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Provisions of the TWF directive on televised advertising (interpretative communication)
The objective of this communication is to clarify the way in which the "television without frontiers" (TWF) Directive should be applied to new advertising techniques (split-screen advertising, interactive advertising, product placement). This interpretative communication on televised advertising is part of the framework for amending the TWF Directive.
Commission interpretative communication of 23 April 2004 on certain aspects of the provisions on televised advertising in the "Television without frontiers" Directive [C (2004) 1450 - Official Journal C 102 of 28.04.2004].
The objective of this interpretative communication is to specify how the provisions on certain commercial practices and new advertising techniques in the TWF Directive should be applied. It seeks to clarify some key rules and increase legal certainty for economic operators.
This communication focuses on existing rules; it does not lay down any new ones.
Compatibility of new advertising techniques
The communication shows that the new forms and techniques in advertising are not per se incompatible with the Directive, provided their use does not undermine the objectives of general interest pursued by the Directive:
- the right of viewers to a clear-cut separation of advertising from editorial content (in particular by acoustic or optical means);
- the right of viewers to protection against excessive advertising of all kinds;
- the right of rights holders to have the integrity of their audiovisual works respected.
The Commission sets out to clarify how the TWF Directive should be applied to certain advertising practices (e.g. mini-spots, telepromotions) and to new advertising techniques (split-screen advertising, virtual advertising and interactive advertising).
The advertising practice of using mini-spots consists of broadcasting an extremely short advertising spot when an incident occurs during a programme broadcast. This practice has emerged particularly in connection with the transmission of football matches.
The Commission reminds national authorities that they must ensure that the broadcast of mini-spots does not undermine the principles of the TWF Directive with regard to the form and presentation of televised advertising. These advertising messages must be readily recognisable as such and kept separate from other parts of the programme. Furthermore, the broadcast of mini-spots must remain the exception.
Telepromotions are a form of television advertising based on the interruption of studio programmes (especially game shows) by slots devoted to the presentation of products or services. During telepromotions, the programme presenters momentarily swap their role in the games in progress for one as "promoters" of the goods or services presented.
The Commission considers that telepromotions are compatible with the Directive, provided they are kept quite separate from other parts of the programme service. Telepromotion spots fall under the daily limits set by the Directive (the proportion of telepromotion spots may not exceed 20% of the daily transmission time).
Split-screen advertising involves transmitting editorial content and advertising content simultaneously or in parallel. For example, one or more advertising spots appear in a window during the transmission of a programme in such a way that two separate images are visible on the screen. This technique enables the viewer to continue to watch the editorial programme during the transmission of an advertising spot.
The Commission explains that split-screen advertising may be superimposed during programmes, provided there is a period of 20 minutes between each advertising announcement. Furthermore, the superimposition of split-screen spots must comply with the Directive provisions on hourly and daily limits for broadcasting advertising spots.
Interactive advertising allows viewers to supply information directly to the broadcaster via a return path, or to interactively explore a chosen environment for as long as they wish.
When it comes to applying the TWF Directive to this advertising technique, the Commission distinguishes between two different scenarios.
As long as the viewer has not entered the interactive environment, the context is one of a linear broadcast of television programmes governed by the TWF Directive. This means that the provisions of the Directive apply with respect to the obligation to keep advertising separate from editorial content, to advertising content and to the protection of human dignity and of minors.
However, when the viewer chooses to enter the interactive environment voluntarily, he or she leaves the linear environment governed by the TWF Directive and enters an interactive electronic commerce environment. The messages aimed at him or her now are governed by the electronic commerce Directive.
Regardless of the broadcasting method used (linear or interactive), advertising announcements must observe the Recommendation on the protection of minors and of human dignity.
Virtual advertising involves using virtual techniques for inserting advertisements during broadcasts of sporting events, in particular, by replacing existing advertising boards on the field or by superimposing new images.
The Commission emphasises that virtual advertising may be used to replace the actual messages advertised on billboards in sports arenas and stadiums. However, virtual advertising messages must not be more visible or conspicuous than those that normally appear on the billboards in question.
This communication follows on from the public consultation launched in 2003 as part of the review of the TWF Directive. The consultation showed that there was a need to reconsider how the Directive should be applied in light of the changes that had occurred in the audiovisual world (particularly with regard to advertising) since the Directive had been adopted in 1989.
On the basis of this consultation, the Commission stated in a communication of 15 December 2003 on The Future of European Regulatory Audiovisual Policy that it intended to adopt an interpretative communication on the provisions in the TWF Directive which dealt with televised advertising.
The Directive on the provision of audiovisual media services amending the TWF Directive entered into force on 18 December 2007.
Further information can be found on the European Commission's Audiovisual and Media website.