Brussels, 23 April 2004
More legal certainty for TV advertising: the Commission clarifies its interpretation of the "Television without Frontiers" (TVWF) Directive
With the development of new advertising techniques, such as split screen, interactive advertising and virtual advertising and the increasing use of new forms of advertising, questions about the proper interpretation of the rules on advertising in the Television without Frontiers (TVWF) Directive, and the compatibility of these practices therewith, have repeatedly been put to the Commission. Through a Communication adopted today, the Commission intends to clarify its interpretation of the Directive. The Communication shows that new advertising techniques and new forms of advertising are compatible with the Directive, provided that their use respects the objectives of general interest pursued by the Directive, namely the viewers right to a clear separation between editorial content and commercial communication as well as the viewers right to protection against excessive advertising, as detailed in the Directive, and the right of the rights-holders to the respect of the integrity of their audiovisual works. In accordance with the case law of the European Court of Justice, it is based on the principle that a prohibition of and advertising technique or a form of advertising applies to the extent and to the extent only that it is clearly stated in the Directive. However, it is without prejudice of the Directive's faculty for the Member States to foresee stricter and/or more detailed rules for broadcasters under their jurisdiction.
Viviane Reding, Commissioner in charge of Education and Culture said: "The Television without Frontiers Directive recognises that advertising is the economic basis for all private and for a part of public service free-to-air television, which is essential for a free and diversified television and media landscape in Europe. At the same time, the Directive makes it clear that there have to be limits to advertising in order to safeguard the interests of the viewers, and also of the right-holders of audiovisual works. This Communication enables broadcasters, viewers and right-holders alike to understand better what is allowed and what is not. I would like to point out that we have undertaken extensive efforts to hear all parties concerned. I am convinced that this Interpretative Communication provides for a balanced and useful clarification of the rules that takes into account the various interests involved".
The public consultation launched by the Commission in 2003 within the framework of the review of the "Television without Frontiers" (TVWF) Directive confirmed that the Directive has provided so far a flexible and adequate framework for the regulation of the audiovisual sector by Member States.
However, it has also shown that the means by which the objectives of general interest have been safeguarded are now questioned in view of the changes that occurred in the audiovisual landscape after the adoption of the original TVWF Directive in 1989.1
On the basis of this consultation, the Commission indicated in its communication on "The future of the regulatory audiovisual policy" published on 15 December 20032 that it would adopt a two step procedure of short-term and medium-term measures.
In the medium term, an in-depth analysis of various issues for which the Commission considers that further reflection is necessary will need to be conducted before adapting the current legislative framework.
In the short term, the Commission committed itself to adopt an interpretative Communication on certain aspects of the provisions on televised advertising in the "Television Without frontiers" (TVWF) Directive.
It is this text that has been adopted today.
The idea behind this communication is to clarify certain questions that arise in the application of the existing Directive. Therefore, it does not create or propose new rules or principles, but is limited to explaining the existing rules and principles. . In this respect, the interpretative communication addresses certain questions of interpretation of the rules of the Directive that arose with the increasing use of new advertising techniques, such as virtual advertising, split screen and interactive advertising, as well as the development of alternative forms of advertising, e. g. product placement etc.
These questions of interpretation were already identified by the Commission in its Communication on the "Audiovisual policy in the digital age" of 1999 3 and confirmed by an independent study on new advertising techniques that was published in 20014. The main conclusions from this study were set out by the Commission in its Fourth Report on the application of the TVWF Directive of 2003, namely that new advertising techniques and new forms of advertising were not per se incompatible with the Directive5. However, this report showed that the interpretation of the Directive was still the subject of considerable uncertainties in the Member States.
To conclude, by stating its interpretation of the rules of the TVWF Directive regarding TV advertising in a comprehensive and transparent way, the Commission wants to enhance legal certainty in the use of new techniques and forms of advertising while ensuring that the principles contained in the Directive are fully respected. This clarification should thus be welcome by viewers, professionals, broadcasters and the Member States.
1 There were a mere 50 channels available in the European Community in 1989 when the original Directive was adopted. Today, there are more than 2000 channels in the EU, some of them addressing, across national boundaries and via digital platforms, very specific niche-markets.
2 See IP note IP/03/1732