What changes will be made to the Community's audiovisual policy? Work programme for reviewing the "Television without frontiers" Directive

IP/03/6

Brussels, 7^th January 2003

What changes will be made to the Community's audiovisual policy? Work programme for reviewing the "Television without frontiers" Directive

On a proposal from Viviane Reding, the Commissioner responsible for culture and audiovisual affairs, the College today adopted a report on the application of the "Television without Frontiers" (TVSF) Directive, together with a work programme for 2003 aimed at reviewing the Directive. The latter was adopted in 1989 and amended in 1997. The 2003 work programme will consist of a series of consultations with a view to arriving at operational conclusions on the relevance bearing in mind economic and technological developments of the existing Community rules, in particular concerning matters such as access to events of major importance to society, the promotion of cultural diversity, television advertising and the protection of minors.

As Viviane Reding has stated, "The Community's audiovisual policy has a dual aim. On the one hand, it concerns the internal market and the industry itself, the objective being to ensure the free movement of programmes within the Community and strengthen the European audiovisual industry. However, it also has a cultural and social objective, since it is also designed to protect certain general interests, both of the population as a whole and of specific social groups. I believe this dual aim should be maintained and that the TVSF directive is well adapted to the current economic and technological situation of the audiovisual industry in Europe".

She then went on to say: "But we have to look ahead: what framework will the audiovisual industry need by the end of this decade? Over the last two years, I have had intensive consultations with both politicians and experts. The work programme which the College adopted today is the product of these consultations. I hope the debate will produce concrete guidelines that will enable me to submit a communication to the College at the end of 2003 clarifying certain points and, if necessary, proposing major or minor changes to the TVSF Directive".

Application of the TVSF Directive: satisfactory overall picture

The market

The report adopted by the Commission begins by drawing a picture of the audiovisual landscape in Europe. Apart from the well-documented explosion in the number of channels (there were over 660 with national coverage at the beginning of 2001, a number that has probably now risen to over 800), it finds that an increasing number of channels are received in more than one EU country, mainly via satellite. However, despite this huge increase in the domestic and transnational supply of programmes, the average viewer's behaviour shows little change: there has been no switch to new media at the expense of television watching; the TV audience is concentrated around a limited number of channels; the respective market shares of public and private channels have remained stable.

Another finding is the weak presence of terrestrial digital television in the EU whereas increasing numbers of viewers receive digital programmes via satellite, with more than 19 million households connected out of the 33 million that receive their programmes via satellite (49 million households receive programmes by cable).

As for content, there has been an increase in "prime time" broadcasting of domestic TV fiction and "reality shows", while fiction products from the United States maintain a strong showing at other times. In 2000, our trade deficit with the United States on the television rights market was 4 billion dollars (8 billion dollars for all audiovisual services).

Radio and television turnover in the EU in 2000 was around EUR 62 billion, whereas the television advertising market amounted to around EUR 22 billion.

The Directive

The TVSF Directive has now been properly transposed in all the Member States. How is it being applied?

• The provisions concerning the establishment of the jurisdiction under which a broadcaster is authorised to operate (here, the principle of the country of origin applies, so that once the broadcaster has been authorised to broadcast in one country he may broadcast to other countries), which are based on the fundamental freedoms set out in the EC Treaty and confirmed by the Court of Justice, do not appear to cause any major problem.

• Several Member States have made use of Article 3a of the TVSF Directive (introduced in 1997), which allows any country to draw up a list of events (sports events, in particular) of major importance for society that must be accessible in unencoded form to a significant proportion of the public. To date, Italy, Germany, the United Kingdom and Austria have used this option, whereas Denmark has withdrawn its list. Belgium and Ireland have begun the procedure that will result in the publication of a list. In the Commission's view, the provisions of Article 3a of the TVSF are satisfactory.

• Measures to promote programme distribution and production ("quotas") were recently discussed in a separate report showing that this part of the TVSF Directive is operating effectively. See IP/02/1632 of 8 November 2002.

• The part of the TVSF Directive that is devoted to television advertising, sponsorship and teleshopping contains quantitative provisions (hourly and daily limits on advertising), qualitative provisions on certain forms of advertising, and certain presentation requirements. The Commission has received a number of complaints, especially from consumers' associations, about failure to comply with the quantitative restrictions. To examine these complaints, infringement proceedings have been initiated. In addition, the Commission has arranged for a study on new advertising techniques (see MEMO/02/130 of 7 June 2002).

• The TVSF Directive requires the Member States to take appropriate steps to ensure that broadcasters under their jurisdiction do not broadcast programmes which might seriously impair the physical, mental or moral development of minors, as may be the case with scenes of pornography or gratuitous violence. One of the steps taken by Member States, television channels and the industry to meet this requirement is the rating of programmes. The report finds that rating systems vary widely between one Member State and another and between one form of distribution and another (e.g. between projection in a cinema and distribution in the form of video cassettes and DVDs). The Commission has launched a study on this subject, the results of which will be presented at the beginning of 2003.

• Most of the 13 candidate countries for membership of the EU have aligned the bulk of their legislation with the TVSF Directive. Negotiations on audiovisual matters have concluded with 11 countries, which should soon be joined by Romania. However, apart from the few legislative adjustments that are still required before these countries actually join, the Commission continues to monitor the effective application of the new audiovisual legislation in the candidate countries.

Review of the TVSF Directive: main themes of the work programme

The work programme will be implemented by means of a vast public consultation exercise in the Member States and candidate countries.

In terms of the future of European regulation, two general considerations must be taken into account: the scope of regulation and the linkages between the various relevant Community instruments.

The discussions will focus, inter alia, on linkages between legislative measures, co-regulation and self-regulation. Some of the general interests protected by the Directive may be protected more effectively through a more direct involvement of the actors in the sector, either by supplementing regulation with commitments that they enter into or by relying on self-regulation.

Apart from these general considerations, the consultation exercise will deal with the following specific themes:

• Should the current provision on access to events of major importance for society be improved?

• Should the provisions in TVSF Directive on the promotion of European works be fleshed out? In its Communication on the film industry presented in September 2001 (see IP/01/1326 of 27 September 2001), the Commission already mentioned the need to expand certain parts of this chapter, such as the definition of "European work" or "independent producer and independent production". Other matters covered by the programme concern the chronology for the broadcasting of films and the definition and exploitation of on-line rights.

• Do the rules on advertising as provided for in the TVSF Directive still comply with the principle of proportionality? For example, there may not be much point in the Directive keeping the current precise quantitative restrictions on advertising in an environment of increasing viewer choice brought about by the large number of channels and interactive television. In addition, does the increasing scope for interactivity opened up by digital technology mean that certain advertising rules, relating to quality and/or presentation, need to be clarified or reviewed? As far as advertising is concerned, the boundary lines between regulation, co-regulation and self-regulation need to be drawn.

• The current provision allowing Member States to take protective measures where a programme of a broadcaster under another jurisdiction might seriously endanger the health of minors is effective. However, one problem regarding the protection afforded to minors is the current limited scope of Community rules on the audiovisual sector: should there be more consistency in the rules applying to the various forms of broadcasting, in particular as regards rating, and if so, what would be the best way to achieve this?

• Should the provision in the Directive on the right of reply when a person's reputation or good name have been damaged cover forms of broadcasting other than television?

• Are the criteria defining the jurisdiction of a Member State over a broadcaster sufficiently clear or should they be reviewed?

• A new theme: should the Directive include a "right to short extracts" as it exists in several Member States, albeit in different forms? It is important to determine whether the absence of Community provisions creates obstacles for the internal market.

Context of the TVSF Directive: linkage with the MEDIA Plus programme and its future the possibility of an "audiovisual package"

The TVSF Directive is not the only element in the internal dimension of the EU's audiovisual policy. It has to operate in conjunction with other instruments. Here, mention should be made of the 1998 Recommendation on the protection of minors in audiovisual and information services, which calls on the Member States, broadcasters, on-line service providers and the industry to develop and implement parental control measures and codes of conduct.

In addition, the MEDIA Plus programme (2001-2005) provides financial support for the development of the European audiovisual industry and the promotion of cultural diversity (see, for example, IP/02/104 of 23 May 2002), while the joint "i2i Audiovisual" initiative of the Commission, the European Investment Bank and the European Investment Fund seeks to strengthen funding of the sector and facilitate its transition to digital technologies.

The conclusion of the work programme will coincide with the date on which the Commission is to present a proposal on the programme that is to succeed MEDIA Plus in 2006, and with the adoption of a report evaluating the Recommendation on the protection of minors. If, as a result of the work programme, the Commission were to propose amendments to the TVSF Directive, an "audiovisual package" would be submitted to the College at the end of 2003 or the beginning of 2004.