The Revision of the Television Without Frontiers Directive: taking Convergence seriously

2005-10-15

According to the Commission Communication "i2010 -A European information society for growth and jobs"(June 2005), an integrated approach to information society and audiovisual media policies in the European Union (EU) is a necessity that should not be ignored by European institutions. New and certain legal frameworks are required in order to encourage the performance of new services and the availability of a wide range of plural contents for European citizens.

In this context, the revision of the Television without Frontiers Directive (Directive 89/552/EEC, hereafter TWF Directive) becomes a key factor in order to modernise the present rules on audiovisual media services. In particular, a new regulatory approach seems required as far as the undergoing digital convergence among communication networks, media, content, services and devices is changing the scope and dimension of any regulation concerning audiovisual communication issues.

This revision of the TWFD has been the object of a long process of discussion, including public consultations, meetings with experts and within the European Council, seminars, and many bilateral contacts. At present time, a specific public consultation is taking place in order to prepare a major audiovisual conference co-organised by the European Commission and the UK Presidency . In this short paper I will try to point out those that seem to be the most important elements at the present stage of the debate.

Redefinition of Audiovisual Communication

The first important issue at stake has to do with the material scope of the new rules. That is to say, a possible redefinition of the notion of audiovisual communication. At present time, the TWF Directive is applicable to the provision of audiovisual services provided within a linear scheme: i.e., services that are scheduled or, in other words, where there is a succession of programmes organized according to the criteria of the responsible editor. A new and wider definition of audiovisual services (the so-called, according to some proposals, "Audiovisual content services" would include any form of electronic delivery of audiovisual content. According to this, any delivery of moving pictures with or without sound to the general public by electronic networks (including, for example, video-on-demand, web based news services and other on-demand services where viewers are able to choose the specific content they wish at any time) will be added to services already falling under the scope of the Directive, such as traditional television, web-casting, streaming and near-video-on-demand. Only individual and private communication would be excluded from this notion of audiovisual content services.

This being said, a second key issue would be the identification of the new rules that should apply to this broader definition of audiovisual services. Despite the need of introducing some degree of flexibility and updating definitions and regulations applicable to the providers of linear audiovisual services, it seems that a basic tier of obligations should cover all kinds of audiovisual content services, in particular in areas such as the protection of minors and human dignity, identification and other qualitative obligations regarding commercial communications, rights of reply and basic identification/masthead requirements.

Concerning the important field of cultural diversity and promotion of European and independent audiovisual production, it has to be pointed out, first of all, that the present provisions included in the TWF Directive (articles 4 and 5) have generally been considered to be an effective and stable framework for promoting European and independent production. However, it is still to be clarified in what degree these rules, and in particular, the obligations they include, should be extended to the non-linear audiovisual services (if the new Directive finally includes them within its scope). In any case, it seems that in this last area the introduction of, at least, some kind of soft or non-binding instruments would be necessary in order to accompany and stimulate the contribution of these new services to the production and promotion of European works.

Protection of minors and human dignity (in particular, incitement to hatred) is also another important sphere of discussion in the definition of the future of the European regulatory audiovisual policy. As the European Commission has clearly pointed out in a Communication of 2003, "it the basis of the rules on the protection of minors and human dignity, which are laid down in the Directive, there are fundamental principles which could be seen as policy objectives valid for any kind of delivery of audiovisual services"

That is to say, even if it is true that some of the provisions included in article 22 of the TWF Directive can only reasonably be applied to linear broadcasters, the imposition of certain limits in order to protect values such as the development of minors or human dignity has to be undertaken from a neutral perspective and therefore include all kinds of audiovisual services. This being said, it should be kept in mind that the definition of some of the notions involved (in particular, incitement to hatred on grounds of race, sex, religion or nationality) is mainly under the responsibility of Member States according to their constitutional, legal, and moral values. On the other hand, it is clear that in the definition and application of these rules (in particular, those that should apply to new services), the use of techniques of self and co-regulation can be very helpful, and in fact we already have some examples and experiences available in this area.

Commerical Communications

Another important area of discussion includes commercial communications. Probably this is one of the issues where technological changes derived from digital convergence will have an important influence and will require the adoption of new and probably more flexible regulations. It must be kept in mind that this is an area where codes of conduct and co-regulation procedures have started to play a very important role. This matter should be specially taken into account in the revision of the Directive and by Member States when transposing it.

On the other hand, while it is not possible to extend the application of most of the existing quantitative rules concerning commercial comunications to non-linear services (that is to say, rules concerning time devoted to advertising and teleshopping spots), it is necessary to discuss whether it is necessary to define and update a complete set of qualitative rules that would cover all kinds of audiovisual commercial communications (thus, including a wide range of formats such as conventional advertising slogans, promotional sponsorship slogans, teleshopping, split screens, interactive advertising or product placement).

At present time, and according to the different documents produced and all the discussions taken place, a broad consensus can be perceived on the fact that there are some qualitative aspects of commercial communications that should be tackled (that is to say, updated, and in some cases, just maintained) within the revision of the TWF Directive: in particular, concerning human dignity and the protection of minors, public health considerations (tobacco, alcohol, medicines), and the identification of commercial and sponsored content.

Media Pluralism

A final and very delicate issue within the framework of the revision of the TWF Directive is the discussion about the new role of the European Union concerning the maintenance and the development of media pluralism. First of all, it must be pointed out that at present time the safeguard of media pluralism is at the core of different communication policies developed at many levels: in particular, Member States and international organizations such as the Council of Europe. At the level of the European Union, on one hand, the application of competition law has played a certain role in order to prevent the creation of abuse dominant position and to facilitate access for new entrants to media markets, but on the other hand, the broader protection of media pluralism within democratic societies has been considered as a responsibility of Member States.

However, the truth is that some European institutions, in particular the European Parliament, have expressed their concern and outlined the need for Community actions in the field of pluralism and media concentration accepting, however, that after many years of separate action, it is really difficult now to harmonize EU Member States rules. In any case, it seems that the future implementation of some soft policies such as the establishment of an Observatory focusing on media markets and concentration and the encouragement of research and studies examining levels of internal pluralism and the impact of ownership and political influence could be considered and accepted as useful steps towards a more harmonised pluralism policy.

■Dr. Joan Barata
Professor
Department of Administrative Law,
University of Barcelona
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