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IRIS 2007-2:7/9

European Parliament

First Reading of Audiovisual Media Services Directive

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Nico van Eijk & Mara Rossini

Institute for Information Law (IViR), University of Amsterdam

In December 2006, the European Parliament discussed the Commission proposal, unveiled a year earlier, to revise the Television Without Frontiers Directive (see IRIS 2006-1:5). The revision is being carried out with a view to converting the Directive into a future-proof version which has accordingly been dubbed the Audiovisual Media Services Directive. The European Parliament adopted the report produced by the German parliament member Ruth Hieronymi. This first reading resulted in approximately 130 amendments to the original Commission proposal.

Parliament has accepted the basic underlying principles such as the extension of the scope by including non-linear (on-demand) audiovisual media services for which - in comparison with traditional television broadcasts - a lighter regulatory regime will apply. In the recitals, the reference to international instruments such as the European Convention on Human Rights was strengthened. Parliament extended the country of origin principle and proposes a detailed regulation allowing receiving countries to ask for and to take remedies against programme services that circumvent national rules justified for reasons of public policy, including the protection of minors, public security, public health or the protection of diversity.

Other amendments address topics such as the maximum amount of advertising/teleshopping, advertising breaks, product placement and advertising of unhealthy food and drinks for children. To illustrate a few of these amendments in more detail: a 20% quantitative restriction rule has been adopted where advertising is concerned; for programme types that are specifically protected such as cinematographic works or television films, a slight deviation has been operated as the advertising interruptions suggested every 35 minutes by the Commission proposal have been reduced to a 30 minute-interval; as for the “fatty food” issue, it is to be addressed through codes of conduct. The issue of product placement was controversial at the time of the drafting of the Commission proposal and was subject to much criticism on the part of Parliament. The Commission proposal incorporated both product placement and sponsorship in one same article which in essence meant that product placement would be permissible. Parliament’s approach was to separate them and to devote an independent article to product placement in which the latter is on the contrary generally prohibited. Exception, however, is made for cinematographic works, films and series made for television and sports broadcasts. Product placement is admissible in these types of works and broadcasts unless Member States decide otherwise. This exception was highlighted by the Rapporteur as being necessary where European works face competition from the United States.

The right to broadcast short news reports and the right of reply feature more predominantly in Parliament’s Resolution. The former is dealt with in Article 3(b) and is a right “each” Member State should guarantee in accordance with national law, breaking away from the Commission proposal’s wording which made this right an option for Member States. The right of reply is mentioned in Recital 38 A as “a particularly appropriate legal remedy in the online environment, since it is possible to correct the contested information immediately”. Parliament therefore resolves to extend this right to new media services rather than confining it to traditional television.

A new Article 23c was adopted in which Member States shall adopt measures to ensure the pluralism of information in television broadcasting; Parliament further underlines the need for qualified independent regulators. Also, it agrees with the Commission proposal’s stance on co-regulation (which Member States should encourage).

It is now the task of the Council of Ministers to reach a common position. An informal Council has been announced on 12 February 2007, which is to prepare for the adoption of a common position at the Council in May.

European Parliament legislative resolution on the proposal for a directive of the European Parliament and of the Council amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities of 13 December 2006 EN