Finally the long awaited and much debated replacement for the EU “TV Without Frontiers” Directive has been signed off. For the many of us who had tuned out long ago, Carla Basso provides a much needed heads up on the key changes now certainly on the way.
Who: European Council
When: 11 December 2007
Law stated as at: January 2008
Originally adopted to provide a legal framework for the free movement of television broadcasting services in the EU and the promotion of European content, Directive 89/552/EEC – the "Television without Frontiers Directive" – has been undergoing an amendment process for a number of years, the intention being to update the legal provisions in order to catch up with the rapid technological changes in the television market.
The European Commission first released its proposed changes in 2005. The European Council reached a "General Approach" on the draft on 13 November 2006, and in March 2007 the Commission unveiled a consolidated text of the modernised Directive. We have been reporting on the progress of the various proposals throughout this procedure. Finally, following a negotiation process between the Parliament and the Council, a "common position" was reached, culminating at last in the publication of the final "Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007" in the Official Journal no. L 332 of 18 December 2007.
New "Audio-Visual Media Services Directive" moniker
The Directive – which will now be called the Audio Visual Media Services Directive – therefore came into force at EU level on 19 December 2007. Member States now have two years in which to transpose it into national law – i.e. by 19 December 2009 at the latest, and at that point the rules will fully apply to the UK assuming H.M. Government meets the deadline. In the meantime, the provisions of the TV Without Frontiers Directive will remain fully applicable.
The changes which will be implemented by the new Directive fall into the following key areas:
Expanding the scope of the 1989 Directive.
The Directive's aim is to extend regulation from traditional television services to all "audio visual media services". This has been the subject of much lobbying and amendment, but the Directive will nevertheless soon apply to all commercial services which are delivered to the public by electronic communications networks, if those services are under the editorial responsibility of a media service provider and if their principal purpose is the provision of programmes in order to "inform, entertain or educate".
As a result, most audio-visual services of any television-like content sent over any wired or wireless network will be caught by the new rules. However, the Directive will bring in a two-tier regulatory approach which will differ slightly in its stringency depending on whether the services in question are "a television broadcast" or "an on-demand media service".
Television / On demand" dichotomy
A television broadcast is an audiovisual media service which is provided by a media service provider "for the simultaneous viewing of programmes on the basis of a programme schedule". This would therefore include scheduled broadcasting via traditional terrestrial, satellite and cable services, or scheduled programming via IPTV networks.
This is as compared to an on-demand audiovisual media service which is defined as an audiovisual media service which is "provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider". This catches truly on demand services on IPTV networks such as 'catch up TV' and video-on-demand services, as well as on-demand content available over mobile networks, where the viewer has complete control over what he watches and when.
Basic tier / higher tier" regulation
The new Directive would impose a basic tier of regulation on both television broadcasts and on-demand audiovisual media services – including such matters as ensuring users have detailed information about the identity and contact details of the service provider; that the content provided does not contain any incitement to hatred based on race, sex, religion or nationality; that services are available to those with visual or hearing disabilities; and prohibitions on surreptitious and subliminal advertising.
Television broadcasts will be subject to some additional controls, but more simplified than those previously applicable.
A new approach for product placement
Product placement has now been expressly recognised in the Directive "as a reality in cinematographic works and in audiovisual works made for television". However, to date, different Member States have dealt with its regulation in differing ways. In order to ensure a level playing field, product placement will now be prohibited in principle, but will be permitted for cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes, provided certain criteria are met. These conditions include:
- clearly informing viewers of the existence of product placement in such programming, by identifying it at the start and end of the programme, and when it resumes after an ad break;
- ensuring that there is no undue prominence given to the product, and there are no direct "calls to buy" by making particular references to the product; and
- ensuring that sponsors are not able to influence programme scheduling or affect the editorial independence of the media service provider.
Member States have the ability to "opt out" of the derogations – so they can still decide that product placement is or is not allowed for some or all of the categories of programmes mentioned above. It remains to be seen how the UK will deal with this provision although the expectation is that it will permit product placement subject to these controls.
New rules on the placing of adverts
Since the availability of on-demand audiovisual media services increases consumer choice, and enables them to avoid advertising through the use of new technologies such as personal video recorders, it has been accepted that detailed rules governing adverts for such services do not seem justified or necessary. Therefore whilst the rules that ads need to be recognisable as such, and separated from programming remain, detailed rules about the placing of adverts have been simplified:
- it is now up to broadcasters to choose when they insert ad breaks, provided the integrity of the programmes and the rights of right holders are not prejudiced;
- made for TV films (excluding series, serials, and documentaries), cinematographic works and news programmes may be interrupted only once every 30 minutes. Children's programmes over 30 minutes in duration may be interrupted once every 30 minutes – shorter ones cannot therefore be interrupted by any ad breaks. This leaves children's programming slightly worse off under the new rules, as previously they could be interrupted by adverts once every 20 minutes. The extent to which this impacts on the funding of such programming in the UK remains to be seen; and
- the rules about ad minutage are also relaxed. The current daily limit is abolished, although the hourly limits of 12 minutes of advertising per hour are retained.
Why this matters:
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, and the costs of complying with an extra tier of regulation imposed on EU on-demand audiovisual media service providers may well end up having a detrimental effect on the development of this industry in the EU.
Although Commissioner Reding recently recommended that Member States apply a light touch when implementing the new Directive, we still have to wait and see how the UK will deal with it. Although the EU legal process may have been completed, the journey to legislative certainty for service providers, brand owners and advertisers is not over yet.