Comparative MEDIA LAW SESSION 7 Dirk VOORHOOF Ghent University

Comparative Comparative MEDIA LAWMEDIA LAW

SESSION 7SESSION 7Dirk VOORHOOFDirk VOORHOOFGhent UniversityGhent University

www.psw.ugent.be/dvwww.psw.ugent.be/dv

EU MEDIA POLICYEU MEDIA POLICY

The EU Television DirectiveThe EU Television Directive

IntroductionIntroduction

AnalysisAnalysis

PerspectivesPerspectives

EU & MediaEU & MediaTreaty European CommunityTreaty European Community

Art 2. Common market, economic and monetary union in order to Art 2. Common market, economic and monetary union in order to promote sustainable development of economic activities (..) promote sustainable development of economic activities (..) the raising of the standard of living quality of lifethe raising of the standard of living quality of life

Art 3. Activities of the CommunityArt 3. Activities of the Community

- abolition of obstacles to the free movement of goods, - abolition of obstacles to the free movement of goods, persons, persons, servicesservices and capital (..) and capital (..)- ensuring that competition in the internal market is not - ensuring that competition in the internal market is not distorteddistorted- the approximation of laws > functioning of common market- the approximation of laws > functioning of common market- strenghtening competitiveness of Community industry- strenghtening competitiveness of Community industry- contribution to the flowering of cultures of the Member States- contribution to the flowering of cultures of the Member States- strenghtening consumer protection- strenghtening consumer protection


Art 4. > Open market economy Art 4. > Open market economy with free competition with free competition

Art 5. > Principle of subsidiarityArt 5. > Principle of subsidiarity

Art. 7. Tasks of Community carried out byArt. 7. Tasks of Community carried out by- European Parliament- European Parliament- Council (of Ministers)- Council (of Ministers)- Commission- Commission- Court of Justice- Court of Justice


Art. 23 (..)Art. 23 (..)

Free movement of goodsFree movement of goods

(art. 30: exceptions…)(art. 30: exceptions…)


Art 49. No restrictions to provide servicesArt 49. No restrictions to provide serviceswithin the Community within the Community = basic principle= basic principle

Art 50. Services = normally provided for Art 50. Services = normally provided for remuneration remuneration

i.a. activities with commercial characteri.a. activities with commercial character

Art. 52. In order to achieve liberalisation of a Art. 52. In order to achieve liberalisation of a specific service, the Council shall, on proposal specific service, the Council shall, on proposal from the Commission and after consulting (..) from the Commission and after consulting (..) the European Parliament, issue the European Parliament, issue directivesdirectives


Art. 81-88: Rules on fair competitionArt. 81-88: Rules on fair competition within the Community within the Community

- - no abuse of dominant positionno abuse of dominant positionno aids granted by state distorting or - no aids granted by state distorting or

threatening competition by favouring certain threatening competition by favouring certain undertakings/goods .. Affects trade - art. 87undertakings/goods .. Affects trade - art. 87

+ exceptions+ exceptions- general economic interest (..) art. 86,2- general economic interest (..) art. 86,2- aid to promote culture (..) art. 87, 3, d- aid to promote culture (..) art. 87, 3, d

+ control Commission + control Commission


Art. 151. CultureArt. 151. Culture

- - The Community shall contribute to the flowering of The Community shall contribute to the flowering of the cultures of the member states while respecting the cultures of the member states while respecting their national and regional diversity and at the same their national and regional diversity and at the same time bringing the common cultural heritage to forcetime bringing the common cultural heritage to force

- Encouring cooperation- Encouring cooperation

- Taking cultural aspects into account in particular in - Taking cultural aspects into account in particular in order to respect and promote the diversity of order to respect and promote the diversity of culturescultures


Protocol of AmsterdamProtocol of Amsterdam (nr. 32) (nr. 32)On the system of public broadcasting in the On the system of public broadcasting in the member states (1997)member states (1997)

- Public broadcasting- Public broadcasting- State aid/funding- State aid/funding

- Application of EU-rules on competition- Application of EU-rules on competition

+ + Communication EC 5/11/2001Communication EC 5/11/2001 - mission “public service”- mission “public service”

- different ways of financing PBS- different ways of financing PBS- transparant and proportional- transparant and proportional

EU & MediaEU & MediaTreaty establishing a Constitution for Treaty establishing a Constitution for

Europe, 2004 (draft!)Europe, 2004 (draft!)

Article I-2 The Union's values Article I-2 The Union's values

The Union is founded on the The Union is founded on the values values of respect of respect for human dignity, freedom, democracy, for human dignity, freedom, democracy, equality, the rule of law and respect for equality, the rule of law and respect for human rightshuman rights, including the rights of persons , including the rights of persons belonging to minorities. These values are belonging to minorities. These values are common to the Member States in a society in common to the Member States in a society in which which pluralism, non-discrimination, pluralism, non-discrimination, tolerance, justice, solidarity and equality tolerance, justice, solidarity and equality between women and menbetween women and men prevail. prevail.

EU & MediaEU & Media

Article I-3 The Union's objectivesArticle I-3 The Union's objectives

1. The Union's aim is to promote 1. The Union's aim is to promote peacepeace, its , its values and the values and the well-beingwell-being of its peoples. of its peoples.

2. The Union shall offer its citizens an area of 2. The Union shall offer its citizens an area of freedom, security and justicefreedom, security and justice without without internal frontiers, and an internal frontiers, and an internal marketinternal market where competition is free and undistorted. where competition is free and undistorted.



3. The Union shall work for the sustainable 3. The Union shall work for the sustainable development of Europe based on balanced development of Europe based on balanced economic growtheconomic growth and price stability, a and price stability, a highly competitive social market highly competitive social market economy,economy, aiming at full employment and aiming at full employment and social progress, and a high level of protection social progress, and a high level of protection and improvement of the quality of the and improvement of the quality of the environment. It shall promote scientific and environment. It shall promote scientific and technological advance (..)technological advance (..)



3. It shall combat social exclusion and discrimination, 3. It shall combat social exclusion and discrimination, and shall and shall promote social justice and protectionpromote social justice and protection, , equality between women and men, solidarity between equality between women and men, solidarity between generations and protection of the generations and protection of the rights of the rights of the childchild. .

It shall promote It shall promote economic, social and territorial economic, social and territorial cohesioncohesion, and solidarity among Member States., and solidarity among Member States.

It shall respect its It shall respect its rich cultural and linguistic rich cultural and linguistic diversitydiversity, and shall ensure that Europe's cultural , and shall ensure that Europe's cultural heritage is safeguarded and enhanced.heritage is safeguarded and enhanced.

EU & MediaEU & MediaArticle I-3 The Union's objectivesArticle I-3 The Union's objectives

4. In its relations with the wider world, the Union shall 4. In its relations with the wider world, the Union shall uphold and uphold and promote its values and interestspromote its values and interests. It . It shall contribute to peace, security, the sustainable shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual development of the Earth, solidarity and mutual respect among peoples, free and fair trade, respect among peoples, free and fair trade, eradication of poverty and the eradication of poverty and the protection of human protection of human rightsrights, in particular the rights of the child, as well as , in particular the rights of the child, as well as to the strict observance and the development of to the strict observance and the development of international law, including respect for the principles international law, including respect for the principles of the United Nations Charter. of the United Nations Charter.

5. The Union shall pursue its objectives by appropriate 5. The Union shall pursue its objectives by appropriate means commensurate with the competences which means commensurate with the competences which are conferred upon it in the Constitution.are conferred upon it in the Constitution.

EU & MediaEU & MediaPart II Part II

Charter of Fundamental Rights of the UnionCharter of Fundamental Rights of the Union

Article II-71 Article II-71 Freedom of expression and informationFreedom of expression and information

1. Everyone has the right to freedom of 1. Everyone has the right to freedom of expression. This right shall include freedom to expression. This right shall include freedom to hold opinions and to receive and impart hold opinions and to receive and impart information and ideas without interference by information and ideas without interference by public authority and regardless of frontiers. public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall 2. The freedom and pluralism of the media shall be respected.be respected.

EU and audiovisual mediaEU and audiovisual media

The audiovisual sector directly The audiovisual sector directly employsemploys over one million people in the European over one million people in the European Union. In addition to its Union. In addition to its economiceconomic importance, it also plays a key importance, it also plays a key social social and cultural roleand cultural role: television is the most : television is the most important source of important source of information and information and entertainmententertainment in European Societies, in European Societies, with 98% of homes having a television, with 98% of homes having a television, and the average European watching and the average European watching more than 200 minutes television per more than 200 minutes television per day.day.

EU and audiovisual mediaEU and audiovisual mediahttphttp://://ec.europa.euec.europa.eu//avpolicyavpolicy/index_/index_en.htmen.htm

Four typesFour types of action are used to implement audiovisual and of action are used to implement audiovisual and media policies: media policies:

1. The 1. The Regulatory FrameworkRegulatory Framework: : - the Television without Frontiers Directive- the Television without Frontiers Directive- Recommendations for the Protection of minors in an - Recommendations for the Protection of minors in an online-environment and European film heritage online-environment and European film heritage

2. 2. Support mechanismsSupport mechanisms (MEDIA programme) at a European (MEDIA programme) at a European level to complement the systems existing at national level to complement the systems existing at national levellevel

3. Other actions are promoted with regard to the 3. Other actions are promoted with regard to the distribution distribution of audiovisual content on electronic networks (Content of audiovisual content on electronic networks (Content Online and Media Literacy) and Online and Media Literacy) and Media PluralismMedia Pluralism; ;

4. External Measures, in particular the defence of European 4. External Measures, in particular the defence of European cultural interests in the context of the World Trade cultural interests in the context of the World Trade Organization Organization (WTO)(WTO)

The Commission also participates in the The Commission also participates in the European European Audiovisual Observatory (IRIS)Audiovisual Observatory (IRIS)

COE and mediaCOE and media- Art. 10 ECHR, see Art. 10 ECHR, see www.coe.int/T/E/human_rights/media/www.coe.int/T/E/human_rights/media/

- ECTTV ECTTV (European Convention on Transfrontier Television)(European Convention on Transfrontier Television)- Declaration COM 31 January 2007 on protecting the role of Declaration COM 31 January 2007 on protecting the role of

the media in democracy in the context of media the media in democracy in the context of media concentrationconcentration

- Declaration COM april 1982 on the freedom of expression Declaration COM april 1982 on the freedom of expression and informationand information

- Rec., Resolutions and Declarations on media and court Rec., Resolutions and Declarations on media and court reporting, media and terrorism, media and hate speech and reporting, media and terrorism, media and hate speech and violence, media and the promotion of a culture of tolerance, violence, media and the promotion of a culture of tolerance, political debate in the media, right of reply, protection of political debate in the media, right of reply, protection of journalistic sources, internet + Internet Governance Forumjournalistic sources, internet + Internet Governance Forum

COE and mediaCOE and mediaAlso:Also:

- Rec. (94) 13 on measures to promote media Rec. (94) 13 on measures to promote media transparancytransparancy

- Rec. (99) 1 on measures to promote media Rec. (99) 1 on measures to promote media pluralismpluralism

- Rec. (96) 10 on the guarantee of the Rec. (96) 10 on the guarantee of the independence of public service broadcastingindependence of public service broadcasting

- Rec. (2000)23 on the independence and Rec. (2000)23 on the independence and functions of regulatory authorities for the functions of regulatory authorities for the broadcasting sectorbroadcasting sector

- Rec. (2006) on the guarantee of the Rec. (2006) on the guarantee of the independence of public service broadcasting independence of public service broadcasting

- Rec. (2007) on the remit of public service Rec. (2007) on the remit of public service media in the information societymedia in the information society

EU TV-Directive 1989/1997EU TV-Directive 1989/1997AIMSAIMS

1. Guarantee freedom to provide services 1. Guarantee freedom to provide services > TV broadcasting as service > TV broadcasting as service + reference to Art. 10 Eur. Convention+ reference to Art. 10 Eur. Convention < free movement of information < free movement of information

2. Harmonize broadcasting legislation, esp. 2. Harmonize broadcasting legislation, esp. regulation of advertising, sponsoring, teleshoppingregulation of advertising, sponsoring, teleshopping

3. Promote EU-television production/AV-culture3. Promote EU-television production/AV-culture

4. Protection of minors4. Protection of minors5. Right of reply5. Right of reply6. Access of public events of major importance6. Access of public events of major importance

+ 7. Monitoring of EU-broadcasting regulation+ 7. Monitoring of EU-broadcasting regulation

TV-Directive 1989/1997TV-Directive 1989/1997

Definitions !Definitions !

- Television broadcastingTelevision broadcastingInitial transmission (..)Initial transmission (..)in un encoded or encoded formin un encoded or encoded formof TV programmesof TV programmesintended for reception intended for reception by by the publicthe public

NOT : -communication servicesNOT : -communication services on individual demand on individual demand


1. Guarantee freedom to provide services1. Guarantee freedom to provide services

> transborder TV> transborder TV

art. 2 - control by originating state: art. 2 - control by originating state: ““home controlhome control””

° < under its jurisdiction° < under its jurisdiction° criteria (“establishment”)° criteria (“establishment”)

- head office & editorial decisions- head office & editorial decisions- (..) significant part of workforce- (..) significant part of workforce- (..)- (..)“no gaps, no overlaps”“no gaps, no overlaps”


1. Guarantee freedom to provide services1. Guarantee freedom to provide services > transborder TV> transborder TV

art. 2a- free transmission/reception in art. 2a- free transmission/reception in other EU-member statesother EU-member states

> ensure freedom of reception > ensure freedom of reception > no restriction of retransmission> no restriction of retransmission

> > no second controlno second control * only one exception * only one exception

> art. 22 + 22a!!> art. 22 + 22a!!> conditions!> conditions!> procedure!> procedure!


2. Harmonisation of advertising rules2. Harmonisation of advertising rules

But also art. 3 (and 20)But also art. 3 (and 20)

“ member states shall remain free to require “ member states shall remain free to require television broadcasters under their jurisdiction television broadcasters under their jurisdiction to comply with more detailed or stricter rules to comply with more detailed or stricter rules in the area covered by this Directive”in the area covered by this Directive”

-> “minimum rules” -> “minimum rules” - - (ex. DK, Sweden and Belgium)(ex. DK, Sweden and Belgium)


2. Harmonisation (art. 10-20)2. Harmonisation (art. 10-20)- - AdvertisingAdvertising

- identification as advertising- identification as advertising and to be kept separate (art. 10) and to be kept separate (art. 10)- restricted interruptions of programmes - restricted interruptions of programmes

(art. 11) (..)(art. 11) (..)- restrictions on content (art. 12) (..)- restrictions on content (art. 12) (..)- prohibition of advertising for tobacco - prohibition of advertising for tobacco

products (art.13)products (art.13)- restrictions on alcohol (art. 15)- restrictions on alcohol (art. 15)- medicinal products and treatments- medicinal products and treatments

only when on prescription (art. 14)only when on prescription (art. 14)- restrictions minors (art. 15) (..)- restrictions minors (art. 15) (..)- max. time day/hour – 20/15/20 % - max. time day/hour – 20/15/20 %

(art. 18) (art. 18)

TV-Directive 1989/1997TV-Directive 1989/1997 (..) (..) AdvertisingAdvertising

- restricted interruptions of programmes (art.11) (..)- restricted interruptions of programmes (art.11) (..)

° inserted between programmes° inserted between programmes= principle= principle

° during programmes° during programmes* > integrity of programme* > integrity of programme

and rights are not prejudicedand rights are not prejudiced* autonomous parts/sports* autonomous parts/sports

-> intervals-> intervals* AV-works (films): blocks 45 min+ 2x45 = 20min.* AV-works (films): blocks 45 min+ 2x45 = 20min.* other programmes: 20 minutes elapse of time * other programmes: 20 minutes elapse of time

between each successive advertising breakbetween each successive advertising break* NO INTERRUPTIONS !* NO INTERRUPTIONS !

- religious services- religious services- news and current affairs, documentaries,- news and current affairs, documentaries, religious programmes and religious programmes and childrens programmes childrens programmes !! with sheduled duration of !! with sheduled duration of less than 30 minutes less than 30 minutes


(..) (..) AdvertisingAdvertising

Restrictions contentRestrictions content (art. 12) : (art. 12) : SHALL NOTSHALL NOT

- prejudice respect for human dignity- prejudice respect for human dignity- include discrimination on grounds of - include discrimination on grounds of race, sex or nationality race, sex or nationality

- be offensive to religious or political - be offensive to religious or political beliefsbeliefs- <-> health or safety- <-> health or safety- <-> protection of environment- <-> protection of environment


(..) (..) AdvertisingAdvertisingRestrictions minorsRestrictions minors (art. 16) (art. 16)

- not cause detriment to minors- not cause detriment to minors- respect following criteria- respect following criteria

SHALL NOTSHALL NOT- a. exploiting inexperience/credulity- a. exploiting inexperience/credulity- b. not directly encourage to persuade - b. not directly encourage to persuade

parentsparents or others or others

- c. exploit special trust in parents, teachers - c. exploit special trust in parents, teachers or others or others

- d. unreasonably show minors in - d. unreasonably show minors in dangerous situations dangerous situations


2. Harmonisation2. Harmonisation (art. 10-20) (art. 10-20)- Advertising- Advertising

(..(..))- - SponsoringSponsoring (art. 17) (art. 17)

- identification of sponsor- identification of sponsor- no influence by sponsor- no influence by sponsor ° content/sheduling° content/sheduling- no promotional references to - no promotional references to

services/products of sponsor services/products of sponsor (or third party) in the programme(or third party) in the programme

- no sponsoring of news and current - no sponsoring of news and current affair programmesaffair programmes

- Teleshopping- Teleshopping


3. Promotion of EU-AV culture3. Promotion of EU-AV culture (art. 4-6) (art. 4-6)

- + 50 % of transmission time (°)- + 50 % of transmission time (°) “European works” “European works”

- 10 % time/budget to - 10 % time/budget to European worksEuropean workscreated by producerscreated by producerswho are independent of who are independent of

broadcastersbroadcasters


3. Promotion of EU-AV culture3. Promotion of EU-AV culture (art. 4-6) (art. 4-6)

- What are “- What are “European worksEuropean works””Art. 6Art. 6Works originating from member statesWorks originating from member states

> Essential criteria> Essential criteria* made by producer established in EU* made by producer established in EU

or member state COE-TV-Conventionor member state COE-TV-Convention* or supervised/controlled by (..)* or supervised/controlled by (..)* contribution or co-produced by (..) * contribution or co-produced by (..)

> preponderant> preponderant> not controlled by producer outside EU> not controlled by producer outside EU

* + other criteria* + other criteria


4. 4. Protection of minorsProtection of minors (art. 22) (art. 22)

- Absolute ban- Absolute banseriously damaging moral, physical, seriously damaging moral, physical,

mental development of minors, esp.mental development of minors, esp.! pornography! pornography! gratuitous violence! gratuitous violence

- Relative ban- Relative ban damaging (..) damaging (..)

unless guarantees minors have no unless guarantees minors have no accessaccess - time- time

- technically encoded - technically encoded ! Warning message (visual or auditive)! Warning message (visual or auditive)


4. + art. 22a4. + art. 22a

- member states shall ensure that - member states shall ensure that broadcasts do not contain any broadcasts do not contain any incitement to hatred on grounds of incitement to hatred on grounds of race, sex, religion or nationalityrace, sex, religion or nationality

TV-Directive 1989/1997TV-Directive 1989/19975. 5. Right of replyRight of reply (art. 23) (art. 23)

- member states have to guarantee right of reply - member states have to guarantee right of reply

- persons whose legitimate interest- persons whose legitimate interest- esp. reputation/good name- esp. reputation/good name- is damaged- is damaged- < incorrect facts- < incorrect facts

* unless* unless- would broadcaster render liable- would broadcaster render liable to civil/criminal proceedings to civil/criminal proceedings- or would transgress standards- or would transgress standards

of public decencyof public decency

See also Rec (2004)16 on the right of reply in the new media See also Rec (2004)16 on the right of reply in the new media environment, COE: minimum principlesenvironment, COE: minimum principles

(scope, promptness, free of charge, exceptions, effective,(scope, promptness, free of charge, exceptions, effective, electronic archives, settlement of disputes…)electronic archives, settlement of disputes…)


6. 6. Events of major importance for society Events of major importance for society (art. 3a, 1 and 2)(art. 3a, 1 and 2)

> each member state > each member state MAY MAY take measures to ensure that take measures to ensure that broadcasters under its jurisdiction do not broadcast on an broadcasters under its jurisdiction do not broadcast on an exclusive basis events of major importance in society in such a exclusive basis events of major importance in society in such a way as to depriving a substantial proportion of the public the way as to depriving a substantial proportion of the public the possibility to follow such events via live coverage or deferred possibility to follow such events via live coverage or deferred coverage on coverage on free televisionfree television

> each member makes list (national/non, major importance)> each member makes list (national/non, major importance)+ whole/partial – live/deferred+ whole/partial – live/deferred

< European Commission < EU law< European Commission < EU law


6. 6. Events of major importance for society Events of major importance for society (art. 3a, (art. 3a, 3)3)

> member states > member states SHALLSHALL ensure that broadcasters under their ensure that broadcasters under their jurisdiction do not exercise the exclusive rights in such a way jurisdiction do not exercise the exclusive rights in such a way that a substantial proportion of the public in ANOTHER MEMBER that a substantial proportion of the public in ANOTHER MEMBER STATE is deprived of the possibility of following events which are STATE is deprived of the possibility of following events which are on the list of that other member state, via whole/partial live on the list of that other member state, via whole/partial live coverage or deferred coverage on coverage or deferred coverage on free televisionfree television

Cycling, footbal, tennis, cultural events…Cycling, footbal, tennis, cultural events…Ex: Roland Garros Fr., not only on pay TV in B.Ex: Roland Garros Fr., not only on pay TV in B.

httphttp://://ec.europa.euec.europa.eu//avpolicyavpolicy//regreg//tvwftvwf//implementationimplementation//eventsevents_list/index__list/index_en.htmen.htm


7. Monitoring7. Monitoring

> > Contact CommiteeContact Commitee – art. 23a – art. 23a-> facilitate effective implementation-> facilitate effective implementation

-> forum for exchange of views -> forum for exchange of views -> opinions on application-> opinions on application-> exchange of information-> exchange of information

-> examine developments in AV-sector-> examine developments in AV-sector


Implementation by member statesImplementation by member states - art. 25- art. 25 > European Commission > European Commission

-> Court of Justice-> Court of Justice

-> Review?-> Review?- “broadcasting” non-lineair - “broadcasting” non-lineair (> VOD, (> VOD,

AVMS)AVMS)- new advertising formats- new advertising formats

(split screen, virtual, (split screen, virtual, product placement, telepromotion) product placement, telepromotion)

-> EU Commission Interpretative -> EU Commission Interpretative Communication of 23 April 2004 Communication of 23 April 2004

From Television Directive toward From Television Directive toward Audiovisual Media Services DirectiveAudiovisual Media Services Directive

Proposal EC 13 December 2005Proposal EC 13 December 2005 + Common position 24 May 2007 + Common position 24 May 2007

New technologies, new business modelsNew technologies, new business models Ensure competition, employment, economic growth, legal certaintyEnsure competition, employment, economic growth, legal certainty

NewNew Co-regulation, involve stakeholdersCo-regulation, involve stakeholders Right to use short extracts for newsRight to use short extracts for news Regulation (light) for non-lineair servicesRegulation (light) for non-lineair services

- Protection of minors – no incitement to hatred- Protection of minors – no incitement to hatred- Commercial communications- Commercial communications

Transparancy on editorial responsibilityTransparancy on editorial responsibility

ModificationsModifications Product placement (conditions)Product placement (conditions) Deregulation advertising restrictions interruptionsDeregulation advertising restrictions interruptions

- 35 minutes, isolated spots in sports programmes- 35 minutes, isolated spots in sports programmes

httphttp://://ec.europa.euec.europa.eu//avpolicyavpolicy//regreg//tvwftvwf//modernisationmodernisation//proposalproposal_2005/index__2005/index_en.htmen.htm


Council of Ministers November 2006Council of Ministers November 2006

First reading E.P. 13 December 2006First reading E.P. 13 December 2006

The Commission's position on the scope were confirmed i.e. The Commission's position on the scope were confirmed i.e. including non-linear (on-demand) audiovisual media including non-linear (on-demand) audiovisual media services with basic obligations.services with basic obligations.

Country of origin principle strenghtened and the (re-) Country of origin principle strenghtened and the (re-) introduction of the notions of abuse and fraudulent introduction of the notions of abuse and fraudulent conductconduct

Concerning short reporting the adopted text follows the Concerning short reporting the adopted text follows the same direction as the general approach.same direction as the general approach.

With regard to advertising the Parliament adopted:With regard to advertising the Parliament adopted:– a 20% quantitative restriction rule a 20% quantitative restriction rule – no additional bans on alcohol etc. no additional bans on alcohol etc. – "fatty foods" issue to be addressed through codes of conduct "fatty foods" issue to be addressed through codes of conduct – for advertising breaks in films etc. a 30 minutes rule with a for advertising breaks in films etc. a 30 minutes rule with a

reference to the "scheduled duration" of programmes. reference to the "scheduled duration" of programmes. A new article (23c) was adopted in which Member States A new article (23c) was adopted in which Member States

shall adopt the measures needed to ensure pluralism of shall adopt the measures needed to ensure pluralism of information in television broadcastinginformation in television broadcasting


Amended version of draftAmended version of draftEuropean Commission, 9 March 2007European Commission, 9 March 2007

Political agreement on common position, Political agreement on common position, 24 May 200724 May 2007

Proposal /Common PositionProposal /Common Position28 September 200728 September 2007

Broadcasting and advertising restrictions in EUBroadcasting and advertising restrictions in EU Murphy v. Ireland, 10 July 2003 Murphy v. Ireland, 10 July 2003

Refusal by RADIO station of religious Refusal by RADIO station of religious advertisementadvertisement

Confirmed by IRTC Confirmed by IRTC > Broadcasting Act> Broadcasting Act “no advertisement shall be “no advertisement shall be

broadcasted broadcasted that is directed that is directed towards any religious or towards any religious or political end (..)” political end (..)”

Interference freedom of expression?Interference freedom of expression? Reference to art. 12 TV-DirectiveReference to art. 12 TV-Directive

No advertising that is offensive to religious or No advertising that is offensive to religious or political beliefspolitical beliefs


ECourt HRECourt HRInterference by public authority!Interference by public authority!Article 10 EConvention (+ art. 9)Article 10 EConvention (+ art. 9)

Prescribed by lawPrescribed by lawLegitimate aim: Legitimate aim:

> rights and freedoms of others > rights and freedoms of others““Necessary in democratic society?”Necessary in democratic society?”


““Necessary”?Necessary”?

Wide margin of appreciation in sphere of Wide margin of appreciation in sphere of morals or, esp. religion: no uniform morals or, esp. religion: no uniform European conception of the requirement of European conception of the requirement of “the protection of the rights of others” in “the protection of the rights of others” in relation to attacks on their religious relation to attacks on their religious convictionconviction

Particular religious sensitivities in Irish Particular religious sensitivities in Irish society, religion has been divisive issue in society, religion has been divisive issue in N.-IrelandN.-Ireland

Powerfull impact of audiovisual mediaPowerfull impact of audiovisual media

(..)(..)


““Necessary”?Necessary”?

Freedom to advertise would benefit a Freedom to advertise would benefit a dominant religion more than those religions dominant religion more than those religions with less adherents and resourceswith less adherents and resources

Prohibition concerned only advertising on Prohibition concerned only advertising on radio & TV (not disproportionate)radio & TV (not disproportionate)

Differences in EU-member states, see also Differences in EU-member states, see also TV-Directive (prohibition/offensive/no TV-Directive (prohibition/offensive/no specific restrictions)specific restrictions)

Documents

Comparative MEDIA LAW SESSION 7 Dirk VOORHOOF Ghent University