European Union (‘EU’) Directives set out common elements to be included in the regulatory framework of member states. This note describes what EU Directives on broadcasting and related issues are in force and how they have been implemented.
Television Without Frontiers Directive (‘TWF Directive’)
Given the pervasiveness of cross-border broadcasting, and the potential for regulatory duplication, EU member states adopted the Television without frontiers Directive (89/552/EEC), which provides that all broadcasts should respect the law of the originating state, but that the reception or re-transmission of a broadcast from one Member State is not to be restricted in any other member state. It also provides that national regulation must reflect certain minimum standards on advertising and programming. The Directive, which was adopted in 1989, was implemented in the UK through the Broadcasting Acts (1990 and 1996). The main provisions are:
Jurisdiction/regulation (Article 2). Every member state must regulate the transmissions of broadcasters under its jurisdiction in accordance with its national law but the reception or re-transmission of a broadcast may not be regulated by the receiving state. The only exception is for the blocking of services which harm minors or incite hatred (i.e. breach Articles 22 or 22a). The ITC has used this provision to restrict the re-transmission in the UK of pornographic channels, following notification by the Secretary of State that the programme content was unacceptable.
Programme quotas (Articles 4-9). Member states are required to ensure that services, where practicable, transmit a majority of European material excluding news, sports events, games, advertising and teletext services. At least 10% of such transmissions must consist of European works made by independent producers. These requirements are to be achieved progressively and must be implemented by earmarking an adequate proportion for recent works (i.e. transmitted within 5 years of production). For the UK’s terrestrial broadcasters, these quota requirements are incorporated as licence conditions and are enforced by the ITC. However, for cable and satellite channels, the Department of Culture, Media and Sport is responsible for enforcement.
TV advertising and sponsorship (Articles 10-21). Advertisements must be clearly identifiable between programmes or in natural breaks. Advertising of alcohol is limited, and there are bans on advertising tobacco and prescription medicines. Minors must be protected. Programme sponsors must be identified and may not influence the scheduling or content of programmes. News and current affairs programmes may not be sponsored. Spot advertising is limited to 15% of daily transmission time and to 20% in any one-hour period. These provisions are implemented in the UK through several ITC codes including the Code on Advertising and Sponsorship.
Protection of minors (Article 22). Member states must prevent broadcasters under their jurisdiction from broadcasting programmes which might seriously impair the physical, mental or moral development of minors, particularly those involving pornography or gratuitous violence.
Right of Reply (Article 23). This asserts a right of reply or ‘equivalent remedies’ for anyone whose legitimate interests have been damaged by an assertion of incorrect facts in a TV programme.
Amendments. Following a review of the Directive, some changes were made in 1997 (Directive 97/36/EC) to clarify and update the original directive, notably as regards member states’ jurisdiction over broadcasters, to introduce new rules governing teleshopping, to increase protection for children and to ensure broadcasts do not contain incitements to hatred on the grounds of race, sex etc. In addition, the Directive covers the broadcasting of sporting events, setting out a framework to facilitate free access by the public to major events, both national and other (such as the Olympic Games). The revisions have been enacted by secondary legislation in UK law.
Copyright Directives
There are a number of Directives dealing with copyright issues, including rental rights (91/250/EEC as amended by 93/98/EEC), satellite broadcasting and cable transmission (93/83/EEC) and the legal protection of conditional access services (98/84/EC). Other key copyright Directives cover harmonisation of the term of copyright (93/98/EEC) and certain aspects of copyright in the information society (2001/29/EC). However, the ITC does not have functions stemming from these Directives.
Electronic Communications Networks and Services Directives
Following its 1999 Communications Review, the European Commission introduced a new regulatory framework for electronic communications networks and services to liberalise and harmonise the markets for telecommunications and to address the growing convergence between broadcasting and telecommunications. The legislative framework resulting from this review is comprised of 5 key Directives:
Directive on a Common Regulatory Framework for Electronic Communications Networks and Services (‘Framework Directive’ 2002/21/EC). This aims to establish a harmonised regulatory framework across the EU, providing for independent national regulatory authorities (NRAs), and setting out principles for them to follow. It covers all forms of network, including fixed and mobile telecommunications networks and terrestrial, cable and satellite transmission networks. It does not cover any form of content, including broadcast programme services and e-commerce services. The Framework Directive contains the key provisions pertaining to the defining of relevant communications markets and the assessment of market power. It also incorporates measures designed to achieve interoperability between different TV systems and allows Member States to introduce spectrum trading. Finally, it provides for NRAs to work together and with the European Commission on the implementation of this regulatory framework.
Directive on the Authorisation of Electronic Communications Networks and Services (‘Authorisation Directive’ 2002/20/EC). This replaces the variety of national licensing procedures with a single general authorisation, subject only to such conditions as are necessary for the efficient use of limited resources, such as radio spectrum and telephone numbers, and to secure obligations on network and service providers with significant market power (SMP) or those designated to provide universal services.
Directive on Access to, and Interconnection of, Electronic Communications Networks and Associated Facilities (‘Access Directive’ 2002/19/EC). This provides that ex-post competition rules should apply to commercial negotiations for access to networks in all markets except those which have been recommended for investigation by the European Commission. NRAs are responsible for defining these markets according to national conditions, determining which companies have SMP in these markets, and assessing what ‘access’ obligations should be imposed on such companies to prevent the distortion of competition. The Access Directive provides that conditional access services (i.e. for accessing a pay-TV platform’s set top boxes) are to be supplied on fair, reasonable and non-discriminatory terms. It also provides for a standard widescreen format (16:9), and requires that, in order to facilitate interoperability digital televisions sold in the EU must comply with an EU standard.
Directive on Universal Service and Users’ Rights relating to Electronic Communications Networks and Services (‘Universal Services Directive’ 2002/22/EC). This consolidates and updates existing EU law to modernise the definition of universal service and provide a process for further changes. It provides for NRAs to regulate the retail tariffs of providers with SMP. It authorises Member States to continue to impose on network operators ‘must carry’ requirements for carriage of public service broadcasting. It also provides that all digital TVs sold in the EU and capable of de-scrambling digital TV signals shall comply with a common European standard.
Directive concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (‘Data Privacy Directive’ 2002/58/EC). This aims to prevent the misuse of information which could be acquired by network providers (e.g. the location of mobile telephone users), to prevent unsolicited communications (e.g. direct marketing by e-mail or telephone), and to ensure the consent of subscribers to the use of personal data (e.g. inclusion of numbers in telephone directories).
Further References
ITC notes: Digital Television (32)
June 2003
|