The publications in the IRIS Special series tackle current issues in media law and related legal fields.
The themes covered are of direct practical relevance and are explored with academic rigour. The particular value of the IRIS Special series lies in its international approach or the comparison of different legal systems as the case may be. Recognised as a reliable source of information, the series has a track record of supplying both the audiovisual industry and also legislators and other decision makers at national and European level with highly useful data, overviews, ideas and analyses. The European Audiovisual Observatory publishes one or two IRIS Specials annually. Depending on their theme, they each contain 50-150 pages. In many cases, background material – standard-setting legal texts for example – is included.
The issues are available online for free in PDF file hereunder. For a print version, you may purchase it on our online shop for a cost price.
DLI IRIS Special 2009 - Ready, Set … Go?
IRIS Special 2009 - Ready, Set … Go?
Author: Susanne NIKOLTCHEV (Ed.), European Audiovisual Observatory
A better understanding of the Directive: interests to be protected
The recitals of the Audiovisual Media Services Directive mention a number of interests that the Directive wishes to serve with the Community-law framework that it lays down. In the very first recital, the Directive mentions ensuring optimal conditions of competitiveness and legal certainty for European companies and services in the context of the information technologies and the media and points out the (public) interest in cultural and linguistic diversity. Other recitals refer to the situation of small and medium sized companies or emphasise the public interest in having a right to information, the public interest in media pluralism, in the protection of minors, in consumer protection, and in enhancing public awareness and in fostering media literacy. These interests are seen in the context of the general digitisation of society, which has led both to the emergence of new services and to the need to revise existing regulations.
This IRIS Special contains a large amount of information on how national solutions take into account the various interests, especially with regard to regulating non-linear services and in areas for which national rules can be relaxed in the future. The publication answers such questions as:
• What approaches are available for promoting cultural diversity?
• What protection can be provided against hate speech and other unacceptable content? In particular
what protection can be given for underage users of audiovisual media services?
• What limits will be imposed on advertising in the future?
• What decisions will the member states take in the case of product placement?
• What will happen to the right to short reporting?
Models and organisation of the Directive’s transposition
The second yardstick for the quality of national law consists of an assessment of the intelligibility, acceptance, manageability and efficiency of the solutions chosen for implementation. Their manageability and efficiency partly depend on how flexibly a solution can react and how it fits into the existing national legal framework. In contrast to the rules of the Directive, national law must relate to and be applied to actual situations. EC directives set legislative objectives for 27 different countries, so directives mainly reflect compromises and necessarily work with general notions, broad definitions and generally worded objectives. The choice of the means for implementing these objectives is not only the prerogative of the member states but also imposes high standards on their implementation. The transposition of the general objectives into national law thus becomes both an interesting task and a difficult one to carry out.
• How do the member states handle this yardstick?
• How successful are they in transposing notions of EC law, such as linear and non- linear services, and incorporating them into existing media law?
• How do they define editorial responsibility?
• What criteria determine whether a product has been given too much prominence in a programme?
As far as the choice of regulatory approach is concerned, the Directive expressly encourages the use of co-regulation.
• For what areas is there actually a future for this form of regulation in the member states?
• How is it organised?
• When and why would a law passed by parliament perhaps be the better option?
• How detailed should legal provisions be?
• For what cases and to what extent should the regulation of specific issues or an entire set of issues be delegated to (independent) regulatory authorities?
• What rights should the citizens have to be heard with regard to the various regulatory approaches and what rights should the industry stakeholders have?
Finally, in order to transpose the Directive a number of organisational questions also have to be resolved. For example, it is necessary to lay down the rules and mechanisms that will enable co-operation between various decision-makers to take place and compliance with the law to be monitored.
• Does co-operation take place?
• Who co-operates with whom?
• Who monitors the implementation of and compliance with the rules in an individual case?
The solutions found also play an important role with regard to the quality of the Directive’s transposition.
Latest information on the state of play
This IRIS Special contains initial answers to the various questions that arise both with regard to the
transposition of the Directive and, later, the implementation of the solutions. On the basis of this information, the reader can, firstly, track the transposition of the Directive, which must be completed by 19 December 2009. Secondly, they will be able to see where some matters will still presumably need to be clarified and, therefore, action taken after this deadline has expired. Thirdly, their attention is drawn to the question of what interests might clash with one another in actual cases. This IRIS Special provides facts and guidance on all these questions while at the same time leaving it up to the reader – that is to say, you personally – to judge the winner of the “competition” for the best transposition of the Directive.
It was a particular challenge for this IRIS Special that the transposition period had not yet expired by the time we went to press, although a number of states had already adapted their legislation. If the speed of transposition were taken as the benchmark, the race photo would show Romania as the clear winner. However, it remains to be seen whether Romania’s decision to adopt more or less the same wording as the Directive has satisfactorily solved the task set. In the meantime, other states have partly or fully completed the transposition. For example, Belgium’s Flemish Community passed the Decreet betreffende radio-omroep en televisie (Broadcasting Decree) on 27 March 2009, thus following the example of the country’s French-speaking Community, which had already completed the transposition in February. In June 2009, Luxembourg transposed into national law the rules concerning advertising, sponsorship teleshopping and self-promotion. More countries will be added to the list tomorrow – it should be pointed out that most of the contributions to this IRIS Special were completed at the end of February 2009.
A number of events that might become relevant for the issues discussed here have since taken place in countries that have not yet completed the transposition process. For example, the new Irish Broadcasting Bill was passed by the Dáil Éireann (the House of Representatives) on 18 June 2009 and is now in front of the Senate. A draft law has now been put before the Dutch parliament, and the government intends to complete the transposition of the Directive by 19 December 2009. In Germany, the draft of the 13th Interstate Treaty amending interstate broadcasting treaties (Rundfunkänderungsstaatsvertrag) was discussed on 4 June by the Conference of Land Prime Ministers and was largely approved. There is still no consensus on whether public service broadcasters should continue to be allowed to carry product placements free of charge, so a final decision on the treaty is not expected before October at the earliest. The Italian parliament is discussing a draft law (legge comunitaria) that would empower the government to issue a decree on the transposition of the Directive within twelve months. As reported in this IRIS Special, France is one step ahead of Italy with its Law of 5 March 2009, which lays down the basic principles of the transposition and leaves the enactment of detailed provisions to future legal instruments. However, there is so far neither a concrete timetable nor has a draft of such a legal instrument been published. In the United Kingdom, the finishing touches are being made to the AVMS Directive (Implementation) Regulations, which will ultimately instruct the national regulatory authority Ofcom to oversee the implementation. In Denmark, a hearing is due to take place at the end of the summer, after which a draft law could be placed before parliament in early October. No legislative activities of any consequence can be reported as far as a number of countries are concerned, including Spain. Fundamental debates are still taking place in Hungary. Although a draft bill was presented to parliament in early June, it is highly unlikely to obtain the necessary support of two-thirds of MPs, so that the transposition is still very much in its early stages in that country.
None of the latest developments have any impact in terms of content on the information and analyses contained in this publication. These announcements thus confirm that this IRIS Special is about fundamental issues that will occupy minds in the audiovisual sector for a long time to come.
Structure and genesis of this publication
This IRIS Special deals with 14 themes in 14 separate chapters, each of which contributes to a better understanding of the Directive and the demands it makes with regard to its transposition into national law. The chapters contain many facts, examples and analyses, and the information provided will remain of considerable relevance beyond the actual transposition date. Twelve of the contributions were presented and discussed at a workshop, and this exchange of views and information has been summarised in a report that precedes the individual contributions as an additional chapter. Two contributions were written after the workshop to complement this IRIS Special since their importance became clear during the discussions.
In this IRIS Special, insights gained at a workshop are presented for the ninth time in the form of a
stimulating and highly up-to-date publication. The Observatory and its partner organisation the Institute for European Media Law (EMR) invited a small group of selected experts to the workshop on which this publication is based. We therefore particularly wish to thank the EMR, which spent many hours on the joint planning and organisation of the workshop and was its outstanding host. Our EMR colleagues are also responsible for the workshop report and have assisted the Observatory with the editorial work. Equally indispensable was the support provided by all the workshop participants and, of course, above all the authors of the contributions, who did not shy away from the months of editing and translation. We trust you will benefit from the knowledge and the exchange of ideas of everyone who has contributed to this IRIS Special.