Television Without Frontiers: the Convention and the Directive
Much as its being
talked about, few around these parts know what Television Without Frontiers
is about (most of whom are media professionals). The main instrument of
European television policy sure would deserve much more attention so BO
is trying to cut through the ignorance.
Adopted in 1989,
the European Convention on Transfrontier Television lays down a
number of rules for the free and unhindered circulation of television
programmes across the countries which are Parties to this Council of Europe
treaty. As of 1st January 2003, 25 European States have ratified the Convention
and are therefore bound by it: Austria, Bulgaria, Croatia, Cyprus, Estonia,
Finland, France, Germany, Hungary, Italy, Latvia, Liechtenstein, Lithuania,
Malta, Norway, Poland, Portugal, San Marino, Slovakia, Slovenia, Spain,
Switzerland, Turkey, United Kingdom and the Holy See.
The main objective pursued by the Convention is to encourage the free
circulation of television programmes on the basis of a number of commonly
agreed standards (linked to the fundamental values of the Organisation)
and thus to promote the free exchange of information and ideas.
The Convention applies only to programmes of a transfrontier nature/dimension1,
that is, to television programmes which emanate from one Party and can
be received, directly or indirectly, in one or more other Parties. The
technical means by which the programme is transmitted is not relevant
(cable, satellite, terrestrial transmitter, etc.), the only essential
factor being that the programme is transmitted intentionally by a broadcaster
to another country or is received in that country unavoidably, for example
due to an overspill of the signal beyond the national borders of the broadcaster.
Therefore, it is a purely factual criterion that determines when a programme
is considered transfrontier: that is, when the programme goes beyond the
national borders.
A basic principle of the Convention is that it guarantees freedom of reception
and retransmission, that is, Party's to the Convention must ensure freedom
of reception and not restrict the retransmission on their territories
of television programmes which are in conformity with the Convention's
standards. Article 4, which embodies this principle, is therefore one
of the fundamental ones in the Convention, since it secures freedom of
expression and information.
Television Without Frontiers: the Directive
The Convention served as a basis for the preparation of the "Television without Frontiers" Directive (89/552/EEC). Nota bene: the Convention provides a pan-European framework for the free circulation of television programme services, but does not regulate domestic broadcasting activities as such. This is precisely the fundamental difference between the Convention and the "Television without Frontiers" Directive: the Convention only applies to transfrontier programmes whereas the Directive applies to both domestic and transfrontier broadcasting in the EU member States. However, given that many broadcasting services which are initially created with a domestic intention become transfrontier out of the fact that they are transmitted or can be received in another country, the Convention rules therefore also apply to such services.
Further Developments
Since the adoption of the Convention in 1989, a number of important changes in the broadcasting sector have taken place, in particular as a result of technological developments. It was therefore considered necessary to amend the Convention to take account of these developments, as well as to maintain a coherence with the "Television without Frontiers Directive", which was also revised in 1997. The protocol amending the Transfrontier Television Convention was adopted by the Committee of Ministers of the Council of Europe on 9 September 1998, and entered into force on 1 March 2002.
Main dispositions
Right of reply
If a person's reputation or good name has been damaged by an assertion
of incorrect facts in a television programme in a country Party to the
Convention, the reply, correction or rectification of those statements
should be made possible (or a comparable legal or administrative remedy).
Pornography, violence
and protection of minors
Article 7 aims at the protection of human dignity and fundamental rights
and lays down the general responsibilities regarding the content of programmes.
The article provides that programmes should not contain pornography, should
not incite to racial hatred and should not give violence an unnecessary
prominent place.
This being said, the Convention does not establish a system of State interference
in the content of programming, and leaves the Parties free to decide how
they are to comply with such obligations (in accordance with their constitutional/legal
system as well as traditions and cultural sensitivity).
It is also mentioned that programmes which may impair the physical, mental
or moral development of children should not be scheduled at a time when
children or minors are likely to watch them (watershed principle).
Events of major
importance
The revision of the Convention in 1998 included the right of broadcasters
to broadcast, in their scheduled news programmes, short reports of any
event which they consider to be of high interest to their public (even
in cases where another broadcaster has acquired exclusive rights to such
an event).
The revised Convention also introduced a framework to guarantee the public's
free access to the broadcasts of events of "major importance for
society" (an important innovation)2.
Each Party is entitled to draw up a list of events which it considers
are of major importance for society. Such events have to be broadcast
unencrypted and on free television -even if exclusive rights have been
bought by a broadcaster- provided the list of events has been approved
by the Standing Committee which implements the Convention. The system
is based on the principle of mutual recognition, which means that Parties
will have to ensure that broadcasters under their jurisdiction respect
the list of events drawn up by another Party. It should be noted that
the Convention and the revised "Television without Frontiers"
Directive have been completely aligned on this point.
Promotion of European
works
With the aim of supporting European audiovisual programme production,
Article 10 stipulates that broadcasters should reserve, "where practicable
and by appropriate means", a majority proportion of their transmission
time for the broadcasting of "European works" (national and/or
European co-productions of films, fiction, series, documentaries, arts
and educational programmes, etc). The Convention uses the wording "where
practicable", which allows for a certain flexibility on this provision.
The Directive however is more strict: broadcasters must reserve at least
10% of their transmission time or 10% of their programming budget for
European works from independent producers (Article 5).
Television advertising,
teleshopping and sponsorship
As regards duration of advertising (time-limits), the revised Convention
establishes that advertising and tele-shopping spots should not exceed
20% of a given clock hour, and that all forms of advertising together
should not exceed 20% of the daily transmission time. Self-promotional
announcements are assimilated to advertising but are not counted for the
purpose of calculating the percentage of advertising time.
As regards the insertion of advertising and teleshopping, it is stipulated
that it should be done between programmes, or during programmes under
a number of conditions (so that the integrity and value of the programme
is not prejudiced). For instance, feature films can be interrupted once
for each complete period of 45 minutes and news, documentaries, religious
or children's programmes should not be interrupted if they last less than
30 minutes.
There are also a number of rules concerning advertising of particular
products. The Convention forbids advertising for tobacco products, medicines
and medical treatments that are only available on prescription. Advertising
for alcohol is permitted under a number of conditions: that it does not
particularly address minors, does not link consumption to physical performance,
does not claim that alcohol has therapeutic qualities or presents abstinence
in a negative light. The Directive, however, forbids the advertising of
alcoholic beverages completely.
The Convention rules on sponsorship say that a programme sponsor should
be identified with appropriate credits at the beginning and/or end of
the programme and that the sponsor should not influence the content and
scheduling of programmes. In addition, it is not permitted to make promotional
references to the products or services of the sponsor or to sponsor news
and current affairs programmes.
Implementation
of the Convention
The implementation of the Convention relies on the principles of mutual
assistance and co-operation between the Parties. A "Standing Committee
on Transfrontier Television" has been set up to monitor the implementation
of the Convention and to act as a forum for the exchange of views on developments
in the broadcasting sector. The Standing Committee is composed of representatives
of the Parties and meets around 3 times a year in Strasbourg to discuss
difficulties regarding the application of the Convention. Upon request,
it can intervene to seek a friendly settlement of such difficulties or
formulate opinions on how certain provisions of the Convention should
be interpreted. Council of Europe member States that are still not Parties
to the Convention can also participate in the meetings of the Standing
Committee as observers.
These are the main lines of the Convention and the Directive. As a result
of the combination of both, a coherent legal space for the broadcasting
sector in Europe is created, and the conditions for the free movement
of television services in Europe are clearly laid down.
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1 Jurisdiction criteria: a number of criteria are provided in Article 5 to determine the place where a broadcaster is established, the first one being the country where a broadcaster's "head office is located and where management decisions concerning programming are taken". A Party to the Convention must ensure that all broadcasters that come under its jurisdiction comply with the Convention. Under the "country of origin principle" it is understood that broadcasters are only subject to the jurisdiction of the originating State, without the need of having secondary control in the receiving Parties.
2 In fact, this right had already been recognised in Recommendation No. R (91) 5 on the right to short reporting, but not in a legally binding form as is the case now.