Brussels lawmakers are limbering up to take over the digital world with a radical replacement of the creaking ‘TV Without Frontiers’ Directive. But what is all this about linear and nonlinear services? And what relevance might it have for Europe’s advertisers?
EU Audio Visual Media Services Directive takes shape
Who: The European Commission
In December 2005 the EC released a consultation paper on proposed changes to the so-called Television Without Frontiers Directive 89/552/EEC ("The Directive"). This was adopted in 1989 to provide a legal framework for the free movement of television broadcasting services within the EU and the promotion of a European market in broadcasting, television advertising and audio-visual content production.
The underlying principle of the Directive is that of regulation in the country of origin. Therefore provided a television broadcaster is properly licensed and regulated in the member state in which it is established, other member states cannot prevent the reception and transmission of that broadcaster's service to their residents.
The Directive also sets minimum standards in relation to television advertising and sponsorship, the protection of minors (in particular from inappropriate violent or sexual content) as well as the right to reply. In addition quotas were set for the minimum amounts of European content and independent productions that broadcasters must include in their services, the aim being to support and develop the independent production sector in the EU.
However the audio visual landscape has changed significantly since 1989 and the EC saw the need to revisit the way in which television content is regulated. The Directive review process began in 2001 and culminated in the publication of a Consultation paper in December 2005.
Three main areas of likely change
The proposed changes fall into three main areas:
First, the Commission proposes that the scope of the Directive be extended to cover audio-visual content delivered other than by broadcast. So wireless and internet content would be covered, together with other audiovisual content, regardless of platform or delivery mechanism. In consequence the Directive would be renamed the "Audiovisual Media Services Directive".
The regulatory approach would differ depending on whether the services in question were "linear" or "non-linear."
Linear services would all "push" content to viewers, with the service provider editing and determining the times at which the content is delivered. These would include scheduled broadcasting via traditional TV, IPTV or mobile phone networks. Non-linear services would be "pulled" by the viewer from a network with the viewer deciding what is watched and when and would include on-demand films.
Two tier regulatory approach
In terms of the regulatory landscape, a basic tier of regulation would apply to both linear and non-linear services. These would deal with aspects such as the protection of minors, the prevention of incitement to racial hatred and the outlawing of surreptitious advertising. Harmonising these rules EU wide, the EC says, will ensure that audiovisual media service suppliers need only comply with the rules of the member state in which they are established and not with the disparate rules of all the member states receiving their services.
Overlaying these basic rules would be a second, more stringent set of rules that would apply to linear services. However here the Commission promises to remove red tape, make existing rules more flexible for new forms of advertising and encourage self and co-regulation.
Serious concerns have been expressed about this approach by many including the UK government. The worry is that this could lead to another unnecessary layer of regulation for all ISPs and mobile operators providing services that included moving pictures. In addition to this, there is anxiety as to effective enforcement, with consumers simply moving to services from non EU based providers. The knock-on effect of this, it is said, could be to stifle the market within EU member states rather than supporting it.
Secondly, the amended Directive would relax and simplify the current position in terms of when and where advertising minutage may be deployed. It would do away with the current three hours per day limit and give broadcasters more freedom as to when they show ads. For instance the current rule that at least 20 minutes must be allowed between advertising breaks would be scrapped, but the 12 minutes per hour cap would however be maintained.
Product placement-a new dawn?
Thirdly, a new approach is proposed for product placement. The ban on "surreptitious advertising" in the existing Directive has been implemented in many member states (including the UK) as requiring a ban on paid-for product placement. However, some EU states including Austria have interpreted the Directive in a relaxed way and effectively allowed paid-for product placement and the new proposals would take Austria's lead and allow brand-owners to pay for their products to be included in linear and non linear programmes other than news, current affairs and children's programmes, subject to certain controls:
any paid-for product placement would need to be appropriately flagged at the beginning of the programme "to avoid any confusion on the part of the viewer";
programmes must not directly encourage purchase or rental of products;
brand-owners must not be permitted to influence content or scheduling in such as a way as to "affect the responsibility and editorial independence of the media service provider".
Why this matters:
Clearly the existing Directive needs updating but in its current form, what are the prospects for this new measure? We envisage much more debate and a good few twists and turns before any directive is finalised. Our best guess currently is that implementation across the EU will not be occurring much before 2008/9.
Head of marketing and privacy
Osborne Clarke London