Television Without Frontiers / Audiovisual Without Frontiers

The EU institutions have found agreement on amendments to the Television without Frontiers (TWF) Directive, the central piece of EU TV regulation. They propose to apply certain provisions of the Directive to some internet-based services and to partially lift regulations on advertising and product placement.

The 'Television without Frontiers' Directive (89/552/EEC) stems from 1989 and was last amended in 1997. Its core principle is that for TV broadcasts within the EU laws and regulations of the country where it is being produced apply everaywhere (country-of-origin principle). The main issues that the Directive tackles are:

  • Programming quotas: broadcasters should, in principle, reserve a majority of airtime for EU programmes, with 10 per cent of the schedule being programmes made by independent producers.
  • Advertising: there are detailed rules on the content of television advertising, e.g. concerning children, tobacco and alcohol.
  • General access to major events: The public should have access free of charge to events considered of major importance to society (such as big sporting events). 

As a result of a 23 May 2002 decision by the Culture and Audiovisual Affairs Council, the Directive has undergone an in-depth review. On 13 December 2005, the Commission presented its draft directive amending the Television without Frontiers Directive and re-naming it into 'Audiovisual Media Services Directive'.  Disputes within the Council on advertising rules led to the Directive going into second reading. On 24 May 200, the Commisison presented a new Draft Directive, which was the result of a political agreement between the Council, the Parliament and the Commission. The draft was endorsed by the Culture, Education and Youth Council on 24 May 2007, but it still needs to be approved by the plenary of the Parliament. 

The review concerns mainly the following issues:

  • Audiovisual media services
    The Commission included some 'TV-like' commercial services on the internet into the scope of the directive. The extension of the scope concerns mainly on-demand content such as shows, movies, serials, sports events and news reports, including the advertising therein. It does not concern video clips and animations in news and press websites, nor blogs, video podcasts, picture telephony over the internet and other non-commercial content. 
    The obligations for digital "pull", "on-demand" or "non-linear" services are different from those for television, the reason being, among other things, that it cannot be controlled as easily. The negative content regulation obligations are:

    • to identify the media service provider;
    • not to incite to hatred on race, sex, religion or nationality;
    • to gradually make their services accessible to people with a visual or hearing disability;
    • not to transmit cinematographic works outside periods agreed with the rights holders;
    • to respect protection of minors and "not to exploit the inexperience or credulity";
    • to identify advertising and other forms of commercial content;
    • not to use subliminal advertising;
    • not encourage behaviour prejudicial to health or to safety or grossly prejudicial to the protection of the environment;
    • to respect some restrictions on advertising (e.g. not to advertiseprescription-ponly medicines, cigarettes and tobacco products at all and not to advertise alcoholic beverages in programmes for minors), and;

    • to respect rules on product placement and sponsoring.

The draft also encourages media service providers to develop codes of conduct regarding "inappropriate audiovisual commercial communication", in children's programming, of high-fat, -salt and sugar foods and beverages.

  • New rules on advertising and product placement
    As television goes digital, modern, hard-disk based video recorders are becoming more and more popular. These devices make it easy to skip through advertising breaks in recorded programmes or even to start watching the recording while the programme is still running and, by skipping advertising breaks, to finish watching it at more or less the same time that the broadcast ends. 
    The spread of this technology will make advertising less attractive and, as a result, cheaper. The main source of revenue for private TV stations and an important source of income also for many state-funded ones will considerably diminish. 
    The Commission thinks that TV stations will need alternative sources of income that cannot be as easily skipped. Product placement - the paid-for placement of goods in movies, shows and even news programmes - could be this source of income. Product placement is currently illegal in most EU member states, but is a major source of income in the US, where almost 3.5 billion dollars were spent on it in 2004. 
    The Commission wants to leave the choice to member states whether to authorise product placement, but the proposal says it must be subject to some obligations: 

    • Product placement is allowed only in "cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes", or in cases "where there is no payment but only provision of certain goods or services for free, such as production props and prizes, with a view to their inclusion in a programme";
    • product placement must not take place in programmes for children; 

    • the product placement must be made clear at the beginning and the end of the broadcast concerned and when a programme resumes after an advertising break; 
    • it may not impede editorial independence; 
    • the goods may only be placed, not praised; 
    • some goods, like tobacco and prescription medicines, may not be placed. 

On traditional advertising, current rules will remain valid, namely that there must not be more than 12 minutes of advertising per hour of broadcasting and that, in films, news programmes and children's programmes, there must not be more than one advertising block within any 35-minute period. 

  • Positive content regulation

    Some of the 'traditional' positive content regulation, such as investment quotas for European and independent production, for television and for 'linear' internet services (services which are scheduled and delivered to the user at a time of the broadcaster’s choosing) will be retained. On-demand services must, just like classical TV, promote European works. 

  • General access to major events: Member states shall take measures to ensure that broadcasters "do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society". In particular, they "shall ensure that for the purpose of short news reports, any broadcaster established in the Community has access on a fair, reasonable and non-discriminatory basis to events of high interest to the public which are transmitted on an exclusive basis by a broadcaster under their jurisdiction."  

Addressing the the Association for Commercial Television (ACT), in 27 April 2006, Information Society Commissioner Viviane Reding said: "First discussions at working level with the Member States seem to indicate a reluctance of some to relax the current quantitative rules. I also currently hear calls for introducing additional rules and restrictions. I am well aware of the importance of advertising for the business model of commercial television, and I strongly believe that we should not give in to such calls. In a convergent media world with enhanced competition, commercial television and the advertising business clearly need flexibility under the regulatory framework. I therefore will continue to work on this in the legislative process."

The Parliament's rapporteur, Ruth Hieronymi, said, addressing journalists in Brussels on 29 August 2006: "The directive is by no means about regulating the internet, but about a lex specialis exclusively applicable to those services which are of particular importance for democracy and for freedom of information and opinion. The precondition is that they fulfill at the same time six criteria: 

  • They must be a service in terms of articles 49 and 50 of the EC treaty;
  • the main purpose of which must be;
  • to offer moving pictures with or without sound; 
  • for information, entertainment or education; 
  • of a general public, and;
  • they must be transmitted via electronic communication networks. 

In my report, I propose to add the criterium of 'editorial responsibility' and the notion of 'programme', in order to render more precisely the domain of application. Based on this definition, electronic services the main purpose of which is not the audiovisual component, such as electronic press or on-line newspapers - are clearly excluded from the scope." 

BEUC, the European consumers' organisation, said the Commission had announced there would be more advertising in future and more hidden advertising in the form of product placement. BEUC Director Jim Murray said that "the Television Without Frontier proposal is an unwanted Christmas present from Commissioner Reding and her colleagues." Earlier, BEUC had argued in favour of "clear provisions on an effective complaints procedure and to ensure that the rights of consumers in their own countries are not unduly infringed by television broadcasts from other countries". 

EGTA, the association of television and radio sales houses, said: "Although the Commission seems to acknowledge the need to streamline the existing regulatory framework on advertising, this proposal falls short of expectations and does not address the real challenge of the right of EU citizens to have free access to a wide variety of television programmes. EGTA Secretary General Michel Gregoire said: "Advertising is and will remain the primary source of financing for free-to-air television broadcasters. It is important to design a regulatory framework that will neither damage the present revenue stream nor hinder the development of new forms of advertising otherwise the financing of audiovisual content will be under serious threat in the years to come."

CEPI, the European federation of independent film and television producers, said the Commission had presented "a balanced view of the future needs of the audiovisual sector [...] especially concerning a more flexible and up to date approach to advertising and product placement". However, CEPI Secretary General Bruno Alves said he regretted "some lack of ambition shown by the European Commission in not calling for a more robust approach to the promotion of a competitive independent content production sector in Europe."

The European broadcasting union (EBU) welcomed "the Commission's proposal to extend the scope of the Television Without Frontiers Directive beyond traditional television to all audiovisual media services", saying "it will also enable ''non-linear' (e.g. on-demand) service providers to benefit from the country-of-origin principle, which remains the core of the Directive. This will in turn result in increased legal certainty and a better functioning of the Internal Market." 

  • The Commission presented its draft for the revised TVWF Directive on 13 December 2005. The Parliament and the Council decide on it under the codecision procedure.
  • Ruth Hieronymi (EPP-ED, Germany) was appointed as the rapporteur for the Culture and Education committee. She presented her 
    draft report
    on 23 August 2006.
  • In first reading, the Parliament voted on the TVWF directive on 13 December 2006 in Strasbourg.
  • Due to a lack of agreement on advertising rules between member states, the Directive went into second reading.
  • On 24 May 2007, the Commission presented an amended 
    Draft Directive, which the Culture, Education and Youth Council endorsed on the same day. The Parliament also endorsed the draft via its negotiators, but its plenary still has to agree in its July 10 - 12 session.
  • This would pave the way for the directive's entry into force in late 2007 or early 2008

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