Editor's note

The Directive provided a modern set of rules for Europe's audiovisual industry covering all audiovisual media services – traditional as well as online. It also created less complicated and more flexible the EU rules on TV advertising, and focused on future trends to make it easier for service providers to finance their programs and for users to recognize commercial messages.

Background

An “audiovisual media service” in the EU context is a service provided by a various media service providers. This service can either be a linear program with a program schedule (on TV or over the internet as IPTV) or an on-demand service (video on demand or catch-up TV).

Such services must come, generally, under the editorial responsibility of a media service providing programs.

This definition covers TV programs and on-demand catalogues of TV-like content, as well as commercial audiovisual communication (advertising, in other words) but does not apply to any non-economic activity like non-commercial bogs, nor any form of private correspondence or radio. Platforms for the exchange of user-generated content, such as YouTube, do not fall within the scope of the Directive if there is no editorial control over the selection of programs for a broadcast schedule.

The new "Audiovisual Media Services" Directive replaces the old “Television without Frontiers” Directive, which was last amended in 1997. It preserves the core principles of the existing television rules and adapts them to the new audiovisual environment and services including the protection of minors and consumers, fight against hatred, promotion of European content, increased accessibility and an improved right to information through the right to short reporting. The underlying goal of the Directive remains the same: providing a single market for audiovisual content with European standards for “traditional” and new services so that national borders are no longer obstacles for viewers and users.

 Consumers will also benefit directly from updated rules on advertising. The Directive strikes a balance between protecting viewers from excesses and stimulating revenues for media companies. It limits the amount of television advertising spots to twelve minutes per hour while allowing for more flexibility with regard to the insertion of spots between and sometimes in programs. It also improves the level of consumer protection by establishing qualitative advertising rules for on-demand services.

Audiovisual Media Services Directive: main guidelines

The aim of the Audiovisual Media Services Directive is to provide a modern, competition-friendly set of rules for Europe’s providers of TV and TV-like services, by giving more flexibility for financing audiovisual content with new forms of advertising, for example. While continuing to ensure a high level of consumer protection the new Directive also creates a level playing field for all companies that offer on-demand audiovisual media services, allowing them to profit from Europe's single market, regardless of the technology they use to deliver their services.

Thus, the main elements of the Directive are:

- a comprehensive set of rules covering all audiovisual media services that reduce regulatory red tape and promote industry self- and co-regulation;

- modernized rules on television advertising that make it easier to finance audiovisual content, combined with standards protecting consumers and ensuring the integrity of content;

- new rules on short reporting (i.e. on the use of short extracts for news report of footage of events that are otherwise subject to exclusive rights) and

- Consumer rules such as obligations for media service providers to improve access for people with visual or hearing impairments.

Member States have two years from the entry into force of the Audiovisual Media Services Directive to transpose its provisions into their national legal systems. The modernized rules for Audiovisual Europe will fully apply in December 2009.

Some countries have already completed the necessary steps to fully implement the new Directive, as well as the EEA countries (European Economic Area) and the candidate zcountries; some are in the process of putting it in place. In some Member States, the governments are in the process of completing consultations in others, drafts of the new rules are in parliamentary procedures for adoption. Austria and Malta have already implemented some of the new rules, notably advertising rules.  

TV channels in the EU

The television landscape in the Union is becoming more diversified and has reached considerable scope: over 4 000 TV channels are active in the 27 EU Member States. .About 350 can be classified as "mainstream" national channels (both public and private); about 1 750 channels distributed via cable, satellite, IPTV and mobile platforms are more specialized and almost 1 300 channels are considered as regional, territorial or local. About 650 channels are specifically aimed at trans-national audiences.

On demand-services are rapidly expanding in the EU. They currently number over 400. Internet is the main distribution platform – 260 services – followed by IPTV services – about 100 – and by services distributed via cable connections – about 50. There are about 10 VOD services delivered by satellite and 2 operate in one country on a digital terrestrial platform.

A single market for TV and TV-like services will give European viewers greater choice and more quality programs. Enlarging this market to on-demand services will make it easier for users to watch what they want, when they want.

The new Directive also sets out transparency obligations for service providers so as to ensure that they can be held liable for their actions. This obliges service providers to identify themselves so that editorial decision-makers can be held to account. There is a provision requiring all audiovisual media services to increase their accessibility for people with a hearing or viewing disability (e.g. through sub titling or audio description).

Access to short extracts for news reports of events of high importance, otherwise subject to exclusive rights, is ensured and promotes the public's right to information.

The Directive also encourages providers of children’s programs to develop codes of conduct on the inappropriate advertising of foods and beverages containing nutrients and substances with a nutritional or physiological effect, excessive intakes of which are not recommended.

Directive’s effect on advertising on TV

The Directive introduces a set of rules for commercial communications across the new audiovisual environment. As a result, users now benefit from general requirements that make advertising and commercial messages readily recognizable, protect human dignity, and abstain from using surreptitious and subliminal techniques.

The amount of advertising spots will remain limited to 12 minutes in any given hour, so that viewers will not be overwhelmed with excessive advertising. Films, current affairs programs and news cannot be interrupted by adverts more than once for each period of 30 minutes. Children's programs over 30 minutes may be interrupted only once in each 30-minute period. However, service providers are given more flexibility regarding advertising breaks during other types of programs, notably with the abolition of the rule obliging broadcasters to have 20 minutes between each break during the same program.

Member States have to ensure that neither the integrity of programs nor the rights of the copyright owners are prejudiced when advertising or tele-shopping spots are inserted. This means that ad breaks should take account of programs’ natural breaks, duration and type.

The Commission also assists the member states to transpose the Directive into the national law. It organizes regular discussions with national administrations in the framework of a “Contact Committee”, as well as in ad hoc meetings with Member States’ independent regulators.

Under the new Directive, the rules for television advertising were updated and general rules for product placement introduced.

On-demand, services are provided for the viewing of programs now chosen by the individual user from a catalogue. For these services, the Directive limits itself to establishing rules for the safeguarding of essential public interests like protecting minors, encouraging cultural diversity, ensuring essential consumer protection and preventing incitement to hatred.

In other words, the Directive applies lighter-touch regulation to on-demand services, taking into account the increased degree of choice and user-control over the service. This also reflects the relative impact they have on society as a whole.

Changes in the audiovisual sector

The Audiovisual Media Services Directive will contribute to the growth of EU’s audiovisual industry in several ways:

- by strengthening the economic base for the audiovisual industry, thanks notably to more flexible rules on TV advertising , as well the recognition of new forms of advertising such as split-screen, virtual or interactive. This includes more flexibility for broadcasters to insert spot advertising and scrapes the old rule that imposed a time period of twenty minutes between each advertising break. The special nature of films, news and children's programs are taken into account in the new rules.

- by establishing a clear framework for product placement, which presently benefits mostly non-European content producers, without viewers being suitably informed of its presence. The Directive opens up new revenue sources for Europe’s audiovisual providers and producers and helps to boost Europe’s creative economy and reinforce its cultural diversity, while ensuring that viewers are adequately protected in particular through adequate information when product placement is used in a program.

- by extending the “country of origin” principle to on-demand audiovisual media services. This principle has been the cornerstone of the development of Europe’s broadcasting industry since 1989. Each service must comply only with the rules of the country in which its provider is established, making it easy for service providers to identify the rules that apply to them and opening up markets to cross-border competition. For on-demand services this principle will apply across the EU with a minimum of necessary harmonization, creating a level playing field in the single market, increasing investment in Europe's audiovisual industry and providing greater choice and diversity for Europe's consumers.

On product placement

As a basic principle, product placement is prohibited. There is no exception to this rule for tobacco products and specific prescription medicines. Exceptions are however provided for paid product placement in cinematographic works, films and series made for audiovisual services, sports and light entertainment programs, unless a Member State decides otherwise for broadcasters under its jurisdiction. Product placement is also admissible where it consists of the provision of certain goods or services free of charge, such as production props and prizes. This type of unpaid product placement is also allowed in children's programs.

Product placement is governed by presentational rules. The content and the scheduling of programs that contain product placement should not influence a provider's responsibility and editorial independence. Programs should not directly encourage the purchase or rental of goods or services, nor give undue prominence to a product.

Viewers must be clearly informed if there is a product placement at the start and/or at the end of a program, as well as after advertising breaks.

Product placement has become common practice in independently produced works and feature films. The absence of EU-wide rules was an obstacle to the single market. Not only did this lead to unclear or divergent rules on product placement and prevent audiovisual content producers from making use of this important source of financing, but it also failed to adequately protect consumers, who have the right to know what kind of content they are watching.