The first stage of the European debate on the reform of the Television Without Frontiers Directive has now ended with a vote in the Strasbourg Parliament.
At the moment the Parliament text is fairly similar to the response put together by Ministers at their last meeting in November. This means that agreement on the final Directive could be as early as the second half of 2007.
MEPs gave strong support to the modernisation impetus behind the review of the Directive and voted down more damaging amendments relating to banning the advertising of some food and limiting ad breaks. The European Commission and European Culture Ministers (the Council) must now examine the Parliament response and decide which amendments are acceptable, which are not and which could be modified slightly to gain agreement.
However, the battle is not yet won and for publishers there are still a number of areas which need clarification. These are:
a) Scope of the Directive – there is concern that publishers who have an online element to their business model could find themselves pulled into the Directive against their will. The original proposal’s wording states that electronic versions of newspapers and magazines are not included in the scope. However, many electronic titles have no print version and for most, the online version is far from a mere facsimile of a print version.
This means that AV content streamed through these web pages could be subject to the rules of the proposed Directive. Both the Parliament and the Council have made attempts to deal with this issue by stating that the ‘principle purpose’ of the service must be audiovisual.
The Council has made it clear that the rules will only apply to services which provide ‘programmes’. It then goes on to describe in detail what is meant by a programme. This seems to be the equivalent of traditional TV programmes. Since no decision has been reached on this point, there is still a danger that the final version will not be tight enough and that some Member States will interpret it in a way which brings online publishing into the scope.
b) Country of Origin – the basis of the Directive is that a certain level of rules will be set by the EU then if Member States wish to impose stricter rules, they may. This scenario worked because the Country of Origin (CoO) clause ensured that no Member State could reject programming if it complied with the law of its Country of Origin – even if it did not comply with the law of the Country of Destination (CoD).
An example of this is the fact that Swedish TV advertising may not be directed at children but broadcasting beamed into Sweden from other Member States may carry advertising to children. This is a situation which has caused conflict within the Council and a call for the removal of the CoO principle on the grounds of protection of minors.
Both the Council and the Parliament have amended the text slightly in this area, leaving a situation whereby some content could be rejected more easily. This is a problem on two levels. Any weakening of the CoO principle in general does not bode well for future debates on the review of Directives such as E-Commerce and Data Protection. Furthermore, the wording relating to web-based rather than traditional TV services makes it even easier to reject programming provided online.
The Commission now has until early in the New Year to respond to the Parliament vote. The Culture Council meets in January to discuss its position. During this time the AOP will be working to add the small changes to the text which will ensure more legal certainty for its members.
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