensuring greater legal certainty we propose the insertion into the directive on audiovisual media services of a new provision whereby this directive will take precedence in the event of conflict with another Community act.

3b. Member States shall, by appropriate means, promote the development of media literacy amongst consumers.

Justification

Media literacy refers to the skills, knowledge and understanding of consumers to enable them to use media effectively. It is increasingly becoming a fundamental component of European and national communications policy agendas since it actively complements and underpins regulation. Important initiatives are being developed at European and national levels to advance people’s media literacy, so that they can take full advantage of the benefits brought about by digital technologies. The audiovisual media services directive should recognise and provide direction to such efforts.

1. Member States shall ensure that, for the purposes of short news reports, broadcasters established in other Member States are not deprived of access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted by a broadcaster under their jurisdiction.

1. Pursuant to the principle of freedom of access to information as enshrined, in particular, in Article 11 of the Charter of Fundamental Rights of the European Union, and without prejudice to existing contractual agreements between broadcasters, each Member States shall ensure that, for the purposes of short news reports, including reports intended for pan-European broadcasts, broadcasters established in other Member States are not deprived of access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted by a broadcaster under their jurisdiction. The broadcaster granting such access shall be entitled to appropriate compensation.

2. Short news reports may be chosen freely by the broadcasters from the transmitting broadcaster’s signal with at least the identification of their source.

2. Broadcasters may freely choose short extracts from the transmitting broadcaster's signal with at least the identification of their source. Such extracts shall be used exclusively for news purposes.

(2a) The provisions of this Article shall apply without prejudice to the obligation of individual broadcasters to respect copyright legislation, including Directive 2001/29/EC and/or the Rome Convention ('International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations' of 26th October 1961), and shall not affect that obligation in any way.

(2b). Member States shall ensure that the modalities and conditions governing the use of such short extracts are defined, in particular their maximum length, time limits regarding their transmission and requirements for the identification of the host broadcaster.

(2c). Broadcasters may, in accordance with the law of the Member State concerned and for the purpose of transmission, themselves gain access to the event concerned.

(d) where applicable, the competent regulatory authority.

(d) where applicable, the relevant regulatory or supervisory institution.

Member States shall take appropriate measures to ensure that audiovisual media services under their jurisdiction are not made available in such a way that might seriously impair the physical, mental or moral development of minors.

Member States shall ensure by appropriate means that audiovisual media services under their jurisdiction are not made available in such a way that might seriously impair the physical, mental or moral development of minors. This Article shall apply in particular to programmes containing pornography and gratuitous acts of violence. The Commission and the Member States should encourage the relevant players in the media sector to promote a Community-wide labelling, assessment and filtering system as a further measure to protect minors. The Member States shall promote measures to give parents and other carers greater control over the pornographic and gratuitously violent content of programmes.

1a. Member States shall ensure that audiovisual media service providers under their jurisdiction provide filtering systems for content that is damaging to the physical, mental or moral development of minors and inform users of their existence.

1b In particular, they shall not authorise commercial communications, sponsorship, advertising or product placement for goods manufactured under conditions which contravene international law prohibiting child labour.

Justification

It would be hypocritical to claim to protect the moral development of minors while at the same time drawing young consumers’ attention to products manufactured illegally by child labour.

1c. The Commission and the Member States shall encourage audiovisual media service providers, regulatory authorities and all parties concerned to consider the technical and legal feasibility of developing a harmonised system of content symbols promoting better filtering and classification at source, regardless of the delivery platform used, with a view to providing greater protection for minors.

1d. Member States shall ensure that audiovisual media service providers under their jurisdiction do not in any circumstances broadcast any child pornography under penalty of administrative and/or penal sanctions.

Justification

Against the background of what is occurring in many Member States with the disappearance and murder of children, offences relating to paedophilia, the distribution of pornographic material, Internet sites that encourage the exploitation of children and a growth in violence against women, it is increasingly urgent to intervene clearly and decisively against a social evil that particularly affects innocent and vulnerable age groups.

1e. Member States shall ask audiovisual media service providers under their jurisdiction to promote information campaigns to prevent violence against women and minors, where possible in collaboration with public and private associations and entities involved in this field.

Justification

Against the background of what is occurring in many Member States with the disappearance and murder of children, offences relating to paedophilia, the distribution of pornographic material, Internet sites that encourage the exploitation of children and a growth in violence against women, it is increasingly urgent to intervene clearly and decisively against a social evil that particularly affects innocent and vulnerable age groups.

Article 3da

Member States shall take appropriate measures to ensure that audiovisual media services under their jurisdiction are not made available in such a way that promotes or reinforces the portrayal of gender stereotypes.

Gender stereotypes portrayed in the media are a key factor in the continued existence of sex discrimination.

Member States shall ensure by appropriate means that audiovisual media services and audiovisual commercial communications provided by providers under their jurisdiction do not contain any incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Member States shall ensure by appropriate means that audiovisual media services and audiovisual commercial communications provided by providers under their jurisdiction do not contain any incitement to hatred based on sex, race, ethnic origin, religion or belief, disability, age or sexual orientation or offend against human dignity in any other manner.

(1) Member States shall ensure that media service providers under their jurisdiction promote where practicable and by appropriate means, production of and access to European works within the meaning of Article 6.

(1) Member States shall ensure that media service providers under their jurisdiction promote, where practicable and by appropriate means, and taking due account of the various means of delivery, the development, production of and access to European works within the meaning of Article 6. For non-linear audiovisual media services, support and promotion might take the form of a minimum number of European works proportionate to economic performance, a minimum share of European works and of European works created by producers who are independent of broadcasters in video-on-demand catalogues, or the attractive presentation of European and works created by such independent producers in electronic programme guides.

(4) The Commission shall, on the basis of the information provided by Member States, report to the European Parliament and the Council on the application of paragraph 1, taking into account the market and technological developments.

(4) The Commission shall, on the basis of the information provided by Member States and of an independent study, report to the European Parliament and the Council every three years on the application of paragraph 1, taking into account the market, technological developments and the objective of cultural diversity.

Member States shall ensure that audiovisual commercial communications provided by providers under their jurisdiction comply with the following requirements:

Member States shall ensure that audiovisual commercial communications provided by providers under their jurisdiction comply with principles laid down in the Charter of Fundamental Rights of the European Union and, in particular, the following requirements:

(a) audiovisual commercial communications must be clearly identifiable as such. Surreptitious audiovisual commercial communication shall be prohibited;

(a) audiovisual commercial communications must be clearly identifiable as such and kept quite separate from other parts of the programme service, in terms of both time and space, by optical and acoustic means. Surreptitious audiovisual commercial communication shall be prohibited;

Justification

The principle of strict separation between advertising and editorial content is essential, and requires advertising to be clearly identified by both optical and acoustic means.

(aa) audiovisual commercial communications shall respect the integrity of and natural breaks in the programme in the course of which they are transmitted;

Justification

Most pieces of cultural works such as operas, theatre plays are often broadcasted on television. In order to preserve the coherence of such works, it is of importance to adapt audiovisual commercial communications for the natural breaks of the programmes.

(b) audiovisual commercial communications must not use subliminal techniques;

(b) audiovisual commercial communications must not use subliminal techniques. Accordingly, the sound volume of advertisements, and of the programmes or sequences which precede and follow them, shall not exceed the average sound volume of other parts of the programme service. This obligation shall be as much the responsibility of advertisers as it is of broadcasters, which must ensure that advertisers comply with it when supplying their advertising material;

Justification

The average difference between advertising and programmes is usually significantly above the average volume for the rest of the programme service; this is a source of annoyance and may be regarded as a means used by advertisers to draw attention to their products or services without viewers being aware of this.

(c) audiovisual commercial communications must not:

(c) audiovisual commercial communications must not:

(-i) offend against human dignity;

(i) include any discrimination on grounds of race, sex, or nationality;

(i) be offensive on grounds of discrimination by race, gender, nationality, disability, age, or sexual orientation;

(ii) be offensive to religious or political beliefs;

(iii) encourage behaviour prejudicial to health or to safety;

(iii) encourage behaviour prejudicial to health or to safety;

(iv) encourage behaviour prejudicial to the protection of the environment.

(iv) encourage behaviour grossly prejudicial to the protection of the environment.

(d) all forms of audiovisual commercial communications and teleshopping for cigarettes and other tobacco products shall be prohibited;

(d) all forms of audiovisual commercial communications for cigarettes and other tobacco products shall be prohibited;

(da) Pornography, including depictions likely to incite hatred on the grounds of sex, shall be prohibited in all forms of audiovisual commercial communications and teleshopping;

Justification

A prohibition of pornography shall not mean that all erotic movies and depictions are no longer allowed, but that those depictions which are used to incite hatred based on sex are forbidden. Based on the revised European Convention on Transfrontier Television of the Council of Europe, in particular its Article 7, pornography must be added to the list of banned audiovisual commercial communications in point (d). Article 7 of the Convention states that: “All items of programme services, as concerns their presentation and content, shall respect the dignity of the human being and the fundamental rights of others. In particular, they shall not: a) be indecent and in particular contain pornography; b) give undue prominence to violence or be likely to incite to racial hatred

(ea) audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the provider of audiovisual services falls shall be prohibited.

(f) audiovisual commercial communications must not cause moral or physical detriment to minors. Therefore they shall not directly exhort minors to buy a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.

(f) audiovisual commercial communications must not cause moral or physical detriment to minors. Therefore they shall not exhort minors to buy a product or service, encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons or show minors in dangerous situations.

(fa) Audiovisual media services directed at children may not contain any form of audiovisual commercial communications or teleshopping for food or drink in accordance with the principles laid down in the Health Claims Regulation.

Justification

Obesity is growing alarmingly in Europe. The increase in child obesity is particularly worrying. There is scientific evidence that shows that the promotion of unhealthy foods to children over audiovisual media services is decisive in children's diet choices. There fore there should be no advertising of such food at least before, during and after children's programmes.

1. Audiovisual media services that are sponsored or that contain product placement shall meet the following requirements.

1. Audiovisual media services or programmes that are sponsored shall meet the following requirements:

Justification

The Commission proposal deals with sponsoring and product placement together in Article 3h. Your rapporteur considers this inappropriate, since sponsoring retains the separation of advertising and editorial content, while in the case of product placement that fundamental separation is removed. Accordingly, Article 3h as amended includes only the provisions on sponsoring. The new Article 3i contains the provisions on product placement.

(a) the scheduling, where appropriate, and the content of such audiovisual media services may in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;

(a) their content and, in the case of television broadcasting, their scheduling, may in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;

(c) viewers must be clearly informed of the existence of a sponsorship agreement and/or the existence of product placement. Sponsored programmes must be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in a appropriate way for programmes at the beginning, during and/or the end of the programmes. Programmes containing product placement must be appropriately identified at the start of the programme in order to avoid any confusion on the part of the viewer.

(c) viewers must be clearly informed of the existence of a sponsorship agreement. Sponsored programmes must be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in an appropriate way for programmes at the beginning, during and/or the end of the programmes.

Justification

The reference to sponsoring should be permitted only at the beginning and end of the programme, in order to prevent the insertion of advertising.

2. Audiovisual media services must not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products. Further, audiovisual media services must not contain placement of tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.

2. Audiovisual media services or programmes must not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.

3. The sponsorship of audiovisual media services by undertakings whose activities include the manufacture or sale of medicinal products and medical treatment may promote the name or the image of the undertaking but may not promote specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.

3. The sponsorship of audiovisual media services or programmes by undertakings whose activities include the manufacture or sale of medicinal products and medical treatment may promote the name or the image of the undertaking but may not promote specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.

4. News and current affairs shall not be sponsored and shall not contain product placement. Audiovisual media services for children and documentaries may not contain product placement.

4. News and current affairs programmes shall not be sponsored.

"Article 3ha

1. Product placement shall be prohibited. In particular news and current affairs programmes, children's programmes, documentaries and programmes of advice may not contain product placement.

Product integration and thematic placement shall be prohibited in principle.

2. By way of derogation from paragraph 1, Member States may choose to expressly permit product placement

- in cinematographic works, films and series made for television and sports broadcasts; or

- in cases of production aid where no payment is made but certain goods or services are merely provided free of charge with a view to their inclusion in a programme.

The programmes containing product placement shall meet all of the following requirements:

(a) [their content and, in the case of television broadcasting, their scheduling, shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;

(b) they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;

(c) they shall not give undue prominence to the product in question;

(d) viewers shall be clearly informed of the existence of product placement. Programmes containing product placement shall be appropriately identified at the start and the end of the programme and by a signal a least every 20 minutes during the programme in order to avoid any confusion on the part of the viewer.

3. In any event programmes shall not contain product placement for:

- tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products; or

- specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.

4. The provisions of paragraphs 1, 2 and 3 shall apply only to programmes produced after the date by which this Directive is required to be brought into force by the Member States.

"Article 3hb

1. The proportion of short forms of advertising such as advertising spots and teleshopping spots within a given clock hour shall not exceed 20%.

2. Paragraph 1 shall not apply to announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes or to sponsorship announcements."

Justification

In order not to disturb viewers' viewing, linear and non-linear services should at least be subject to an hourly limit on advertising time. It is therefore necessary to insert a new Article 3ha, reproducing the provisions of the new Article 18(2), so that those provisions appear among the common provisions.

“Article 3hc

1. The Member States shall take appropriate measures to ensure that audio-visual media services under their jurisdiction are gradually made accessible to people with a visual or hearing disability.

2. No later than the end of the third year after the adoption of this Directive, the Member States shall submit a national report to the Commission every two years on the application of this Article. The report shall include, in particular, statistics on the progress made towards achieving the goal of accessibility, as described in paragraph 1. It shall describe any obstacles and describe the measures needed to overcome them.”

“Article 3hd

1. Without prejudice to other provisions adopted by the Member States under civil, administrative or criminal law, any natural or legal person, regardless of nationality, whose legitimate interests, in particular but not limited to reputation and good name, have been affected by an assertion of facts in a transmission shall have a right of reply or equivalent remedies.

2. A right of reply or equivalent remedies shall exist in relation to all broadcasters under the jurisdiction of a Member State.

3. Member States shall adopt the measures needed to establish the right of reply or equivalent remedies and shall determine the procedure to be followed for the exercise thereof. In particular, they shall ensure that a sufficient period of time is allowed and that the procedures are such that the right or equivalent remedies may be exercised appropriately by natural or legal persons resident or established in other Member States.

4. An application for exercise of the right of reply or the equivalent remedies may be rejected when it is not justified having regard to the conditions set out in paragraph 1, if it involves a punishable act, if its broadcasting involves the civil liability of the audiovisual media service provider or if it contravenes standards of public decency.

5. Member States shall ensure that disputes concerning the exercise of the right of reply or equivalent remedies are subject to judicial review.

6. The right of reply shall be without prejudice to other means of redress available to persons whose rights to dignity, honour, sound reputation or private life have not been respected by the media.”

Justification

The right of reply must apply to all audiovisual media services and not just to linear services.

(aa) In paragraph 1, the following point (d) is added:

“(d) in defining the term 'independent producer’, the Member States shall take appropriate account of the following three criteria:

ownership and proprietary rights of the production firm; number of programmes provided to the same broadcaster, and ownership of secondary rights’’

(1) Television advertising and teleshopping shall be readily recognizable and kept quite separate from other parts of the programme service by optical and/or acoustic means.

(1) Television advertising and teleshopping shall be readily recognizable and distinguishable from editorial content. Without prejudice to the use of new advertising techniques, television advertising and teleshopping shall be kept quite distinct from other parts of the programme service by optical and/or acoustic and/or spatial means.

(2) Isolated advertising and teleshopping spots, other than in sports programmes, shall remain the exception.

deleted

Justification

Isolated advertising does not interrupt programmes and furthermore viewers prefer it to lengthy advertising breaks.

(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.

(1) Advertising and teleshopping spots shall be inserted only between programmes. Under the conditions laid down in paragraph 2, advertising and teleshopping spots may also be inserted during programmes, in a manner which does not jeopardise their integrity, taking into account natural interruptions in the programme, in such a way that the rights of the right holders are not prejudiced.

Justification

The substantial relaxation proposed by the Commission in Article 11 would seriously jeopardise the balance currently in place between the need for programme funding, ease of viewing, programme quality and respect for works. However, it seems fair to allow broadcasters greater flexibility as regards the insertion of advertising spots in their programmes.

Consequently, in line with the principle of separating advertising from the rest of the programme, the equally fundamental principle of inserting advertising between programmes must be made explicit. The proposal thus aims to maintain the essence of the current Article 11(1), in particular by preserving the criterion of ‘natural programme interruptions’, which makes it possible to prevent sudden or untimely interruptions.

Article 11(2) represents a compromise between the need to preserve the quality and integrity of all programmes – in particular, series, serials, light entertainment programmes and documentaries – and the legitimacy of offering broadcasters more flexibility by replacing the 20 minute rule with three interruptions per clock hour.

Article 11(3) seeks to provide a framework for the retransmission of sports events, whose unpredictable nature justifies special arrangements so as not to deprive viewers of phases of play.

2. The transmission of films made for television (excluding series, serials, light entertainment programmes and documentaries), cinematographic works, children’s programmes and news programmes may be interrupted by advertising and/or teleshopping once for each period of 35 minutes.

2. The transmission of films made for television (excluding series, serials, light entertainment programmes and documentaries), cinematographic works, concerts, theatre plays and operas may be interrupted by advertising and/or teleshopping once for each period of 45 minutes.

Children's programmes and news programmes, provided that their scheduled duration exceeds 30 minutes, may be interrupted by advertising and/or teleshopping once for each period of 30 minutes.

Justification

Better balance between the protection of certain programmes and improving the return on audiovisual works.

2. Paragraph 1 does not apply to announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes, sponsorship announcements and product placement.

2. Paragraph 1 does not apply to announcements made by the broadcaster advertising its own programmes and teleshopping.

Justification

Leaving loopholes allowing broadcasters to advertise products derived from their own programmes, as well as sponsorship announcements and product placement considerably weakens the restrictions introduced and could offer an easy means of side-stepping them.

The provisions of this Directive shall apply mutatis mutandis to television broadcasts exclusively devoted to advertising and teleshopping as well as to television broadcasts exclusively devoted to self-promotion. Chapter 3 as well as Article 11 (rules on insertion) and Article 18 (duration of advertising and teleshopping) do not apply to these broadcasts.

The provisions of this Directive shall apply mutatis mutandis to television broadcasts exclusively devoted to advertising and teleshopping as well as to television broadcasts exclusively devoted to self-promotion, which shall be readily recognisable as such by optical and/or acoustic means. Chapter 3 as well as Article 11 (rules on insertion) and Article 18 (duration of advertising and teleshopping) do not apply to these broadcasts.

Justification

Advertising, teleshopping, and self-promotion in television broadcasts exclusively devoted to these purposes should explicitly be signalled as such, as well. The consumer should be aware of the advertising content of the services provided.

Without prejudice to Article 3, Member States may, with due regard for Community law, lay down conditions other than those laid down in Article 11(2) and Article 18 in respect of broadcasts intended solely for the national territory which cannot be received, directly or indirectly by the public, in one or more other Member States and in respect of broadcasts having no significant impact in terms of audience share.

Without prejudice to Article 3, Member States may, with due regard for Community law, lay down conditions other than those laid down in Article 11(2) and Article 18 in respect of television broadcasts intended solely for the national territory which cannot be received, directly or indirectly by the public, in one or more other Member States.

Justification

In order to guarantee legal certainty, the term "broadcasts" should be replaced with "television broadcasts", and the reference to broadcasts having no significant impact in terms of audience share should be deleted.

(17a) Article 22(1) is replaced by the following:

“1. The Member States shall take appropriate measures to ensure that programmes broadcast by media service providers under their jurisdiction do not contain anything which might seriously impair the physical, psychological and moral development of minors, particularly programmes showing pornography or senseless violence."

Justification

Clarification in line with the scope of the directive.

Article 22a

(1) Member States shall promote the production and programming of audiovisual media services and programmes which are suitable for minors and intended to improve their knowledge of communications media.

(2) Such measures shall seek to facilitate educational action by parents, teachers and educators to create awareness of the effects of programmes that minors may watch by:

- setting up appropriate rating systems;

- encouraging policies to raise awareness and knowledge of the media, which should include the participation of educational establishments and make it possible to produce European programmes suitable for family viewing or aimed at children and adolescents;

- taking account of experience gained in this field in Europe or elsewhere and of the opinion of interested parties, such as broadcasters, producers, parents, educators, communications experts and associations concerned.

(3) The Member States' respective legislation shall further stipulate that new television sets shall be equipped with technical devices to enable certain programmes to be filtered out.

Justification

The amendment seeks to define more precisely the measures that need to be taken to protect minors and assess the content of audiovisual media services.

The protection extended by the law to minors, to human dignity, to the rights of children and to the rights of parents and the family should be carried into effect by producing and transmitting a sufficient amount of programmes suitable for children, adolescents and family viewing, and by media awareness programmes.

1. Member States shall guarantee the independence of national regulatory authorities and ensure that they exercise their powers impartially and transparently.

1. Member States shall take appropriate measures to establish national regulatory bodies and institutions in accordance with national law, to guarantee their independence, to ensure that women and men are represented equally in them and to ensure that they exercise their powers impartially and transparently.

1a. Member States shall entrust to the national regulatory authorities the task of ensuring that audiovisual media service providers comply with the provisions of this Directive, in particular those relating to freedom of expression, media pluralism, human dignity, the principle of non-discrimination and the protection of minors, the vulnerable and the disabled.

2. National regulatory authorities shall provide each other and the Commission with the information necessary for the application of the provisions of this Directive.

2. National regulatory bodies shall provide each other and the Commission with the information necessary for the application of the provisions of this Directive. National regulatory bodies shall cooperate more closely, particularly in the resolution of problems as referred to in Article 2(7) of this Directive.

Justification

Compliance with the country of origin principle may be promoted by better cooperation between the national regulatory bodies, particularly as regards bilateral problems.

Not later than […], and every two years thereafter, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive as amended 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 and the competitiveness of the sector.

Not later than ...*, and every two years thereafter, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive as amended , including the reports referred to in Article 3f(3) and Article 3k(2) and in particular with regard to the implementation of the measures set out in Article 3f(i) and in Article 3h(b), 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 the promotion of cultural diversity.

* The end of the fifth year after adoption of this Directive.

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...* at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

* Two years after the entry into force of this Directive.

Justification

A deadline for transposition of this Directive has been omitted in the Commission's text. A speedy implementation is desirable in order to ensure a full functioning internal market for audiovisual media services and a level playing field for all media service providers. After two years of its implementation, Member States will need to report to the Commission about their implementing measures for certain provisions of this Directive. Similarly, the Commission will need to report to Council and Parliament about the application of this Directive after three years of its implementation (or five years after its adoption).

(2a) Media freedom and pluralism is a prerequisite for full respect for the right to freedom of expression and information and the case-law of the European Court of Human Rights recognises that States have a duty to protect media pluralism and, where necessary, take the measures required to guarantee it.

Justification

It is essential to insert a recital on media freedom and pluralism based on the positions adopted by the EP in the past (see justification for Amendment 30, Article 23 c (new).

(3) The importance of audiovisual media services for societies, democracy and culture justifies the application of specific rules to these services.

(3) The importance of audiovisual media services for societies, democracy, education and culture justifies the application of specific rules to these services, notably in order to preserve the fundamental rights and freedoms laid down in the Charter of Fundamental Rights of the European Union, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the United Nations Covenant on Civil and Political Rights, and in order to ensure the protection of minors and the vulnerable and disabled.

(5) Legal uncertainty and a non-level playing field exist for European companies delivering audiovisual media services as regards the legal regime governing emerging on-demand services, it is therefore necessary, both to avoid distortions of competition and to improve legal certainty, to apply at least a basic tier of coordinated rules to all audiovisual media services.

(5) Legal uncertainty and a non-level playing field exist for European companies delivering audiovisual media services as regards the legal regime governing emerging on-demand services, it is therefore necessary, both to avoid distortions of competition and to improve legal certainty, to apply to all audiovisual media services at least a basic tier of coordinated rules aimed at guaranteeing, inter alia, a sufficient level of protection of minors and the vulnerable and disabled and respect for fundamental rights and freedoms.

(9) This Directive enhances compliance with fundamental rights and is fully in line with the principles recognised by the Charter of Fundamental Rights of the European Union, in particular Article 11 thereof. In this regard, this Directive does not in any way prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media.

(9) This Directive enhances compliance with fundamental rights and seeks to incorporate the principles, rights and freedoms laid down in the Charter of Fundamental Rights of the European Union, in particular Article 11 thereof. In this context, Member States should set up one or more independent regulatory authorities, if they have not already done so. Such authorities should act as the guarantors of fundamental rights in the provision of audiovisual media services. Member States may decide whether it is appropriate to have a single regulatory authority for all audiovisual media services or several separate authorities for each category of service (linear or non-linear). Furthermore, this Directive does not in any way prevent Member States from applying their constitutional rules or regulatory arrangements relating to freedom of the press and freedom of expression in the media.

(10) Because of the introduction of a minimum set of harmonised obligations in Articles 3c to 3h and in the areas harmonised in this Directive Member States can no longer derogate from the country of origin principle with regard to protection of minors and fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violation of human dignity concerning individual persons or protection of consumers as provided in Article 3(4) of Directive 2000/31/EC of the European Parliament and of the Council.

(10) The provisions of Articles 3c to 3j of this Directive constitute a harmonised set of rules which are binding on Member States, and which therefore may not, in particular for non-linear services, derogate from the country of origin principle as regards the protection of minors, respect for human dignity, the combating of discrimination and incitement to hatred on grounds of race, sex, religion, sexual orientation, ethnic origin or nationality, protection of the vulnerable and disabled or protection of consumers as provided in Article 3(4) of Directive 2000/31/EC of the European Parliament and of the Council.

(24) Under this Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict the freedom of movement of television broadcasting, but only under certain conditions listed in Article 2a of this Directive and following the procedure laid down in this Directive. However, the European Court of Justice has consistently held that any restriction of the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively

(24) Under this Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict the freedom of movement of television broadcasting, but only under certain conditions listed in Article 2a of this Directive and following the procedure laid down in this Directive. However, the European Court of Justice has consistently held that any restriction of the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively, with particular reference to the protection of minors and health and that ex ante control of ideas or opinions may not be permitted under any circumstances.

Justification

The European Court of Justice's judgments on the matter have advised extreme caution in interpreting any limitation of fundamental principles.

(25) In its Communication to the Council and the European Parliament on Better Regulation for Growth and Jobs in the European Union1 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 or self regulation should be considered. For co-regulation and self-regulation, the Interinstitutional Agreement on Better Law-making2 provides agreed definitions, criteria and procedures. 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.

(25) In the Interinstitutional Agreement on 'Better Lawmaking' of 31 December 2003 between the Commission, the Council and the European Parliament, the use of co-regulation is recommended, inter alia, where the European legislative authorities set the basic objectives and leave it to co-regulation, or self-regulation, to establish the resources enabling those objectives to be achieved. Co-regulation means a mechanism whereby a Community legislative act entrusts the attainment of the objectives defined by the legislative authority to players which are recognised in the field, such as economic operators, social partners, non-governmental organisations, or associations. Self-regulation, which consists of the drawing-up, at the sole initiative of economic operators and without State intervention, of codes of conduct, filtering software, labels or other devices, cannot on its own ensure respect for the principles laid down in this Directive, including those dealing with the protection of fundamental rights and freedoms.

_____

1. COM(2005)0097.

2. OJ C 321, 31.12.2003, p. 1.

Justification

While it is important to provide broad scope to co-regulation, as recommended in the interinstitutional agreement, self regulation should not take precedence in the area of the protection of fundamental rights and the rights of minors.

(26) Entertainment rights for events of public interest may be acquired by broadcasters on an exclusive basis. However, it is essential to promote pluralism through the diversity of news production and programming across the European Union and to respect the principles recognised by Article 11 of the Charter of Fundamental Rights of the European Union.

(26) Entertainment rights for events of public interest may be acquired by broadcasters on an exclusive basis. However, it remains essential to promote free access to information and media pluralism through the diversity of news production and programming across the European Union and to respect the principles recognised by Article 11 of the Charter of Fundamental Rights of the European Union.

(28) Non-linear services are different from linear services with regard to choice and control the user can exercise and with regard to the impact they have on society. This justifies imposing lighter regulation on non-linear services, which only have to comply with the basic rules provided for in Articles 3c to 3h.

(28) Non-linear services are distinct from linear services regarding the choice which the user is afforded and can exercise and with regard to the impact they have on society. This justifies imposing more flexible regulation on non-linear services. It is therefore important for Member States to ensure that providers of non-linear services undertake to ensure respect for fundamental rights and freedoms, notably with regard to the protection of minors and the vulnerable and disabled, respect for human dignity and non-discrimination. These principles constitute the Union's values and are set out in the Charter of Fundamental Rights of the European Union and in the European Convention for the Protection of Human Rights and Fundamental Freedoms, which the Member States have undertaken to respect.

(30) In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market. Where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as audiovisual media services are concerned, the Directive must ensure a high level of protection of objectives of general interest, in particular the protection of minors and human dignity.

(30) In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objectives of the proper functioning of the internal market and respect for the rights, values and freedoms on which the European Union is founded. Where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as audiovisual media services are concerned, the Directive must ensure a high level of protection of fundamental rights and freedoms and objectives of general interest, in particular the protection of minors, the vulnerable and disabled, human dignity, consumers and public health.

(31) Harmful content and conduct in audiovisual media services continue to be a concern for law-makers, industry and parents. There will also be new challenges, especially in connection with new platforms and new products. It is therefore necessary to introduce rules to protect the physical, mental and moral development of minors as well as human dignity in all audiovisual media services and in audiovisual commercial communication.

(31) Harmful content and conduct in audiovisual media services continue to be a concern for law-makers, industry, parents and non-governmental organisations working to protect minors and the vulnerable and disabled. There will also be new challenges, especially in connection with new platforms and new products. It is therefore necessary to introduce rules to protect the physical, mental and moral development of minors and the vulnerable and disabled, as well as human dignity in all audiovisual media services and in audiovisual commercial communication.

(32) Measures taken to protect minors and human dignity must be carefully balanced with the fundamental right to freedom of expression as laid down in the Charter on Fundamental Rights of the European Union. The aim of these measures should thus be to ensure an adequate level of protection of minors especially with regard to non-linear services, but not to ban adult content as such.

(32) The fundamental right to freedom of expression enshrined in the Charter of Fundamental Rights of the European Union and in the European Convention for the Protection of Human Rights and Fundamental Freedoms is not unrestricted as regards respect for human dignity and the protection of minors. The aim should therefore be to achieve a balance, including for non-linear services, by guaranteeing, inter alia, the protection of minors, but not to ban adult content as such.

(32a) Minors and the vulnerable and disabled, including the mentally disabled, may be particularly undermined and psychically or psychologically upset and disturbed by programmes comprising scenes of verbal, physical or moral violence or by scenes that offend against human dignity, or incite racial hatred or any other form of discrimination. Insofar as one of the objectives of this Directive is to protect such persons in general, Member States are strongly encouraged to remind audiovisual media service providers of this overriding need and to require them to clearly indicate the particular nature of such programmes prior to their broadcasting.

Justification

The protection of minors and the vulnerable and disabled must remain one of the main focuses of concern for both European and national law-makers. It must also be the concern of audiovisual media service providers, whose duty it is to forewarn the users of their services of the harmful effect that certain scenes or programmes might have on vulnerable members of the public. There is clear scope for self regulation and co-regulation in this area.

(35) Non-linear audiovisual media services have the potential to partially replace linear services. Accordingly, they should where practicable promote the production and distribution of European works and thus actively contribute to the promotion of cultural diversity. It will be important to regularly re-examine the application of the provisions relating to the promotion of European works by audiovisual media services. Within the framework of the reports set out in Article 3f paragraph 3, Member States shall also take into account notably the financial contribution by such services to the production and rights acquisition of European works; the share of European works in the catalogue of audiovisual media services as well as in the effective users’ consumption of European works proposed by such services.

(35) Non-linear audiovisual media services have the potential to partially replace linear services. Accordingly, they should where practicable promote the production and distribution of European works and thus actively contribute to the promotion of cultural diversity. In line with this objective, attention should be paid to all audiovisual co-productions and productions from third countries involved in the European Neighbourhood Policy, so as to encourage cultural exchanges and mutual understanding. It will be important to regularly re-examine the application of the provisions relating to the promotion of European works by audiovisual media services. Within the framework of the reports set out in Article 3f paragraph 3, Member States shall also take into account notably the financial contribution by such services to the production and rights acquisition of European works; the share of European works in the catalogue of audiovisual media services as well as in the effective users’ consumption of European works proposed by such services.

(36) When implementing the provisions of Article 4 of Directive 89/552/EEC as amended, Member States should make provision for broadcasters to include an adequate share of co-produced European works or of European works of non-domestic origin.

(36) When implementing the provisions of Article 4 of Directive 89/552/EEC as amended, Member States should make provision for audiovisual media services to include an adequate share of co-produced European works or of European works of non-domestic origin.

Justification

In the area of the promotion of European audiovisual productions, the providers of non-linear services should be subject to requirements equivalent to those imposed on the providers of linear services, for equivalent contents.

(38a) The right of reply is a particularly appropriate remedy in the on-line environment because it allows for the instant correction of contested information. However, that right should be within a reasonable time subsequent to the request being substantiated, and at an appropriate time and manner in relation to the programme to which the request refers. The reply should, in particular, be awarded the same importance as that given to the disputed information so that it reaches the same public with the same impact.

(40) Commercial and technological developments give users increased choice and responsibility in their use of audiovisual media services. To remain proportionate with the goals of general interest, regulation must allow a certain degree of flexibility with regard to linear audiovisual media services: the separation principle should be limited to advertising and teleshopping, product placement should be allowed under certain circumstances and some quantitative restrictions should be abolished. However, where product placement is surreptitious, it should be prohibited. The separation principle should not prevent the use of new advertising techniques.

(40) Commercial and technological developments give users increased choice and responsibility in their use of audiovisual media services. To remain proportionate with the goals of general interest, regulation must allow a certain degree of flexibility with regard to linear audiovisual media services: the separation principle should be limited to advertising and teleshopping, product placement should be allowed under certain circumstances, provided that the user is very clearly informed of it, and some quantitative restrictions should be abolished. However, where product placement is surreptitious, it should be prohibited. The separation principle should not prevent the use of new advertising techniques

(42) As the increase in the number of new services has led to a greater choice for viewers, detailed regulation with regard to the insertion of spot advertising with the aim of protecting viewers is no longer justified. While the Directive does not increase the hourly amount of admissible advertising, it gives flexibility to broadcasters with regard to its insertion where this does not unduly impede the integrity of programmes.

(42) As the increase in the number of new services, both linear and non-linear, has led to a greater choice for viewers, detailed regulation with regard to the insertion of spot advertising with the aim of protecting viewers is no longer justified. While the Directive does not increase the hourly amount of admissible advertising, it gives flexibility to broadcasters with regard to its insertion where this does not unduly impede the integrity of programmes.

Justification

This clarification is needed to avoid the interpretation that only non-linear services are referred to.

(43a) Certain categories of programmes, such as those for minors, should be adequately protected by means of appropriate information on the content or effective filtering systems.

Justification

The directive should be able to guard against the use of audiovisual systems by children and young people by giving accurate information about programmes so as to guide parents in their choices, or by suitable filtering systems to allow proper protection of minors even in the absence of parental control.

(45) Surreptitious advertising is a practice prohibited by this Directive because of its negative effect on consumers. The prohibition of surreptitious advertising does not cover legitimate product placement within the framework of this Directive.

deleted

(47) Regulators should be independent from national governments as well as from audiovisual media service providers in order to be able to carry out their work impartially and transparently and to contribute to pluralism. Close cooperation among national regulatory authorities and the Commission is necessary to ensure the correct application of this Directive,

(47) Regulators, whose very existence and role are essential in the increasingly complex world of audiovisual media services, should be independent from national governments as well as from audiovisual media service providers in order to be able to carry out their work impartially and transparently and to contribute to respect for freedom of expression and for pluralism. Furthermore, regulators should ensure that human dignity, minors and the vulnerable and disabled are protected, that all forms of discrimination are fought and, more generally, that fundamental rights and freedoms are promoted. Close cooperation among national regulatory authorities and the Commission is necessary to ensure the correct application of this Directive,

(47) Regulators should be independent from national governments as well as from audiovisual media service providers in order to be able to carry out their work impartially and transparently and to contribute to pluralism. Close cooperation among national regulatory authorities and the Commission is necessary to ensure the correct application of this Directive,

(47) Regulators should be independent from national governments as well as from audiovisual media service providers in order to be able to carry out their work impartially and transparently and to contribute to pluralism. Their powers over content should be limited to the areas and principles referred to in this Directive: in no circumstances should they exercise any type of control over the veracity of information. Close cooperation among national regulatory authorities and the Commission is necessary to ensure the correct application of this Directive,

Justification

Under no circumstances is the protection of fundamental rights a matter for the regulatory authorities: this is the preserve of the judges and the courts. To permit a regulatory authority to decide if a given piece of information is true or false would amount to prior censorship and would be an attack on freedom. Parliament has received numerous complaints from citizens about this.

(47a) The right of disabled and elderly persons to participate in social and cultural life in the community deriving from Articles 25 and 26 of the Charter of Fundamental Rights is indivisible from the provision of accessible audiovisual media services. Accessibility of audiovisual media services includes but is not limited to sign language, subtitling, audio description, audio subtitling and easy-to-understand screen menus,

Justification

In line with the Commission's commitment to mainstream disability in all Community policies, it is vital to make an explicit reference to the provisions of the Charter dealing with persons with disabilities and older persons. Moreover, a non-exhaustive list of accessibility features necessary to respect the provisions of the Charter is proposed. Guidelines explaining the term 'accessibility' in the context of audiovisual services should be given in the text of the Directive or, as proposed below, in the Annex to the Directive.

(c)‘television broadcasting’ or ‘television broadcast’ mean a linear audiovisual media service where a media service provider decides upon the moment in time when a specific programme is transmitted and establishes the programme schedule;

(c) 'linear services', including 'television broadcasting' or 'television broadcast', mean audiovisual media services where a media service provider decides upon the moment in time when a specific programme is transmitted on the basis of a fixed programme schedule that he has established;

Justification

This amendment seeks to clarify the definition of 'linear services'.

(e) ‘non-linear service’ means an 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;

(e) ‘non-linear service’ means an audiovisual media service where the user individually requests the transmission of a specific programme on the basis of a broad range of content selected by the media service provider;

(ka) 'media audience and broadcast rating' means an estimate of the audience for a television broadcast.

(kb) 'broadcast ratings body' means any natural or legal person responsible for organising or conducting surveys for the purposes of media audience and broadcast ratings.

Justification

For the purposes of the directive, it is essential to insert definitions of audience rating and ratings body (see amendment to Article 20a (new), Amendment 25).

(aa) The following paragraph 1 a is inserted in Article 2:

"1a. Member States and the Commission shall, without prejudice to their respective powers, guarantee the pluralism, freedom and independence of audiovisual media services."

1. Member States shall ensure that, for the purposes of short news reports, broadcasters established in other Member States are not deprived of access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted by a broadcaster under their jurisdiction.

1. In line with the principle of freedom of access to information, set out in Article 11 of the Charter of Fundamental Rights, Member States shall ensure that, for the purposes of short news reports, broadcasters established in other Member States and intermediaries, where they are acting on behalf of broadcasters, are not deprived of access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted by a broadcaster under their jurisdiction.

Justification

An inconsistency should be pointed out between recital 27 and Article 3b, as regards the right of intermediaries, such as press agencies, to benefit from access to the signal. In order to avoid confusion, the Article should specify that intermediaries, where acting on behalf of broadcasters, have rights of access to the signal.

1a. Member States may propose that some events which are regarded as being of major importance for society but which are not included in the list referred to in Article 3 not be broadcast on an exclusive basis by broadcasters under their jurisdiction owing to their major importance or unforeseeability or for reasons of time. Such requests shall be subject to an accelerated verification procedure based on that laid down in Article 3(b), paragraph 3a(2).

2. Short news reports may be chosen freely by the broadcasters from the transmitting broadcaster’s signal with at least the identification of their source.

2. Short news reports may be chosen freely and transmitted by the broadcasters from the transmitting broadcaster’s signal provided that the source is identified.

(aa) its corporate form;

(ab) its capital;

(ac) the name of its legal representative; legal

(ad) the name of the editor responsible for content if other than the legal representative;

In order to render the information in paragraph 1 more accessible, Member States shall create national public registries of audiovisual media services in which all providers of such services whose place of establishment is within the territory of a Member State shall register and provide the information referred to in the first paragraph.

Member States shall take appropriate measures to ensure that audiovisual media services under their jurisdiction are not made available in such a way that might seriously impair the physical, mental or moral development of minors.

Audiovisual programmes or services which may seriously impair the physical, mental or moral development of minors shall be prohibited.

Member States shall take appropriate measures to ensure that audiovisual media services under their jurisdiction are not made available in such a way that might seriously impair the physical, mental or moral development of minors.

Member States shall take appropriate measures to ensure that audiovisual media services under their jurisdiction are not made available in such a way that might seriously impair the dignity of and respect for the individual, or the physical, mental or moral development of minors, the vulnerable or the disabled.

Member States shall ensure that audiovisual media service providers under their jurisdiction provide filtering systems for content that is damaging to the physical, mental or moral development of minors and inform users of their existence.

The Commission and Member States shall encourage audiovisual media service providers, the regulatory authorities and all the parties concerned, to consider the technical and legal feasibility of developing a harmonised system of content symbols promoting better filtering and classification at source, regardless of the platform used, with a view to enabling greater protection of minors.

Member States shall adopt appropriate measures to ensure that the prohibition laid down in the first paragraph is enforced.

Member States shall ensure that audiovisual media service providers under their jurisdiction do not in any circumstances broadcast any child pornography under penalty of administrative and penal sanctions.

Justification

Against the background of what is occurring in many Member States with the disappearance and murder of children, offences relating to paedophilia, the distribution of pornographic material, Internet sites that encourage the exploitation of children and a growth in violence against women, it is increasingly urgent to intervene clearly and decisively against a social evil that particularly affects innocent and vulnerable age groups.

Member States shall ask audiovisual media service providers under their jurisdiction to promote information campaigns to prevent violence against women and minors, where possible in collaboration with public and private associations and entities involved in this field.

Justification

Against the background of what is occurring in many Member States with the disappearance and murder of children, offences relating to paedophilia, the distribution of pornographic material, Internet sites that encourage the exploitation of children and a growth in violence against women, it is increasingly urgent to intervene clearly and decisively against a social evil that particularly affects innocent and vulnerable age groups.

Member States shall ensure by appropriate means that audiovisual media services and audiovisual commercial communications provided by providers under their jurisdiction do not contain any incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.

Member States shall ensure by appropriate means that audiovisual media services and audiovisual commercial communications provided by providers under their jurisdictions do not contain any discrimination or incitement to hatred based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation, and guarantee respect for human dignity and integrity.

1. Member States shall ensure that media service providers under their jurisdiction promote, where practicable and by appropriate means, production of and access to European works within the meaning of Article 6.

1. Member States shall ensure that media service providers under their jurisdiction promote, where practicable and by appropriate means, production of and access to European works within the meaning of Article 6. In the case of non-linear services, this promotion may, inter alia, take the following forms: minimum investment in European productions as a proportion of turnover, minimum proportion of European productions in 'on demand' video listings and attractive presentation of European productions in electronic programme guides.

Justification

The proposed addition lists the main types of measures that Member States might take to achieve the first-phase objective. It therefore promotes implementation of the objective, while maintaining the flexibility needed in that implementation ('where practicable and by appropriate means'); non-exhaustive and non binding list of measures.

4. The Commission shall, on the basis of the information provided by Member States, report to the European Parliament and the Council on the application of paragraph 1, taking into account the market and technological developments.

4. The Commission shall, on the basis of the information provided by Member States and an independent study, report every two years to the European Parliament and the Council on the application of paragraph 1, taking into account the market and technological developments and the objective of cultural diversity.

4a. By the end of the fifth year after adoption of this Directive, the Council shall review the implementation of this Article on the basis of a report by the Commission which shall, if appropriate, include proposals for adjustments to take into account the market and technological development and the objective of cultural diversity and an independent study on the impact of the measures taken pursuant to paragraph 1.

Justification

It is essential to ensure the effective implementation of this Article, and to that end to put in place a mechanism for the review of the Article based on the arrangements currently in force for television broadcasting services, as defined in Articles 4(4) and 25a of the Television with Frontiers Directive.

Member States shall ensure that audiovisual commercial communications provided by providers under their jurisdiction comply with the following requirements:

Member States shall ensure that audiovisual commercial communications provided by providers under their jurisdiction comply with the principles laid down in the Charter of Fundamental Rights and in particular the following requirements:

(a) audiovisual commercial communications must be clearly identifiable as such. Surreptitious audiovisual commercial communication shall be prohibited;

(a) audiovisual commercial communications must not

(i) include any discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age, sexual orientation or nationality;

(ia) undermine of the dignity of and respect for the individual;

(ii) be offensive to religious or political beliefs;

(iii) encourage behaviour prejudicial to health or to safety;

(iv) encourage behaviour prejudicial to the protection of the environment.

(b) audiovisual commercial communications must not use subliminal techniques;

(b) audiovisual commercial communications must be clearly identifiable as such. Surreptitious audiovisual commercial communication shall be prohibited;

(c) audiovisual commercial communications must not:

(c) audiovisual commercial communications must not use subliminal techniques:

(i) include any discrimination on grounds of race, sex, or nationality;

(ii) be offensive to religious or political beliefs;

(iii) encourage behaviour prejudicial to health or to safety;

(iv) encourage behaviour prejudicial to the protection of the environment.

(f) audiovisual commercial communications must not cause moral or physical detriment to minors. Therefore they shall not directly exhort minors to buy a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.

(f) audiovisual commercial communications must not cause moral or physical detriment to minors or seek to exploit their susceptibility or that of the vulnerable or disabled. Therefore they shall not directly exhort minors to buy a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations, unless this can be justified on educational or training grounds.

2. Audiovisual media services must not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products. Further, audiovisual media services must not contain placement of tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.

2. Audiovisual media services must not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products. Further, they must not contain placement of tobacco products or cigarettes or product placement from undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products.

4. News and current affairs shall not be sponsored and not contain product placement. Audiovisual media services for children and documentaries may not contain product placement.

4. News and current affairs shall not be sponsored and not contain product placement. Audiovisual media services and programmes for children and documentaries may not contain product placement.

Article 3 ha

1. Member States shall take all appropriate measures, however general or specific, to gradually ensure that audiovisual media services under their jurisdiction become fully accessible for people with disabilities.

2. From (day) (month) (year), the Member States shall provide the Commission every two years with national reports on the implementation of this Article.

That report shall in particular include a statistical statement on the progress made with the view to achieving accessibility within the meaning of paragraph 1, the reasons for any failure to achieve progress and the measures adopted or envisaged in order to achieve it.

The Commission shall ensure the application of this Article in accordance with the provisions of the Treaty.

Justification

The new article adds an obligation for Member States to take all appropriate measures to ensure accessibility of digital TV for disabled people and to report on the steps taken to ensure accessibility.

The reporters should at least include: TV accessibility statistical data, targets; progress report, how disabled users have been consulted.

An Annex to the Directive, explaining 'accessibility' and measures that may need to be taken to achieve it should be added with "Digital TV Equipment: Vulnerable Consumer Requirements" published by the UK in March 2006 used as a reference.

Article 3 hb

1. Without prejudice to other provisions adopted by the Member States under civil, administrative or criminal law, any natural or legal person, regardless of nationality, whose legitimate interests, in particular, but not limited to, reputation and good name, have been affected by an assertion of facts in a transmission shall have a right of reply or equivalent remedies.

Member States shall ensure that the actual exercise of the right of reply or equivalent remedies is not hindered by the imposition of unreasonable terms or conditions. The reply shall be given within a reasonable time subsequent to the request being substantiated and at a time and in a manner appropriate to the transmission to which the request refers.

2. A right of reply or equivalent remedies shall exist in relation to all broadcasters under the jurisdiction of a Member State.

3. Member States shall adopt the measures needed to establish the right of reply or the equivalent remedies and shall determine the procedure to be followed for the exercise thereof. In particular, they shall ensure that a sufficient time span is allowed and that the procedures are such that the right or equivalent remedies may be exercised appropriately by natural or legal persons resident or established in other Member States.

4. An application for exercise of the right of reply or the equivalent remedies may be rejected when it is not justified having regard to the conditions set out in paragraph 1, if it involves a punishable act, if its broadcasting involves the civil liability of the audiovisual media service provider or if it contravenes standards of public decency.

5. Member States shall ensure that disputes concerning the exercise of the right of reply or the equivalent remedies may be subject to judicial review.

6. The right of reply shall be without prejudice to other means of recourse available to persons whose rights to dignity, honour, sound reputation or a private life have not been respected by the media.

Justification

The right of reply must apply to all audiovisual media services and not just to linear services.

2. Isolated advertising and teleshopping spots, other than in sports programmes, shall remain the exception.”

2. Isolated advertising and teleshopping spots shall remain the exception.”

(1a) 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 the intervals.

2. The transmission of films made for television (excluding series, serials, light entertainment programmes and documentaries), cinematographic works, children’s programmes and news programmes may be interrupted by advertising and/or teleshopping once for each period of 35 minutes.

2. The transmission of films made for television (excluding series, serials, light entertainment programmes and documentaries), cinematographic works, children’s programmes and news programmes may be interrupted by advertising and/or teleshopping once for each period of 45 minutes. Their transmission may be subject to a further interruption if their programmed duration is at least 20 minutes longer than two or more complete periods of 45 minutes. The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light entertainment programmes and documentaries), provided their duration is more than 45 minutes, may be interrupted once for each complete period of 45 minutes. Their transmission may be subject to a further interruption if their programmed duration is at least 20 minutes longer than two or more complete periods of 45 minutes.

Article 20a

1. In order to safeguard the principles of pluralism, competition and business freedom in advertising revenue, the activity of drawing up viewing shall should meet with the following criteria:

(a) the bodies carrying out surveys on the viewing and broadcasting figures of the various media must be independent of all the entities surveyed;

(b) the representative nature of the management bodies (technical-scientific committees and/or monitoring committees): they must include representatives of all the entities involved and surveyed (operators, market and consumers) and not be confined to the broadcasting platforms;

c) transparency of the technical committees, to which real powers must be assigned as regards the survey, without any interference - either technical or managerial - from the board of directors.

Justification

In view of the importance of compiling viewing figures for the purposes of advertising revenue, there should be uniformity throughout the Union in accordance with the principles of freedom of expression, independence, transparency and representativeness.

(18a) Article 23 is deleted

Justification

The right of reply must apply to all audiovisual media services and not just to linear services.

(19a) Article 23a(1) is replaced by the following:

"1. A contact committee shall be set up under the aegis of the Commission. It shall be composed of representatives of the competent national regulatory authorities referred to in Article 23b. It shall be chaired by a representative of the Commission and meet either on his initiative or at the request of the delegation of a Member State".

1. Member States shall guarantee the independence of national regulatory authorities and ensure that they exercise their powers impartially and transparently.

1. Member States shall ensure that regulatory authorities are created and shall guarantee their independence from political, economic and financial circles, their impartiality, and transparency in their operating methods and decision-making processes.

Member States shall entrust the regulatory authorities with the task of ensuring that audiovisual media service providers conform to the provisions of this Directive, and in particular those relating to freedom of expression, pluralism of the media, human dignity, the principle of non discrimination and the protection of minors, the vulnerable and the disabled.

2. National regulatory authorities shall provide each other and the Commission with the information necessary for the application of the provisions of this Directive.

2. The regulatory authorities shall provide each other and the Commission with the information necessary for the application of the provisions of this Directive, and in the event of serious infringement thereof, shall jointly decide what measures should be taken.

Article 23c

1. The Member States shall adopt the measures needed to ensure pluralism of information in the television broadcasting system. The Member States shall in particular ban the creation and retention of dominant positions on the television market and related markets.

2. The Member States shall endeavour to guarantee respect for the neutrality of the information provided by the public authorities and shall lay down appropriate measures to prevent possible abuses of government positions from influencing the information conveyed via the media.

Justification

Consistent with positions already adopted by the EP (e.g. the resolution adopted on 6 September 2005 on 'Television without frontiers' and the European Parliament's resolution on the risks of violation, in the EU and especially in Italy, of freedom of expression and information (Article 11(2) of the Charter of Fundamental Rights) (2003/2237(INI)) aimed at obliging the Member States to comply with general principles on the safeguarding of pluralism and to ban those holding government office from controlling broadcasting companies.

The existing disparities between national legislations on the subject obviously make the exercise of freedom of establishment and freedom to provide services on Community territory more difficult.

In drawing up these reports, the Commission shall consult not only the national regulatory authorities but also a European platform of consumer associations representing the various categories of users.

Justification

Consumer organisations should play an important role in the drawing up of such reports.

(1a) The revision of Directive 89/552/EEC should aim primarily at accommodating change and enhancing the competitiveness of the audiovisual media service industry in the global marketplace. A more liberal and straightforward regulatory framework will encourage economic growth, job creation and innovation in accordance with the Lisbon Strategy.

(3) The importance of audiovisual media services for societies, democracy and culture justifies the application of specific rules to these services.

(3) The importance of audiovisual media services for societies, democracy and culture justifies the application of limited specific rules to these services but only where these are absolutely essential.

Justification

In order to be competitive, audiovisual media services should not be overburdened with regulation.

(4) Traditional audiovisual media services and emerging on-demand services offer significant employment opportunities in the Community, particularly in small and medium-sized enterprises, and stimulate economic growth and investment.

(4) Traditional audiovisual media services and emerging on-demand services offer significant employment opportunities in the Community, particularly in small and medium-sized enterprises, and stimulate economic growth and investment. Directive 89/552/EEC should not impede the development of new services by restrictive legal provisions.

Justification

The revised directive should encourage rather than hamper the development of new audiovisual services.

(6a) The promotion of the competitiveness of European industry, of which the audiovisual sector forms an important part, is crucial to the attainment of the policy goals of the Lisbon Strategy. In order to strengthen the competitiveness of the audiovisual industrial sector, adequate means of financing should therefore be promoted within an appropriate regulatory framework. It is essential that the audiovisual sector be dynamic and profitable and, to this end, the aim should be to regulate the sector as unintrusively as possible.

Justification

In order to be competitive, audiovisual media services should not be overburdened with regulation.

(13) The definition of audiovisual media services covers all audiovisual mass-media services, whether scheduled or on-demand. However, its 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 non-economic activities, such as purely private websites.

(13) The definition of audiovisual media services covers all audiovisual mass-media services, whether scheduled or on-demand. However, its 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 non-economic activities, such as purely private websites or other content generated by the user that is not usually offered for sale. The economic element must be significant to justify the application of this Directive. Whether or not an activity has the requisite economic significance is to be judged on the basis of the legislation of the Member State in which the media service provider is established.

Justification

It must be made quite clear that this directive applies only to economic activities and does not cover private content or semi-private offers.

The economic element should be of some significance, in order, for example, to exclude websites or blogs that only contain information on the software used. Assessment criteria can be derived from the relevant national law, for example tax or company law.

(14) The definition of audiovisual media services covers mass media in their function to inform, entertain and educate, but excludes any form of private correspondence, such as e-mails sent to a limited number of recipients. The definition also excludes all services not intended for the distribution of audiovisual content, i.e. where any audiovisual content is merely incidental to the service and not its principal purpose. Examples include websites that contain audiovisual elements only in an ancillary manner; such as animated graphical elements, small advertising spots or information related to a product or non-audiovisual service.

(14) The definition of audiovisual media services covers mass media that contribute to forming public opinion in their function to inform, entertain and educate, but excludes any form of private correspondence, such as e-mails sent to a limited number of recipients. The definition also excludes all services not intended for the distribution of audiovisual content, i.e. where any audiovisual content is merely incidental to the service and not its principal purpose. Examples include websites that contain audiovisual elements only in an ancillary manner; such as animated graphical elements, small advertising spots or information related to a product or non-audiovisual service. Also excluded are games of chance with a stake representing a sum of money – including lotteries, betting and online games based on interactive software - provided their main purpose is not to distribute audiovisual content.

Justification

It must be made clear that games of chance and online games based on interactive software do not fall within the scope of the directive. The distribution of audiovisual content is generally merely incidental, so that these areas are not covered by the regulatory purpose of the act.

Furthermore, the gambling sector is a highly sensitive market which requires different legislation for reasons of consumer protection and public safety and order.

(17) The notion of editorial responsibility is essential for defining the role of the media service provider and thereby for the definition of audiovisual media services. This Directive is without prejudice to the liability exemptions established in Directive 2000/31/EC.

(17) The notion of editorial responsibility is essential for defining the role of the media service provider and thereby for the definition of audiovisual media services. Editorial responsibility includes responsibility for choosing and arranging the audiovisual content – whether in regard to individual programme components or to programme schedules – in a professional manner. In the case of television, editorial responsibility applies to drawing up the programme schedule and in the case of on-demand services, to compiling the proposed content. This Directive is without prejudice to the liability exemptions established in Directive 2000/31/EC.

Justification

By defining editorial responsibility it is made clear that simple hosting providers which merely provide the platform for content are not concerned. This criterion also serves to exclude content offered by private individuals on an occasional basis.

(18) In addition to advertising and teleshopping, the wider definition of audiovisual commercial communication is introduced. It comprises moving images with or without sound which accompany audiovisual media services and are designed to promote, directly or indirectly, the goods, services or image or a natural or legal entity pursuing an economic activity and therefore it does not include public service announcements and charity appeals broadcast free of charge.

(18) In addition to advertising and teleshopping, the wider definition of audiovisual commercial communication is introduced. It comprises images with or without sound which form part of or accompany programmes and are designed to promote, directly or indirectly, the goods, services or image or a natural or legal entity pursuing an economic activity and therefore it does not include public service announcements and charity appeals broadcast free of charge.

Justification

It needs to be made clear that, with the authorisation of product placing, audiovisual commercial communication can also be integrated into programmes. In addition, it is hard to see why images covered by the concept of audiovisual commercial communication should be moving images. With greater use of new advertising techniques such as split screen display, one could easily imagine a still picture being inserted.

(19a) To promote a strong, competitive and integrated European audiovisual industry and enhance media pluralism throughout the European Union, it remains essential that only one Member State should have jurisdiction over any audiovisual media service provider.  The criteria of establishment used to determine such jurisdiction should therefore remain as provided in Directive 97/36/EC.

Justification

To strengthen the country of origin principle and specifically to reinforce the current definitions of establishment and jurisdiction which have worked effectively in facilitating trans-frontier European broadcasting to date.

(25) In its Communication to the Council and the European Parliament on Better Regulation for Growth and Jobs 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 or self-regulation should be considered. For co-regulation and self-regulation, the Interinstitutional Agreement on Better Law-making provides agreed definitions, criteria and procedures. 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.

(25) In its Communication to the Council and the European Parliament on Better Regulation for Growth and Jobs 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 or 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. Thus, self- regulation provides a complementary means by which to attain certain objectives of this Directive but cannot completely substitute the obligation of the legislative authorities. Co-regulation provides for the necessary legal link between self-regulation and national legislation and allows for the transposition of directives in line with different legal traditions.

Justification

The definitions of self- and co-regulation in the Inter-institutional Agreement on Better Lawmaking do no recognise many effective existing self-regulatory systems, such as those long established in many Member States for advertising self-regulation. If Member States entrust tasks in achieving the Directive’s objectives to self-regulatory bodies, the entrustment mechanism must be sufficiently clear so as to ensure that regulatory measures may be used in the event of the failure of the self-regulatory measures to achieve the Directive’s objectives.

(25a) Greater use should be made of co- and self-regulation to achieve the aims of this Directive. Experience has shown that these alternative regulatory mechanisms are effective in many cases in different relevant Member States and that they can therefore play an important role, particularly in the area of consumer protection. Co-regulation should be understood as meaning cooperation between State agencies and self-regulation bodies. In the context of such cooperation, the objectives laid down by the legislator are delegated by legislation to recognised players in the sector concerned. This legal link ensures that the national legislator continues to be accountable and may intervene in a regulatory capacity in the event of a failure of self-regulation.

Justification

Increased use of co- and self-regulation is to be welcomed. Nonetheless, ultimate accountability must belong with the State, so that the latter retains a right to intervene should the alternative regulatory procedure fail. At the same time, the Member States should retain a certain measure of flexibility as far as practical arrangements are concerned, so that existing systems that work well do not go to waste.

(27) Therefore, in order to safeguard the fundamental freedom to receive information and to ensure that the interests of viewers in the European Union are fully and properly protected, those exercising exclusive rights concerning an event of public interest should grant other broadcasters and intermediaries, where they are acting on behalf of broadcasters, the right to use short extracts for the purposes of general news programming on fair, reasonable and non-discriminatory terms taking due account of exclusive rights. Such terms should be communicated in a timely manner before the event of public interest takes place to give others sufficient time to exercise such a right. As a general rule, such short extracts should not exceed 90 seconds.

(27) Therefore, in order to safeguard the fundamental freedom to receive information and to ensure that the interests of viewers in the European Union are fully and properly protected, the Member States must ensure that those exercising exclusive rights concerning an event of major public interest should grant other broadcasters and authorised and recognised news agencies, where they are acting directly on behalf of authorised broadcasters, the right to use short extracts for the purpose of use in a general news program on fair, reasonable and non-discriminatory terms taking due account of other licensed rights. Such terms should be communicated in a timely manner before the event of public interest takes place to give others sufficient time to exercise such a right. As a general rule, such short extracts:

- should not exceed 90 seconds and should have a duration only sufficient for purpose and in line with the nature of the event;

- should, in the case of organised events, be broadcast only after the original broadcaster has had the chance to distribute his broadcast, or 60 minutes after the occurrence, whichever the sooner;

- should not be broadcast later than 36 hours after the end of the event without specific authorisation by the rights holder;

- should be broadcast showing clearly the name of the original broadcaster and/or the rights holder for the whole duration of the broadcast;

- should be compensated for appropriately by the television broadcaster in favour of the rights holder;

The obligations of this article do not override any provision of the copyright law of Member States, including for example the Directive 2001/29/EC, the Berne Convention and the Rome Convention.

Short news reports may either be chosen freely by the broadcasters from the transmitting broadcaster’s signal with at least the identification of their source, or broadcasters may, in accordance with the law of the Member State concerned and for the purpose of transmission, themselves obtain access to the event.

(28) Non-linear services are different from linear services with regard to choice and control the user can exercise and with regard to the impact they have on society. This justifies imposing lighter regulation on non-linear services, which only have to comply with the basic rules provided for in Articles 3c to 3h.

(28) Non-linear services are different from linear services with regard to the choice and control which the user can exercise and with regard to the impact they have on society. This justifies imposing lighter regulation on non-linear services, which only have to comply with the basic rules provided for in Articles 3c to 3h. Television broadcasts - i.e. linear services - currently include in particular analogue and digital television, live streaming, webcasting and near video on demand, whereas video on demand, for example, is an on-demand (non-linear) services.

Justification

Linguistic changes.

(35) Non-linear audiovisual media services have the potential to partially replace linear services. Accordingly, they should where practicable promote the production and distribution of European works and thus actively contribute to the promotion of cultural diversity. It will be important to regularly re-examine the application of the provisions relating to the promotion of European works by audiovisual media services. Within the framework of the reports set out in Article 3f paragraph 3, Member States shall also take into account notably the financial contribution by such services to the production and rights acquisition of European works; the share of European works in the catalogue of audiovisual media services as well as in the effective users’ consumption of European works proposed by such services.

(35) Non-linear audiovisual media services have the potential to partially replace linear services. Accordingly, they may promote the production and distribution of European works and thus actively contribute to the promotion of cultural diversity. It will be important to regularly re-examine the application of the provisions relating to the promotion of European works by audiovisual media services.

(36) When implementing the provisions of Article 4 of Directive 89/552/EEC as amended, Member States should make provision for broadcasters to include an adequate share of co-produced European works or of European works of non-domestic origin.

deleted

(40) Commercial and technological developments give users increased choice and responsibility in their use of audiovisual media services. To remain proportionate with the goals of general interest, regulation must allow a certain degree of flexibility with regard to linear audiovisual media services: the separation principle should be limited to advertising and teleshopping, product placement should be allowed under certain circumstances and some quantitative restrictions should be abolished. However, where product placement is surreptitious, it should be prohibited. The separation principle should not prevent the use of new advertising techniques.

(40) Commercial and technological developments give users increased choice and responsibility in their use of audiovisual media services. To remain proportionate with the goals of general interest, regulation must allow a certain degree of flexibility with regard to linear audiovisual media services: the separation principle should be limited to advertising and teleshopping, product placement should be allowed under certain circumstances for certain cases determined on the basis of a positive list, and some quantitative restrictions should be abolished. However, where product placement is surreptitious, it should be prohibited. The separation principle should not prevent the use of new advertising techniques.

Justification

It needs to be made clear that product placement is not allowed generally, but only under certain circumstances in cases set out in the positive list.

(41) Apart from the practices that are covered by the present Directive, Directive 2005/29/EC applies to unfair commercial practices, such as misleading and aggressive practices occurring in audiovisual media services. Moreover, as Directive 2003/33/EC, which prohibits advertising and sponsorship for cigarettes and other tobacco products in printed media, information society services and radio broadcasting, is without prejudice to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in view of the special characteristics of audiovisual media services, the relation between Directive 2003/33/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive. Article 88(1) of Directive 2001/83/EC which prohibits advertising to the general public of certain medicine products applies, as provided in paragraph 5 of the same Article, without prejudice to Article 14 of Directive 89/552/EEC; the relation between Directive 2001/83/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive.

(41) Apart from the practices that are covered by the present Directive, Directive 2005/29/EC applies to unfair commercial practices, such as misleading and aggressive practices occurring in audiovisual media services. Moreover, as Directive 2003/33/EC, which prohibits advertising and sponsorship for cigarettes and other tobacco products in printed media, information society services and radio broadcasting, is without prejudice to Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, in view of the special characteristics of audiovisual media services, the relation between Directive 2003/33/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive. Article 88(1) of Directive 2001/83/EC which prohibits advertising to the general public of certain medicine products applies, as provided in paragraph 5 of the same Article, without prejudice to Article 14 of Directive 89/552/EEC; the relation between Directive 2001/83/EC and Directive 89/552/EEC should remain the same after the entry into force of the present Directive. In addition, the provisions of this Directive should have priority over those of Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the internal market.

Justification

A clear legal line must be drawn between this directive and Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market. This gives legal certainty, which is particularly important for investors in the new media industry.

(42) As the increase in the number of new services has led to a greater choice for viewers, detailed regulation with regard to the insertion of spot advertising with the aim of protecting viewers is no longer justified. While the Directive does not increase the hourly amount of admissible advertising, it gives flexibility to broadcasters with regard to its insertion where this does not unduly impede the integrity of programmes.

(42) As the increase in the number of new