IRIS Special 2006 - Audiovisual Media Services without Frontiers - Implementing the Rules

Author: Susanne Nikoltchev (Ed.), European Audiovisual Observatory

Published: 01/12/2006

So far broadcasting regulation covers the wider Europe through two independent but synchronised legal instruments, namely the "Television without Frontiers" (TVwF) Directive and the European Convention on Transfrontier Television (ECTT). In their combination, these two legal instruments deal with almost all cross-border broadcasts within, into or from wider Europe, thus addressing EU Member States, parties to the ECTT and/or Third Countries as the case may be. As a result of the synchronisation, many different constellations of transborder television can be judged by almost identical rules.

The European Commission proposal for the modernisation of the TVwF Directive – regardless of the precise final formulation it is given – is likely to stir up this harmonised approach to regulation, at least until such time as the ECTT follows suit. Whereas the Steering Committee on the Media and New Communication Services (CDMC) of the Council of Europe has decided that the Convention should be "brought into line" with the new directive, it remains to be seen whether – or to what extent – the ECTT will undergo a mirror-like revision. During such a transition period, some aspects of the current proposal to revise the TVwF Directive could give rise to regulatory divergence, or at least raise some significant questions. These include the scope with regard to services covered, ancillary rules for jurisdiction, advertising, product placement, the independence of regulatory authorities and the role of co-regulation.

Working from the premise that after a revision of the TVwF Directive the rules of the two leading European instruments on broadcasting will be once more re-aligned, this publication seeks to explore the interplay between the Directive and the Convention. It will focus on monitoring and implementation issues that already gave rise to discussions in the past. The revision of the Directive matters only insofar as it may mitigate or intensify existing problems. To be clear, this publication will not deal with the concrete points that might set the two frameworks apart (points, which in any event, only become concrete after the finalisation of the revision of the Directive) until re-alignment takes place.

Part I of this IRIS Special gives a brief introduction to the history of the parallel regulation of television broadcasting provided for by the European Community and the Council of Europe. In particular, it addresses the legal implications for the EU Member States for being at the same time a party to the ECTT and obliged to respect the TVwF Directive. Looking into past experience, it deduces potential needs for additional arrangements to accommodate "double membership" after the revision of the Directive. It asks what an interim (until the Convention would be adapted) solution could look like. It examines the practical effects of the different solutions for the handling of transfrontier services targeting Europe from third countries.

As Part II of this IRIS Special confirms, any regulation is only as good as its results when applied. The European Platform for Regulatory Authorities (EPRA) has provided a forum for exchanging experiences with the application and enforcement of both the TVwF Directive and the ECTT. The discussions held at EPRA meetings revealed that in general organising the co-operation between regulatory authorities and more specifically monitoring compliance with the existing rules pose significant challenges, for which the European framework provides only limited guidance.

Various aspects have shown the need for a more structured organisation of the co-operation between regulatory authorities but also between regulatory authorities and the European Commission and the Member States: The Al Manar case underlined the demand for a co-ordinated handling of third countries that do not come under European regulation but whose broadcasts target European markets. Likewise, the idea of developing a European database on broadcasters' licenses was born out of the wish to exchange information in order to monitor compliance. Establishing a system of notification or approval of lists for major events is another long-running issue. These and other examples point to the need for practical arrangements between countries and/or regulatory authorities. They provoke a fresh look at the role of the European Commission and the Standing Committee of the Council of Europe as much as a clarification of the concrete obligations of Member States.

The widening of the scope of the TVwF Directive will necessarily have an impact on the co-ordination and co-operation issues because audiovisual media services will pose even more challenges concerning voluntary co-operation between regulatory authorities while the number of regulatory authorities involved will automatically increase.

Many of the proposed changes to the TVwF Directive arise out of general EC law and EU policies on commercial practices, competition and consumer protection, as opposed to human rights and cultural values. Therefore, Part III and Part IV of this IRIS Special examine, in turn, the predominantly commercial character of the proposed changes to the TVwF Directive, and the comparatively limited attention paid to civil, political and cultural rights. This is one area where the question of divergence between the TVwF Directive and the ECTT becomes potentially acute and where differences might become more pronounced after the envisaged revision. The emphasis for this exercise is – as stated before – the implementation and monitoring of the relevant provisions.

Part III of this IRIS Special recalls that advertising rules (qualitative and quantitative) have been a constant source of monitoring problems in cross-border relations. They become even more important with the growing number of broadcasters targeting exclusively the audience of third countries (i.e., countries other than that in which they are licensed). The question whether or not the direction of the proposed changes is likely to help overcome these problems is put forward.

Advertising rules have also been in conflict with regard to different transpositions of the European framework into national law. In this sense, an interesting aspect concerns the European Commission's Interpretative Communication on Advertising, which the proposed revision leaves intact to the extent that the underlying advertising rules will continue to apply. This raises the further question of the legal force of the Commission document. In other words what is legal relevance of the Commission's communication for the Directive and the Convention?

Part IV of this IRIS Special underlines that the monitoring of broadcasts from channels licensed outside the target country is a complex task with regard to upholding human rights and cultural values. Various problems in monitoring cross border broadcasts originate from different expectations and standards for cultural values.

Does the revision of the TVwF Directive attach sufficient importance to a culture of human rights (broadly defined)? Is there a need for the ECTT to strengthen its provisions for safeguarding and promoting human rights? In substantive terms, should we now expect a definitive "parting of ways" of the two instruments? These and other questions are addressed.

Part V of this IRIS Special links the preceding parts together by reporting on a workshop, at which the above mentioned issues of "Implementing the Regulation of Transfrontier Audiovisual Media Services" were discussed. At the same time, Part V might be read as a stand-alone summary of current challenges to regulatory authorities and the regulated industry, challenges that could well persist and even become bigger, irrespective of how future versions of the TVwF Directive or the ECTT might look.