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European Commissioner for Information Society and
Speech given at the Congress of the Federal Association of German Newspaper
Ladies and gentlemen,
You have asked me to talk about Europe and the media from the viewpoint of the European Commission. As you know, this is a subject to which I am very attached for two reasons. Firstly, I used to be a journalist myself: even as a 16-year-old in Luxembourg I was always on the way looking for a good local, national or European story. Secondly, I am now European Commissioner for media policy. I will therefore begin by looking at the issue in general policy terms and then go on to consider in more detail some of the key aspects of European media policy today.
The difficulty in forming European public opinion
Last Friday, I met here in Brussels with the Chief Editors of six daily newspapers from Denmark, Luxembourg, Malta, the Netherlands, Spain and the United Kingdom. For several hours we discussed the situation of the print media in Europe today. The six Chief Editors then attended the “midday briefing”, the press briefing given by the European Commission every day at 12 p.m. which is beamed around the world via the Internet.
After the press briefing, the Chief Editors, all of whom know the realities of everyday politics in their six European capitals, told me the briefing had surprised them. So it was a fact that every day for about an hour the European Commission took all kinds of questions from the Brussels press corps, ranging from Europe’s role in the mass redundancies at Hewlett Packard to the situation of the German language in Europe and the accession of Turkey. Brussels, they agreed, always said to be so remote from EU citizens, is in reality clearly a perfectly normal public institution, and remarkably open and transparent in the way it deals with the Brussels’ press corps. What was astonishing, they said, was how little of this permeated through to the national capitals and was reported by the media in general, even though, with more than 100 journalists, the Brussels’ press corps is the world’s biggest after Washington’s.
We tried to find an explanation for this. My guests told me reports from Brussels’ correspondents were still viewed as rather esoteric news items by their countries’ head offices. These reports generally did not make the top stories. Only a really sensational story such as a clash between Brussels and their own country was likely to make it into the headlines.
This is just the personal experience of six Chief Editors, of course, and we must be careful not to generalise. But their experience highlights a basic problem that exists between Europe and the media, one to which the German Federal Constitutional Court referred in its legendary ruling on the Maastricht Treaty in 1993. Up to the present time, only the first signs exist of a genuinely European, cross-border opinion. This is – I am very happy to say – because Europe is not a centralised uniform state and indeed will never be one. Rather, European life is based on the diversity of its nations, regions and cultures, and therefore the differences between national public opinion. Therefore even today every debate on European political issues is seen primarily from the national perspective.
This leads to a political paradox, however: although we live in the age of globalisation when economic, social and environmental challenges increasingly call for a trans-frontier, often a continent-wide or even a global political response, rarely do politicians and the media manage to overcome their national differences in public debates and to identify common responses. With the major challenges facing us today in particular – the fight to make Europe more competitive, creating jobs and security for our citizens – Europe’s heterogeneity much too often means we arrive at solutions which are just the very lowest common denominator. Generally, both national and European politicians alike therefore cannot really offer citizens any real added value.
Europe is therefore again at a crossroads. You cannot run Brussels down six days a week in the national capitals, thus prompting a “No” vote on Europe the seventh day, and the next week complain that Europe is too weak and incapable of action. National decision-makers must make up their minds once and for all what kind of Europe they want, or rather: what kind of Europe is in the citizen's interest.
It is not up to me to say what particular role the media should play in this context. Prime responsibility for Europe’s present serious crisis of public opinion clearly rests with us, the politicians, not only in Brussels but to a considerable extent in the 25 national capitals as well. May I return to the wise statement made in 1993 by the Constitutional Court judges in Karlsruhe. The development of a genuinely European public opinion, the Federal Constitutional Court said, depends not least on the EU institutions’ aims and the processes by which decisions are taken being made known in the nations concerned. The Federal Constitutional Court went on, and I quote: “Parties, associations, the press and broadcasters are both the medium for and a factor in this process, which may lead to the formation of a European public opinion”.
At this juncture, I would like to thank the Federal Association of German Newspaper Publishers for helping to ensure, through today’s event in Berlin and its European coverage, and its constant proactive contribution to political discussions in Brussels, that the German Constitutional Court's demand, which is so important for Europe, may be met in the not too distant future. Europe needs more than ever a genuine European public opinion and European policies legitimised by it.
The key issues of current European media policy
After these general points, let me turn now to a number of concrete aspects of Brussels' policies which are often of serious concern to the representatives of the print media here today. Europe affects the print media in two ways: as media, you report on what is going on in Brussels, but as businesses you in many ways often find yourselves directly or indirectly affected by decisions taken in Brussels.
I am totally convinced that, in the interest of media independence and press freedom, both politicians and media companies should take great care to keep these two areas apart. Of course, I know that in most media companies there is very strict separation between economic management and journalistic and editorial responsibility for this very reason.
For the same reason, the European Commission has its own Commissioner for Communication, my Swedish colleague Margot Wallström, who is responsible for relations with the media, and for communication in the broad sense. The Commission also has a Commissioner for media policy and hence the media industry, namely myself.
What are the aims of our European media policy today? Our most important aim is to have a strong European media landscape as an expression of media pluralism and to face up to international competition. Media policy in Europe is in essence a national responsibility, so the European Commission can only lay down a general framework and this must be filled out by the Member States is accordance with their national traditions. Only in the case of obviously cross-border issues does the European Commission itself have a mandate to take political decisions.
These certainly do not always have to be new legislative proposals. On the contrary, the new Commission under President Barroso which has been in office since November 2004 has repeatedly made it very clear that, in our view, self-regulation can in many cases be much more sensible and effective than adding yet another layer of regulation – especially for the media industry. In many cases we will only propose new legislation if it is designed to eliminate rules which are out-of-date, to simplify existing rules and procedures in a clear manner or to do away with red tape, which people rightly criticise. As Brussels’ politicians, it will clearly be our great responsibility in the months and years ahead, through our new policy on “better regulation”, to show that we do not intend repeating the mistakes of the past but rather to eliminate regulatory excess step-by-step.
This especially applies to media policy and above all the print media. I know many of you today think of Brussels directly in terms of the tobacco advertising ban which applies to all the media. I am also aware that media policy in Brussels has, in many cases at the insistence of a large majority of the Member States, not been designed for consumers who can make up their own minds but has tended to take the form of bans telling people what was best for them in a rather paternalistic manner.
Ladies and gentlemen, let me make it clear once and for all: as long as I am Commissioner for media policy, there will be no proposals from Brussels for new advertising bans. I will certainly not, for example, allow the advertising of alcohol to be banned.
You may now say it is very nice to hear this but Viviane Reding is just one of 25 Commissioners. You are right, the Commission is a collegiate body, and as Commissioner for the media I have only one out of 25 votes on media issues. Theoretically, it is therefore quite possible that I could be outvoted on such key issues of media policy. However, the Commission under President Barroso has created a new mechanism which will prevent this in the vast majority of cases.
President Barroso has given me responsibility in the Commission for coordinating issues relating to the media business. In my Directorate-General, there is therefore now a “Task Force on Media Issues” which scrutinises all Commission projects and drafts to see whether they might endanger the economic foundations of the media industry or the freedom of the media. In view of this very effective mechanism, there are not even any draft proposals for new advertising bans. My colleagues and I will make every effort to ensure things stay this way.
We are doing this of course not only because of our basic political convictions and because we believe citizens can make up their own minds. Rather, we are aware that the European media industry makes a key contribution to growth and employment in Europe and that we should therefore not impose further regulation if we wish to strengthen it internationally, as is the objective of the Lisbon Agenda and the i2010 strategy of the European Commission.
The aim of increasing competitiveness applies especially to the print media. Last week, I presented a working paper giving a detailed analysis of the competitiveness of the European publishing industry. It says publishing in the EU contributes 0.5% to gross domestic product in the 25 EU Member States and provides nearly 750 000 jobs in 64 000 companies. However, publishing is also faced with numerous economic and technological challenges, which are discussed in depth in our working paper. We have attached a questionnaire to this document and hope you will all send us lots of suggestions and proposals for ways in which the European Commission can help to further boost the competitiveness of the European media industry, especially the print media, through competition-friendly ground rules.
However, I would like to make two important points. Firstly, nobody should expect me as European Commissioner for the media to protect particular parts of the industry from technological change in the digital age. Just recently, an important publisher complained to me that the European Commission had allowed firms quoted on the stock exchange to fulfil their duty of publicity by publishing not in the written press but on the Internet.
Ladies and gentlemen, the Internet is a reality, and it is the duty of businesses, not of the European Commission, to find out what innovative business models are likely to be successful and profitable in the multimedia age. It would really be a prize example of remoteness from the people and from reality if the European Commission, of all bodies, were to oppose this technological change!
Secondly, nobody should expect me as European Commissioner for the media to follow my liberal course on advertising regulation only with regard to the print media. Consumers, readers, viewers and Internet surfers are entitled to make up their own minds as regards all ways of using the media. Anyone asking me to defend the print media against advertising bans but to maintain outdated restrictions on television advertising is knocking at the wrong door. And they would be acting against their own interests. The tobacco advertising ban shows it is very likely that advertising restrictions applicable to the audiovisual media will at some time be carried over to other media.
The best way of protecting the print media against new advertising bans is therefore to support my policy, namely to assume that consumers can make up their own minds as regards advertising in all the media.
This brings us to the final part, the issue of surreptitious advertising and product placement which is currently the subject of heated debate in Germany. This issue is important in terms of media policy and illustrates the challenges which European policy has to meet in a European Union of 25 Member States. I would therefore ask you to consider the issue for a moment without all immediately turning your thoughts to “Marienhof”.
Since 1989, surreptitious advertising has been banned in all EU countries under the EU Television Directive. This ban is an important European media policy achievement as it forbids the television viewer from being deliberately misled by the television broadcaster. To avoid any misunderstandings right from now: surreptitious advertising on television has been prohibited since 1989 and will remain so in future under the modernised Television Directive on which we are presently working.
For some years, however, there has been something in the European media landscape which we have known about for a long time from American films but which is very poorly covered by existing statutory regulations: this is the issue of product placement. Product placement raises difficult practical and legal questions for the media supervisory authorities. How, in terms of media law for example, do we rate the BMW which was so often and so prominently visible in the latest James Bond films? And what about the Lotus Esprit which during the first ten minutes of “Pretty Woman” appears – much to my personal regret – more times than Richard Gere? Imagine the headline announcing a decision: “The European Commission bans James Bond films from Europe’s television screens” – now that really would put Brussels on the front pages of the daily newspapers in all 25 EU countries!
But seriously, product placement today occurs in a grey legal area. Not all product placement is covered by the EU-wide definition of surreptitious advertising. According to the Television Directive, surreptitious advertising only exists when three cumulative requirements are met: first, it must be shown that the television broadcaster’s action is deliberate; second, the television broadcasters’ action must be intended to achieve an advertising effect; and, third, there must be a risk of the public being misled as regards the purpose of mentioning or showing the product.
In the case of the James Bond film, it is not the action of the television broadcaster showing the film which is deliberate but rather the action of the Hollywood studio where the film was made. As it is, it is doubtful whether there is any advertising effect when a BMW is cut up into small pieces using a circular saw, as one was in the film “The world is not enough”– a scene BMW opponents took great pleasure in disseminating over the internet saying: “This is the proper way to treat a BMW”. Finally, how daft do we think viewers are if we think this placement of a BMW will mislead them? As you see, much of this is unclear, and two media legal experts are quite likely in such cases to have three different opinions on the subject.
This lack of legal certainty is one of the reasons why the European Commission has been addressing the issue of produce placement since 2003 and has consulted the whole of Europe and received very many informative comments, including from journalists’ associations and the print media. The lack of legal certainty is increased by the fact that most EU countries do not have any statutory regulation of produce placement, but leave the issue to broadcasting organisations themselves or to the judgments of the courts, which makes it extremely difficult to manage this issue from one country to another. In the comments sent to the Commission, European film producers complain that they are at a considerable disadvantage compared with their US competitors because of the unclear legal situation in Europe. US films may be financed through produce placement, while in Europe, where the film industry has to struggle hard against US competition as it is, the legal situation differs from one country to another and it is often unclear whether such financing is legal or not.
In my view, the European Commission must create legal certainty. We must introduce a legal regulation to make it clear what surreptitious advertising is and when product placement may exceptionally be legal. Such a regulation should, in my view, strike a balance between three important public interest objectives: protection of the consumer against being misled; boosting the competitiveness of the European contents industry; and preserving the independence of editors.
The Commission has not yet taken a final decision. I could however imagine a regulation which prohibits any form of product placement in news programmes, reports and documentaries where protection of the independence of the editorial content must have absolute priority in the interests of free reporting. Conversely, I can imagine product placement being allowed in the fictional area – cinema films, television films and television series – provided viewers are clearly informed.
Anyone who looks at the legal situation in Austria will soon see that such statutory rules are quite possible without this being the beginning of the end of the western world as we know it. Furthermore, the distinction, to which I referred, between news and information programmes, on the one hand, and fiction, on the other, would also ensure that the spillover sometimes feared onto the print media would be extremely limited from the very start. The print media must take account of a further new development in the EU: since 11 May 2005, the EU Directive on unfair business practices prohibits so-called “advertorials” throughout Europe, which at least clearly regulates the legal situation for the print media.
Ladies and gentlemen,
European media policy requires democratic political, economic and cultural interests to be constantly taken into account and can therefore only be developed through constant dialogue with companies, consumers, journalists, television editors and film producers from all 25 EU Member States. Some of you may believe this is not a task for which I can be envied. In this case, however, I must say you are wrong: with European media policy in particular, you immediately see how the diversity of Europe means there is a need for someone to mediate between cultures and ways of thinking. For me, as a former journalist and a European politician, this is a challenge which, more than ever, is as interesting as it is sensible, even after five years as a Commissioner.
Thank you for your attention.
 Translator’s note: A German TV programme where surreptitious advertising and product placement are allegedly to be seen.
 Pursuant to Article 5(1) and (4) in conjunction with Annex I, (11), Directive 2005/29/EC follows the following misleading business practice: “Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)”.