The revised version of the Television without Frontiers Directive of 1989 came into force Dec. 19, 2007, under the new name “Audiovisual Media Services Directive.” The objective of the new regulations is to strengthen the competitiveness of European media companies and to improve legal certainty. The Directive has to be implemented into national law by Dec. 19, 2009. In Germany, this will primarily be achieved through an amendment of the Interstate Treaty on Broadcasting (Rundfunkstaatsvertrag). In particular, co-regulation will be emphasized as a concept of the implementation. Co-regulation means that the providers’ self-regulation is combined with government intervention. The German Interstate Treaty on Protection of Minors in the Media is an example for co-regulation.
The scope of application
Until now, the Directive was only applicable to television, including analogue and digital television, live streaming, web casting and near-video-on-demand. The revised version uses a broader definition of audiovisual media services and also includes nonlinear distributed programs, i.e., on-demand services. These services have been included in the Directive because they are “television-like”: they compete for the same audience as television broadcasts, and the user can reasonably expect the same regulations. The definition covers media services that are under the editorial responsibility of a provider, and that have the character of mass media. The rules on advertising and youth protection are stricter for television broadcasts than for on-demand media services: only a basic tier of rules applies to the latter.
A controversial debate was caused by the adoption of regulations concerning product placement. In case of intent to advertise, product placement is prohibited in Germany, i.e., in particular, in case of a consideration for the placement. Germany claimed a complete EU-wide interdiction of product placement. This proposal was not accepted, but certain restrictions have been introduced.
Product placement will be allowed under certain circumstances unless a Member State decides otherwise. Product placement is permissible in cinematographic works, films, series, sports programs and light entertainment programs excluding children’s programs, or where there is no payment, but only the provision of certain goods or services free of charge with a view to their inclusion in a program, such as production props and prizes.
Programs that contain product placement will have to meet certain requirements. Editorial liability and independence of the provider must be ensured. The programs may not directly encourage the purchase or rental of goods or services, in particular by making specific promotional references to those goods or services. They shall not give undue prominence to the product in question. Viewers must be clearly informed of the existence of product placement. Programs containing product placement need to be appropriately identified at the start and end of the program, and when a program resumes after an advertising break, in order to avoid confusion of the viewer.
It can be assumed that the German federal states will continue to prohibit product placement.
In all audiovisual media services, advertising and teleshopping shall be readily recognizable and distinguishable from editorial content; surreptitious advertising, subliminal influence, as well as advertising for tobacco products and medicines only available on prescription are prohibited, and advertising for alcohol is restricted.
The restrictions on the length of the advertising regarding the entire daily television broadcasting time have been abolished. However, the proportion of advertising and teleshopping spots within a given clock hour may still not exceed 20 percent. The coherence of the broadcast may not be affected. The minimum time segment of the broadcast of films and news after which an advert break is permissible is shortened from 45 to 30 minutes. Individual advertising and teleshopping spots remain possible only as an exception, but broadcasting of sporting events is excluded from this restriction.
Short news reports
The Directive requires that for the purposes of short news reports, any broadcaster established in the Community shall have access on a fair, reasonable and non-discriminatory basis to events of high interest to the public that are transmitted exclusively by a broadcaster under the jurisdiction of the Member States.
Unlike the current German provisions, the broadcaster shall have direct access to the transmitting broadcaster’s signal. In Germany, a broadcaster has the possibility to obtain access to the event. In case he is not admitted to the event, the broadcaster may claim access to the signal from the admitted broadcaster against compensation for expenses. However, every Member State may establish an equivalent system that achieves access on a fair, reasonable and non-discriminatory basis through other means, so that the German provisions are likely to remain in effect.
Provisions on protection of minors
The directive contains regulations on the protection of minors from advertising for unhealthy and unsuitable food stuffs and beverages, and other protective measures. The Member States may apply more detailed or stricter provisions.
Country of origin principle
As a rule, service providers are subject to the laws of their country of origin (country of origin principle). However, Member States can interfere in case of particular material breaches.
If a Member State finds a breach of stricter national law within the content of a foreign program that is entirely or mostly aired in this Member State, it may contact the Member State having competence over this provider. The latter will then request the provider to comply with the stricter national rules of the targeted country. If the broadcaster does not comply with such request, and intends to circumvent these stricter national provisions by having its seat in the neighboring country, the objecting Member State may take appropriate measures – e.g., blocking orders in the area of youth protection – which must be reviewed by the Commission.