Brussels, 7 June 2002
Study on the development of new advertising techniques and their regulatory implications
The European Commission has just received a report by independent experts on the development of new advertising techniques. The study, which does not necessarily reflect the Commission's views, is part of a wider evaluation of the "television without frontiers" directive that will figure in a report to be adopted by the College by the end of 2002. This evaluation report will be backed up by a work programme designed to prepare the ground for a subsequent revision of the directive. The independent study confirms the reasons that led Viviane Reding, the European Commissioner in charge of audiovisual policy, to opt for a pre-revision work programme rather than an immediate revision of the TWF directive.
Advertising provisions in the TWF directive
These are intended to protect viewers by various means: separating advertising from the remainder of the programmes; banning the advertising of tobacco products and restricting the advertising of medicinal products and alcoholic beverages; banning any advertising likely to cause moral or physical detriment to minors. They are also designed to protect the integrity and value of programmes and to protect people's health.
In addition, the directive imposes restrictions on the broadcasting of advertising spots or teleshopping programmes, both between and during ordinary programmes. Finally, the TWF directive contains specific provisions governing the sponsorship of programmes and teleshopping.
Findings of the study
The study looked at the regulatory implications of three new advertising techniques: interactive advertising, split screen, and virtual advertising.
Interactive advertising, which allows viewers to control what they wish to see and how long they are exposed to advertising, is going to expand not only with digital television but also with the Internet and mobile phones.
According to the study, if the TWF directive also applies to digital television, it is doubtful whether its provisions on advertising can be applied to interactive advertising because, as soon as a viewer deliberately leaves a linear television programme to enter a commercial environment, he may no longer be protected by the TWF directive (which covers services provided for the general public and not on request).
Apart from this uncertainty concerning the scope of the directive, there is also some doubt as to the relevance of the existing rules. According to the study, the rules on the length of advertising would definitely no longer apply. As for the other advertising provisions in the directive, the requirement that there should be a clear distinction between programmes and advertising still appears to be necessary as a means of protecting the viewer. In this connection, the rules applied in the United Kingdom to this type of advertising are of some interest: there must be a clear separation, using an intermediate screen, between the moment when the viewer leaves the programme and the moment when he enters the commercial environment. Media professionals consulted for the study are in favour of a light regulatory regime (because of the control that the consumer has) which is identical for all types of media.
Split screens enable editorial content and commercial information to be presented simultaneously on the same screen. This is already used widely not only on the Internet but also for certain television programmes. Except in the case mentioned above, where the split screen invites the viewer to enter an interactive advertising environment, the study considers that the advertising provisions in the TWF directive clearly apply to cases where a screen is split between a linear programme and advertising.
The study then asks whether this splitting of the screen is not contrary to the principle of separating advertising from programmes and to the rules on the insertion of advertising, as laid down in the directive. At present, the split screen is banned by the following Member States: the Netherlands, Portugal, Sweden and France. However, this type of advertising is allowed in the United Kingdom and Germany, albeit under different conditions. Consequently, the experts feel it would be useful if the Commission were to clarify how the separation requirement in the TWF directive is to be interpreted: is a spatial separation sufficient or does the directive require a temporal separation?
With respect to the split screen, the study also discusses other questions such as respect for works and the agreement of those holding rights to a linear programme broadcast on the non-commercial part of the screen.
Virtual advertising or sponsorship enables advertising messages or the name of a sponsor to be inserted into a programme using special electronic means. One example of this is the use of panels in sports grounds where the broadcaster can change an advertisement from one moment to the next or choose the advertisement shown on the screen depending on where the target audience is. This form of advertising is banned in Italy, France and Portugal. It is allowed in Greece and Spain and, under certain conditions, in Germany and the United Kingdom. In the United Kingdom, the rules require that the quality of the image should not be affected and that broadcasters are not involved in selling advertising space. In Germany, viewers must be informed that a programme contains this type of advertising or sponsorship.
According to the authors of the study, insofar as this technique is at present used mainly for sponsorship purposes, this form of advertising does not appear to lie outside the scope of the TWF directive, whose provisions on sponsorship therefore apply in full.
Recommendations in the study
The study, which emphasises how uncertain operators are as to the speed at which the audiovisual landscape in Europe is likely to change (another study on this subject will soon be available), considers that there is no urgent need to review Community provisions on audiovisual media, but that there is a need to clarify some of the advertising provisions in the TWF directive because of the wide differences between the way in which various countries have responded to the new advertising techniques. In view of the slowness of media convergence as it affects the general public, the experts do not think it necessary to devise advertising rules applicable to all types of media.