EU Audio visual media services directive passes another milestone

Topic: TV
Who: European Parliament
Where: EU
When: Ongoing
Law stated as at: 30 May 2007

What happened:

Further updates on the European Commission's proposed changes to Directive 89/552/EEC – the "Television without Frontiers Directive". 

Originally adopted to provide a legal framework for the free movement of television broadcasting services in the EU and the promotion of European content, the Directive is being updated to catch up with technological changes in the television market. 

The European Council reached a "General Approach" on the existing draft on 13 November and we reported on this at the end of last year.  All was then quiet on the European front while the legislative process inched its way slowly forwards….

Finally, the pace has picked up again.  On 9th March, the Commission unveiled a consolidated text of the modernised Directive, which is currently undergoing a negotiation process between the Parliament and the Council, who must reach a "common position" on it. 

Word on the streets of Brussels is that the Parliament's Committee on Culture and Education has already recommended that the Parliament should accept the latest compromise draft before them.  The Committee on Culture and Education is due to meet on 24th May and are also expected to back the draft, and recommend that the Parliament accepts it as the common position without any further changes. 

If that happens, then this long and winding legislative process would be completed at the second reading stage, which seems scheduled for July.  However, it's not over yet.  Recommendations of Committees aren't binding, and it's possible that the Parliament could still request changes, although any such amendments would require an absolute majority.

In the meantime, some key points from the Commission's Consolidated Text:

• What services are caught by the Directive? The Directive's aim is to extend its rules and regulations from traditional television services to all "audio visual media services".  The definition has been the subject of much lobbying and amendment, but the Directive will essentially soon apply to all commercial services which are delivered to the public by electronic communications networks, if those services are under the editorial responsibility (that's in a professional capacity) of a media service provider, and if their principal purpose is the provision of programmes in order to "inform, entertain or educate".
• "Programmes" are defined as moving images with or without sound which constitute individual items within a schedule or catalogue established by the service provider, and which are comparable to the form and content of television broadcasting. 
• All sounds a bit Euro-speak? Roughly translated, the upshot is that most audio-visual services of any television-like content sent over any wired or wireless network will be caught.  A few services will escape regulation:
  • private blogs and user generated content are not intended to be caught if they are non-economic and don't compete with television services;
  • games of chance involving a stake (including lotteries and betting), and online games and search engines, in each case provided their main purpose isn't delivering audiovisual content;
  • services where the distribution of audiovisual content is not the principal purpose of the service – e.g. websites which just have some ancillary audiovisual elements with a few animated graphics or advertising spots (though in practice it may well be difficult to see where the line gets drawn);
  • electronic versions of newspapers and magazines;
  • static content like wallpapers sent to your mobile;
  • stand alone text based services; and
  • audio only services.
• What rules apply? Providers will have to comply with rules which include making certain minimum information available about who has editorial responsibility for their content, and ensuring their audiovisual media services are not damaging to minors and do not include content containing any incitement to hatred (based on, race, sex, religion or nationality etc).  Providers are also required to promote the production and access to European works.  Although no quotas are imposed on on-demand services, some general examples are given of what such promotion might include – such as contributing financially to the production and rights acquisition of European works, or to ensuring a prominence of European works in the overall catalogue.
• Placing of Adverts – originally the Commission had proposed changes to the rules on the placing of adverts which would have seen ad breaks in films, children's and news programmes restricted to every 35 minutes.  Following lobbying by worried advertisers and broadcasters, concerned that most programmes of this type are bought and sold in 30 minute blocks, the consolidated text takes this on board.  The latest proposals say that films, news programmes and children's programmes of over 30 minutes can be separated by ad breaks once every 30 minutes. Religious services must remain ad free.
• Content of adverts – the rules applicable to ads in audio-visual media services are pretty uncontroversial, and similar in scope to those applying to broadcast advertising. Adverts must look like adverts, with surreptitious ads and subliminal techniques prohibited.  Ads must be non-discriminatory  – on the usual grounds of race, religion etc and they must not be harmful to or exploit minors.
• Product placement – banned outright by the original Directive, the proposed rules on this have gone back and forth during the legislative process.  The current position sees product placement generally prohibited, but unless member states decide otherwise it will now be allowed in films, series made for audio-visual media services, light entertainment and sports programmes, or in cases where no payment is made but the products are provided free of charge.  Nevertheless, product placement remains banned from children's programmes.

  Programmes which contain product placement have to meet a strict set of criteria, which ensure: that an audio-visual media service provider's editorial responsibility and independence can't be affected; that there is no direct encouragement to buy the product by making special references to it; and that the product is not given undue prominence (which appears to mean prominence which isn't justified by the editorial requirements of the production or the need to make the production realistic).  Further, viewers must be clearly informed about the existence of the product placement at the start and the end of the programme and also when the programme resumes after an ad break.

Why this matters:

This is no longer just a piece of legislation for the broadcasters only.  The extension of the Directive from pure broadcasting to all audio-visual media services will soon add to the regulatory burden for on-demand service providers and advertisers.  Keeping pace with the way the draft is progressing will allow them to plan for the time when the Directive's rules are finally in force.  Now that everyone is a broadcaster, it pays to stay tuned.