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Report | Doc. 11775 | 18 December 2008
The regulation of audiovisual media services
(Former) Committee on Culture, Science and Education
Summary
Technological progress of electronic audiovisual media has led to legislative changes at national level as well as to a new Directive on Audiovisual Media Services for the member states of the European Union (AVMS Directive) and means that it is necessary to revise the European Convention on Transfrontier Television of the Council of Europe.
While the AVMS Directive has the main objective of ensuring freedom of services within the internal market of the European Union, the Council of Europe’s Convention seeks to ensure freedom of transmission and retransmission of broadcasting in Europe regardless of frontiers in accordance with Article 10 of the European Convention on Human Rights.
It is, therefore, proposed that the current revision of the Convention should respect this freedom and give a stronger role to the body supervising the implementation of the Convention. In addition, action is proposed regarding the allocation of radio-frequency spectrum, public service broadcasting and the independence of regulatory authorities for electronic media.
A. Draft recommendation
(open)1. The Parliamentary Assembly
of the Council of Europe recalls that all media regulation in Europe
must respect the right to freedom of expression and information
as guaranteed by Article 10 of the European Convention on Human
Rights (ETS No.5). The freedom to receive and impart information
and ideas applies regardless of frontiers.
2. This freedom constitutes a necessary requirement for democracy
and the cultural and social progress of each individual and society
as a whole. Restrictions to this freedom are only admissible as
far as they are necessary in a democratic society.
3. Traditional audiovisual media and print media are increasingly
converging into new forms of electronic media for images, sound
and text which are accessible via different fixed or mobile platforms
using analogue or digital terrestrial transmissions, satellite or
cable. Much of what is now considered broadcasting may in future be
delivered over the Internet, where the user controls his or her
access to countless sources of content which know no geographic
boundaries.
4. Article 10 (paragraph 1) of the European Convention on Human
Rights permits states to require "the licensing of broadcasting,
television or cinema enterprises". The Assembly believes that broadcasting
and television in this sense should not include Internet radio or
Web television, which should not require national authorisations.
Internet radio and Web television should be treated like Internet-based
newspapers or Web sites with text, images and sound.
5. Technological progress is increasing the number of channels,
programmes and services accessible through audiovisual media. This
provides viewers and listeners with a wider choice, comprising linear
and on-demand services. However, more audiovisual content does not
necessarily mean greater plurality, diversity and quality of content,
which remain priorities for audiovisual policies.
6. The viewer, listener or reader of new audiovisual media services
is having to bear greater responsibility for the content he or she
may select and potentially even contribute to, while content regulation
through national regulatory authorities is becoming less feasible.
National legislators are, therefore, compelled to review their existing
regulation and set up new means for achieving their objectives regarding
audiovisual media policy, with the latter objectives still remaining
valid also in the new media environment.
7. The Assembly supports in this context the Committee of Ministers’
Declaration of 20 February 2008 on the allocation and management
of the digital dividend and the public interest. When deciding on
the allocation of radio-frequency spectrum, member states should
also balance the spectrum needs of various technologies relating
to both broadcasting and telecommunications. It will be particularly
relevant to look at the availability of the spectrum for countries
outside the European Union and, for all countries, how spectrum
resources can be allocated to optimise opportunities for public
service broadcasting.
8. Referring to the European Convention on Transfrontier Television
(ECTT) (ETS No. 132), the Assembly notes that technological progress
of electronic audiovisual media requires the revision of the ECTT
and has led to legislative changes at national level as well as
to a new Directive on Audiovisual Media Services for the member
states of the European Union (AVMS Directive).
9. The Assembly notes that the AVMS Directive of the European
Union has the main objective of ensuring freedom of services within
the internal market of the European Union in accordance with primary
European Community law. This approach differs from the ECTT, which
has the aim of ensuring freedom of transmission and retransmission
of broadcasting in Europe regardless of frontiers in accordance
with Article 10 of the European Convention on Human Rights.
10. Having noted the current progress in drafting an amending
protocol to the ECTT in order to transform it into a new Council
of Europe convention, the Assembly believes that the following considerations
should be taken into account:
10.1. the
possibilities for guiding the interpretation and supervising the
application of this new convention should be reinforced;
10.2. the “public service mission” for audiovisual media services
should be defined and explained;
10.3. the role of the Standing Committee should be re-examined
with regard to its supervisory function over the compliance of conventional
obligations and arbitration;
10.4. the transmission of on-demand audiovisual media services
should be treated in a comparable way to television broadcast services
and should not be subjected to the more restrictive provisions taken from
the AVMS Directive of the European Union;
10.5. guidance should be provided regarding the requirement
of programmes services of broadcasters being “wholly or mostly”
directed towards the territory of a Party with the intention of
circumventing the national laws of that Party;
10.6. procedural safeguards, such as a prior opinion from the
Standing Committee or arbitration, should be required before a Party
can take measures directed against a broadcaster established abroad for
having allegedly circumvented the receiving Party’s national laws,
as far as such measures restrict the right to freedom of information
through audiovisual media services.
11. The Assembly invites the Parties to the ECTT to take this
recommendation into account when revising the ECTT.
12. The Assembly recommends that the Committee of Ministers:
12.1. forward this recommendation
to competent ministries;
12.2. allocate sufficient resources to the Standing Committee
set up by the ECTT to fulfil the required supervisory function over
the compliance of Parties with their conventional obligations;
12.3. invite interested non-member states to accede to the revised
convention with a view to extending the scope of this convention
to other countries;
12.4. instruct its competent steering committee to analyse future
challenges to the enforceability of existing broadcasting regulation
in the increasingly converging audiovisual media sector and develop policy
guidelines for new means of content control, including through media
self- and co-regulation, content search and filtering tools for
users, media literacy of users, public support for content of cultural quality,
and international co-operation against illegal content;
12.5. instruct its competent steering committee to analyse the
feasibility of setting up common standards among the Council of
Europe member states for commercial audiovisual content falling outside
the revised convention as well as for audiovisual content produced
and shared publicly by users.
13. The Assembly invites the ministers participating in the Council
of Europe’s Ministerial Conference on the Media and New Communication
Services (Reykjavik, May 2009) to express their continued support
for:
13.1. regulating their audiovisual
media policies nationally as part of their general cultural policies, while
ensuring international co-operation and respecting the right to
freedom of information through audiovisual media services under
Article 10 of the European Convention on Human Rights and Article 19
of the International Covenant on Civil and Political Rights;
13.2. ensuring through appropriate regulation and practice the
independence of their national regulators for the audiovisual media
sector from undue party political, governmental or commercial influences;
13.3. preserving the principle of public service broadcasting
in the changing media environment and extending it further to audiovisual
media services as a whole.
14. The Assembly invites member states of the International Telecommunication
Union of the United Nations to:
14.1. advance
international coordination of the technological standards necessary
for the technological convergence of audiovisual media, while ensuring
the right to freedom of information regardless of frontiers under
Article 19 of the International Covenant on Civil and Political
Rights;
14.2. prepare for the World Radiocommunication Conference in
2011 decisions on the allocation of radio-frequency spectrum following
the analogue switch-off of broadcasting in many countries.
B. Explanatory memorandum by Mr McIntosh, rapporteur
(open)1. The Sub-Committee on the Media,
which I have the pleasure to chair, organised in Paris on 17 November
2008 a hearing on this subject with a number of experts. The contributions
made by these experts were taken into consideration in this report.
The following experts participated (in chronological order): Mr Christoph
Dosch (Chairman, Study Group 6 – Broadcasting Service, International
Telecommunication Union, Geneva), Ms Séverine Fautrelle (Chargée
de mission, Affaires réglementaires et européennes, Canal+, Paris),
Ms Catherine Smadja (Head of special projects, policy and strategy,
BBC, London), Mr Jean-Pierre Teyssier (Chairman of the European
Advertising Standards Alliance in Brussels and President of the French Autorité
de régulation professionnelle de la publicité, Paris), Ms Eve Salomon
(media consultant, London), Mr Harald Trettenbrein (Deputy Head
of the Audiovisual and Media Policies Unit of DG Information Society
and Media, European Commission, Brussels), Mr Xavier Inglebert (Member
of the Standing Committee on Transfrontier Television and adjoint
au chef du Bureau des affaires européennes et internationales de
la Direction du développement des médias du Premier ministre, Paris),
Mr Antonio Amendola (Office of the Secretary General of the Italian
Communications Regulatory Authority, Rome), Mr Gian-Luca Marsella (Lawyer,
Swiss Federal Office of Communication, Biel) and Ms Emmanuelle Machet
(Secretariat of the European Platform of Regulatory Authorities,
Strasbourg).
2. Having initiated this report through a Motion for a Resolution
(Doc. 10901) in April 2006 and been appointed rapporteur of the
Committee on Culture, Science and Education in January 2007, I am
grateful to the many experts who participated in this hearing in
Paris and, in particular, to Eve Salomon who was also commissioned
to draft this memorandum together with me.
1. Introduction
3. The European Convention on Transfrontier
Television (ECTT) of the Council of Europe was opened for signature
in 1989. Although it was amended by a Protocol in 2002, there have
been no radical changes to the provisions relating to broadcasting
across borders for nearly twenty years. The fact that the ECTT has
stood the test of time is a testament to the fundamental principles
which it espouses. However, although the principles may be robust,
technological changes over the last two decades bring into question
the relevance of the Convention’s applicability. In particular,
the introduction and widespread use of the Internet as a mechanism for
the delivery of audiovisual material raises a potential inconsistency.
Under the ECTT, services are only subject to regulation if they
are delivered over terrestrial spectrum, cable or satellite. Those
which operate under individual demand are specifically excluded.
4. In 1989, the Internet was a fledgling technology and there
was no wish to fetter innovation by introducing burdensome regulation
during its development. Whilst it may have been technically possible
to put video on the Internet, the time it would take to download
a few seconds of material would not be worth the poor quality pictures
that would result. Furthermore, Internet service providers charged
for every second on-line and ‘television’ over the Internet was
not a realistic consumer proposition.
5. Two decades on and broadcasters are routinely offering catch-up
television services over the Internet. The BBC in the United Kingdom
has just announced (21 November 2008) that it will be broadcasting simultaneously
its most popular programmes on-line. Cable and telecommunications
operators have been providing on-demand film services for a number
of years.
6. Without amendments to the ECTT, none of these services will
be subject to the basic principles of the Convention – namely the
right to free retransmission between Parties, subject to adherence
to basic principles for the protection of fundamental rights and
freedoms.
7. Article 10 paragraph 1 of the European Convention on Human
Rights permits states to require "the licensing of broadcasting,
television or cinema enterprises". The European Court of Human Rights
decided in 1990 (Groppera Radio v. Switzerland) that Article 10
paragraph 1 has the purpose "to make it clear that states are permitted
to control by a licensing system the way in which broadcasting is
organised in their territories, particularly in its technical aspects."
Broadcasting and television in this sense should not include Internet
radio or Web television, which should not require national authorisations.
Internet radio and Web television should instead be treated like
Internet-based newspapers or Web sites with text, images and sound.
8. In 1989, the European Commission produced its own Directive,
which deals with transfrontier television. Based on the ECTT, but
focused on single market considerations, this Television Without
Frontiers Directive was revised in 1997 and on 11 December 2007
into the new Audiovisual Media Services Directive 2007/65/EC (AVMS
Directive). European Union member states have to implement it by
the end of 2009.
9. In 2007, the Standing Committee of the ECTT started a drafting
process to consider revisions to the ECTT. It is planned to have
a final draft Protocol amending the ECTT in the first half of 2009.
10. Changes to the Television Without Frontiers Directive were
triggered by changes in technology. Television is the most important
mass media in Europe with over 6500 channels available. There has
been a rapid uptake of on-demand services, with, according to European
Audiovisual Observatory estimates, 338 such services, including
142 pay-per-view services, now available in the EU member states.
The AVMS Directive has responded to these changes by extending its
scope to include on-demand audiovisual services and introducing
greater flexibility of advertising rules.
11. Whilst a general preference for harmonisation between the
AVMS Directive and the ECTT may be desirable, it is important to
bear in mind that the AVMS Directive is a Single Market instrument
which has limited bearing on the concerns of the Council of Europe.
In fact, the Council of Europe can apply regulation in relation to
fundamental rights and freedoms which extend well beyond the competency
of the European Commission. Care must be taken to ensure that, whilst
those aspects of the revised EU Directive which correspond to Council
of Europe concerns are retained, those which are market driven are
not unwittingly introduced into the Council of Europe’s ambit.
12. In addition, the European Commission is a very different legal
structure to the Council of Europe. Through European Community law,
EU member states have transferred national powers to the European Commission.
Therefore, the European Commission can impose sanctions against
member states that infringe European Community law. Member states
of the Council of Europe commit themselves legally by signing public international
law conventions, some of which have created supervisory organs with
the power to impose sanctions, such as the European Court of Human
Rights under the European Convention on Human Rights or the European
Committee of Social Rights for violations of the European Social
Charter. The ECTT has set up a Standing Committee, but its supervisory
role is limited.
13. The AVMS Directive has introduced a range of procedural and
legal safeguards to ensure consistent application of the Directive
across the European Union. Not all of these procedures can be imported
into the current draft revision of the ECTT. In particular, services
could be interrupted in circumstances which are not foreseen in
the Directive. This raises concerns about inconsistency for those
states that are subject to both the Directive and the Convention.
14. This Explanatory Memorandum comments on the main issues raised
by the draft revision of the ECTT as well as providing background
to Council of Europe action concerning technological changes which
are on the horizon and their possible consequences.
15. The Drafting Group of the Standing Committee on Transfrontier
Television has proposed amendments to the ECTT as set out in their
document T-TT-GDR(2008)003 (17 November 2008). Whilst many of the proposed
changes are welcomed, some raise cause for concern. Each significant
change is referred to below.
2. Scope of the ECTT
16. The Drafting Group has proposed
changes in line with the AVMS Directive to include both linear and
on-demand audiovisual media services. These changes are welcome
in order to make the ECTT applicable and relevant to modern technological
means of delivery and to ensure consistency with the scope of regulation
in the European Union.
17. It is hoped that some guidance will be given to assist Parties
in interpreting and applying the Convention, and in particular in
determining what is and is not included within its scope. The AVMS
Directive may be a useful model in this regard.
18. The Preamble to the AVMS Directive provides additional background
and explanation to the definition of “audiovisual media services”
including that the definition covers only those services which are
mass media, “that is, which are intended for reception by, and which
could have a clear impact on, a significant proportion of the general
public”. Furthermore, non-economic services are excluded from the
Directive, “such as private websites and services consisting of
the provision or distribution of audiovisual content generated by
private users for the purposes of sharing and exchange within communities
of interest.” All private correspondence, such as e-mails, is specifically
excluded, as are all services where audiovisual content is merely
incidental to the service and not its principal purpose. It includes
as examples “websites that contain audiovisual elements only in
an ancillary manner; such as animated graphical elements, small
advertising spots or information related to a product or non-audiovisual
service.” Electronic versions of newspapers and magazines are also specifically
excluded.
19. Nonetheless, it is noted that a degree of flexibility remains
for Parties to determine whether or not an audiovisual media service
falls within the scope of the Convention.
20. At a recent meeting (29-31 October 2008) of the European Platform
of Regulatory Authorities (“EPRA”), a discussion on this topic amongst
EPRA members raised a degree of differing interpretation. The French regulator,
the Conseil supérieur de l’audiovisuel, has identified difficulties
in determining whether the extent of editorial control exercised
by the service provider brings a service within the scope of the
AVMS Directive. The Dutch are concerned with the definition of ‘programme’
and whether the principal purpose is the provision of programmes.
They have queried whether the provision of audiovisual material
on a newspaper’s website might bring the site within the scope of
the Directive, notwithstanding the fact that no other member state
has to date sought to include newspapers within the ambit of the
Directive. The UK has also had concerns about editorial control,
and also how to deal with a service which provides both linear and
on-demand programming.
21. If there is inconsistency between the proposed revision of
the ECTT and the new AVMS Directive, guidance at least equivalent
to that in the Preamble to the Directive should be offered in support
of the revised Convention, for instance through its Preamble and
its Explanatory Memorandum.
3. Programming matters
3.1. Incitement
22. The draft revision of the ECTT
extends the prohibitions relating to incitement to hatred to include incitement
on the basis of sex, religion, and nationality in addition to race.
This is welcomed.
3.2. Protection of Minors
23. In alignment with the AVMS
Directive, the proposed draft removes the absolute prohibition on
indecent and pornographic material and instead places the emphasis
on protecting minors from accessing such material. This is appropriate
given the changes in technology and regulatory tools which have
developed since the ECTT was drafted in the 1980s.
3.3. News
24. The Drafting Group has retained
the requirement that “news fairly presents facts and encourages
the free formation of opinions” for television broadcasters and
extended the obligation to on-demand services with a public service
mission. It is welcomed that the Group has not removed the obligation
on broadcast news nor sought to rely on various defamation cases
involving journalists as assurance for the protection of journalistic standards
on fairness and accuracy.
25. It would not be adequate to rely on jurisprudence regarding
defamation as an alternative as it is quite possible to provide
inaccurate or unfair news through omission, which is not necessarily
actionable in law. The Parliamentary Assembly recommended a partial
decriminalisation of defamation in its Resolution 1577 (2007). The principles distilled from defamation cases are
unlikely to apply to situations where political, historical or cultural
facts are distorted.
26. The obligation to provide fair and accurate news is vital
for the support of freedom of expression under Article 10 of the
European Convention of Human Rights. The right to receive information
requires the ability to receive accurate news. In future, as citizens
access a greater proportion of their news from on-demand sources,
it will be vital to ensure that there remains at least one category
of on-demand material which can be relied upon for accurate and
fair news. The extension of the requirement to certain on-demand
services is therefore strongly welcomed. However, for the sake of
legal certainty, it might be helpful to include an explanation of
what is meant by “a public service mission”.
3.4. Access
27. The new proposal to encourage
accessibility to services for people with visual and hearing disabilities
is also welcomed.
3.5. Short Reports
28. The proposed amendments to
the ECTT include detailed provisions on the access of the public
to information of public concern through short reports or extracts.
This replaces the broad provisions in the current Convention which
leaves implementation to Parties, and mirrors the AVMS Directive.
This was introduced in order to safeguard the freedom to receive
information and to protect the interests of viewers and is therefore welcomed.
3.6. “European”
29. Whereas the ECTT is open for
signature by non-member states, including those from outside the geographic
territory of Europe, the requirement for Parties to aim for the
majority of programming to be of European origin has been clarified
to refer only to European Parties to the Convention. (“European”
in this context is obviously wider than the European Union.) The
requirement only applies to television broadcast services, although
providers of on-demand services are to be encouraged to promote
European audiovisual works. This is strongly welcomed.
3.7. Independent Production
30. A new provision is proposed,
mirroring the AVMS Directive, for European Parties (where practicable)
to reserve at least 10% of programming (or the programming budget)
for independent production. Whilst the Drafting Group has claimed
this is in support of media pluralism, it is, in fact, a measure
aimed at developing a specific industry sector. Pluralism has to
do with the ownership – and hence editorial control – of media.
In this regard, it is the owners of the audiovisual media services
who exercise editorial control and of whom pluralism is expected.
Independent producers are commissioned to make programmes by service
providers; they do not in themselves necessarily provide plurality
any more than do individual journalists working for a newspaper.
31. Recommendation R(2007)2 of the Committee of Ministers on Media
Pluralism and Diversity of Media Contents specifically refers to
the importance of ownership regulation to promote pluralism but
no reference is given to independent production companies.
3.8. Media Pluralism
32. The draft expands the current
provisions on media pluralism to include diversity of content, particularly by
public service broadcasters. This is welcomed, as is the intention
to promote full transparency of ownership.
4. Commercial Communications
33. The proposed new Article 18
of the Convention deals with advertising, tele-shopping and self-promotion. The
general standards provided for under Articles 7 (Responsibilities
of the broadcaster) and 11 (General standards concerning advertising
and tele-shopping), as well as the rules on transparency provided
for under Article 6 are fully applicable to all commercial communications.
However, due to their nature, on-demand commercial communications
are not subject to the limits concerning the amount of advertising
spots and tele-shopping spots within a given clock hour nor to the
regulations about the scheduling of advertising and tele-shopping.
34. These proposed revisions together with the remaining provisions
regarding commercial communications are to be supported.
5. Standing Committee and restrictions to the principle of freedom of expression and retransmission
5.1. Standing Committee
35. The draft revision of the ECTT
identifies a number of instances where, in the event of a conflict
between two or more Parties, the Standing Committee would have an
adjudicatory role. This raises significant concern about the appropriateness
of the Standing Committee as an organ to undertake such work, particularly
in urgent cases. It also has major resource implications.
5.2. Restrictions on transmission of broadcasting services
36. As in the current ECTT, a process
is set out to deal with situations where a Party finds an alleged contravention
of the Convention in a television broadcast which is transmitted
under the jurisdiction of another Party. In such a case, the two
Parties are expected to find a friendly solution and, only in the
event of failure, may they seek arbitration by a tribunal set up
by the Secretary General of the Council of Europe. The onus is very
much on the Parties to settle their own issues.
5.3. Restrictions on transmission of on-demand services
37. Different proposals are, however,
suggested for on-demand services. There are a number of serious issues
arising from the draft Article 24bis of
the proposed revision of the ECTT, not only in procedure, but in substance.
38. It is proposed that the transmission of on-demand services
may be restricted regardless of whether or not they contravene the
Convention, or indeed if there is any contravention of any law at
all. Transmission may be restricted for reasons of public policy,
protection of health, public security, or the protection of consumers (including
investors). This is an enormously wide brief. It suggests that a
service could be blocked simply because it provided direct competition
to a domestic service (on public policy grounds and to protect investors). Further,
it leaves it open for Parties to block access to on-demand services
which are critical of the receiving Party’s government.
39. The wording of draft Article 24bis comes
from the AVMS Directive, but with neither the policy history which
informed the AVMS Directive nor the procedural safeguards provided
by the European Commission.
40. Special provisions relating to on-demand services were included
in the AVMS Directive because of the requirements of the e-Commerce
Directive, which dates back to 1998. This Directive has as its specific
purpose the smooth running of the internal market in Information
Society Services. It is sponsored by the European Commission’s DG
Internal Market and not by DG InfoSoc.
41. The Preamble to the e-Commerce Directive specifically states
that the scope of the Directive “should not prevent member states
from taking account of the different social, societal and cultural
implications inherent in the advent of the Information Society;
whereas, in particular, the use of the procedural rules laid down
(in the Directive) should not affect cultural policy measures, particularly
in the audiovisual field, which member states might adopt in accordance
with Community law, taking account of their linguistic diversity,
their specific national and regional characteristics and their cultural
heritage...”
42. It further specifies, “that the development of the Information
Society should ensure, in any event, proper access of European citizens
to the European cultural heritages supplied in a digital environment.”
Importantly, it says that the Directive “is not intended to apply
to national rules relating to fundamental rights, such as constitutional
provisions concerning freedom of expression”.
43. So why are on-demand services subject to specific and potentially
broad ranging restrictions in the AVMS Directive? The reason is
that they are included in the definition of “Information Society
Services” in the e-Commerce Directive. It is likely that they would
have remained subject to the e-Commerce Directive, but, according
to DG InfoSoc, it was considered advisable for the sake of clarity
to include the specific derogations also in the AVMS Directive.
44. However, this does not provide any explanation as to why on-demand
services should be included in the ECTT. The Council of Europe has
no equivalent to the e-Commerce Directive, nor does it have the
mandate to regulate the European Union’s internal market in Information
Society services. The fact that on-demand services may face tougher
regulation within European Union member states is a matter for those
states, and will continue to be the case regardless of different,
less onerous Commission provisions. To seek to import European Commission
internal market provisions into the ECTT is inappropriate and beyond
the remit of the Council of Europe.
45. There are additional procedural problems with the proposed
amendment. First, the proposal sets out that before taking action
to restrict transmission, the Party must notify the Standing Committee
of its intention to take measures. In the case of urgency, this
too must be notified to the Standing Committee “in the shortest possible
time”. No procedure is set out to explain what happens after the
Standing Committee is so notified.
46. By contrast, the AVMS Directive says, “the Commission shall
examine the compatibility of the notified measures with Community
law in the shortest possible time. Where it comes to the conclusion
that the measures are incompatible with Community law, the Commission
shall ask the member state in question to refrain from taking any
proposed measures or urgently to put an end to the measures in question.”
Without an equivalent provision in the ECTT, there is a possibility
that access to services could remain blocked for considerable periods,
with the only recourse being to the European Court of Human Rights
under Article 10 of the European Convention on Human Rights.
47. If the intention is for the Standing Committee to act as would
the European Commission, this is unrealistic. The Standing Committee
does not have the same authoritative role. It cannot, for example,
bring administrative or judicial proceedings for infringements.
It is a body composed of the Parties to the ECTT, but not a suitable
adjudicator for urgent issues.
48. It is strongly recommended that this provision is deleted
and that on-demand services are treated in a comparable way to television
broadcast services.
5.4. Internal laws of the Parties and restrictions on retransmission
49. Draft Article 28 of the proposed
revision of the ECTT deals with the relations between the Convention and
the internal law of the Parties, and especially circumstances where
a Party considers that a broadcaster has established itself in another
jurisdiction in order to circumvent the application of stricter
rules. In such cases, the Party must assess that the broadcast is
“wholly or mostly directed towards its territory.”
50. In order to avoid unnecessary dispute, it would be helpful
to offer some guidance to help Parties determine whether a broadcast
is, or is not, “wholly or mostly directed towards its territory.”
The AVMS Directive introduces a similar test, but helpfully includes
in its Preamble that, when assessing the matter on a case-by-case
basis, reference may be made “to indicators such as the origin of
the advertising and/or subscription revenues, the main language
of the service or the existence of programmes or commercial communications targeted
specifically at the public in the member state where they are received.”
The inclusion of similar guidance in the new Convention would be
welcomed.
51. The proposed new Article 28 raises considerable issues with
regard to the ability of Parties to take measures against broadcasters
in other jurisdictions. Under the existing provisions (Article 24
of the ECTT), a Party cannot, without prior agreement, take any
measures against a broadcaster until a set of procedures has been
exhausted.
52. Before referring the matter to the Standing Committee, both
the receiving Party and the Party where the broadcaster is established
shall endeavour to reach a friendly settlement. If they have not
done so within three months, the matter can be referred to the Standing
Committee which will give an opinion within six months. If the Standing
Committee decides there has been an abuse of rights, the receiving
Party may take appropriate measures to remedy the abuse. If the
Party which has jurisdiction fails to take the appropriate measures
within six months, an arbitration procedure can be invoked. The
receiving Party may not itself take any action until completion
of the arbitration procedure.
53. By contrast, the new proposed provisions permit the receiving
Party to take measures directly against the broadcaster concerned
if liaison with the Party with jurisdiction does not achieve satisfactory
results within two months. There is no requirement to obtain an
opinion from the Standing Committee or to seek arbitration. Whilst
there is a requirement to notify the Standing Committee of the proposed
action, it is only in view of an opinion; there are no mandatory
prerequisites before action can be taken.
54. The proposed new provision seeks to replicate the AVMS Directive,
but without importing the safeguards provided by European Community
law.
55. The Preamble to the AVMS Directive explains, “To deal with
situations where a broadcaster under the jurisdiction of one member
state provides a television broadcast which (…) is wholly or mostly
directed towards the territory of another member state, a requirement
for member states to cooperate with one another and, in cases of
circumvention, the codification of the case law of the European
Court of Justice, combined with a more efficient procedure, is an
appropriate solution that takes account of member state concerns
without calling into question the proper application of the country
of origin principle. The notion of rules of general public interest has
been developed by the Court of Justice in its case law in relation
to Articles 43 and 49 of the Treaty and includes, inter alia, rules
on the protection of consumers, the protection of minors and cultural
policy. The requesting member state should ensure that the specific
national rules in question are objectively necessary, applied in
a non-discriminatory manner, suitable for attaining the objectives
which they pursue and do not go beyond what is necessary to attain
them.”
56. In other words, there is a requirement under the AVMS Directive
for the receiving Party to ensure that its own, national laws are
fully compliant with European Union law in both content and proportionality
before taking action against a broadcaster for non-compliance with
those national laws. By contrast, there is no requirement in the
proposed revision of the ECTT for the receiving Party’s national
laws even to be compliant with the European Convention on Human
Rights (ECHR). Under the new proposals, it would be open for a receiving
Party to restrict retransmission of a broadcaster who, while exercising
freedom of expression rights under Article 10 of the ECHR, was critical
of the receiving Party’s government.
57. Furthermore, the proposed revision of the ECTT does not contain
the procedural safeguards set out in the AVMS Directive. The Directive
states that measures can only be taken by the receiving member state
if the European Commission has been notified and has
decided that the measures are compatible with Community law and that the assessment made by
the receiving Party is correctly founded. The European Commission
will reach a decision within three months of notification and no
action can be taken until then.
58. Whilst it is understandable and reasonable for Parties to
wish to be able to have redress against broadcasters who broadcast
into their country but deliberately establish themselves outside
of the country with the intention of circumventing national rules,
it is not acceptable for proper rules of procedure and natural justice
to be ignored. There is, in particular, no justification for Parties
to be allowed to take unilateral action where national laws are
disregarded, whereas proper procedures must be followed before taking
action against a violation of the Convention itself (see Article
24).
59. Accordingly, it is strongly recommended that rules are included
to prevent action being taken to restrict transmission without the
prior agreement of the Standing Committee that such measures are
warranted and proportionate.
6. Future Technologies and the European Convention on Transfrontier Television
60. By 16 June 2015, analogue television
signals throughout the Parties to the ECTT will have been switched
off. Within the European Union, switch-off will have happened sooner,
by 2012. Already, Luxembourg, Andorra, Switzerland, the Netherlands,
Finland and Sweden have completed the transition to digital, and
many other countries have begun the process.
61. The Declaration of the Council of Europe’s Committee of Ministers
dated 20 February 2008 on the allocation and management of the digital
dividend and the public interest, discusses the need to take into account
social, cultural and general public interest considerations when
determining the allocation of the digital dividend (the radio-frequency
spectrum which will become available as a result of the switchover
from analogue to digital television broadcasting).
62. It declares that member states should: (1) acknowledge the
public nature of the digital dividend resulting from the switchover
and the need to manage such a public resource efficiently in the
public interest, taking account of present and foreseeable future
needs for radio spectrum, (2) pay special attention to the promotion of
innovation, pluralism, cultural and linguistic diversity, and access
of the public to audiovisual services in the allocation and management
of the digital dividend and, for this purpose, take in due account
the needs of broadcasters and of the media at large, both public
service and commercial media, as well as those of other existing
or incoming spectrum users, and (3) consider the benefit that the
allocation and management of the digital dividend may bring to society
in terms of an increased number of diversified audiovisual services, including
mobile services, with potentially improved geographical coverage
and interactive capability, as well as services offering high definition
technology, mobile reception, or easier and more affordable access.
63. The Parliamentary Assembly should welcome and support this
Declaration in the context of this report.
64. When deciding on the allocation of the digital dividend, member
states will need to balance the spectrum needs of various technologies
relating to both broadcasting and telecommunications. But even within
the broadcasting sphere, there are several technological developments
which will impact upon spectrum allocation.
6.1. High Definition Television (“HDTV”)
65. HDTV offers higher resolution
services which are broadcast digitally. Viewer enjoyment is enhanced, particularly
of live action sporting events and films. As HDTV uses more spectrum
than standard definition, member states will need to consider the
extent to which HDTV should be offered as against the provision
of a greater overall number of services.
66. In the UK, the regulator Ofcom has recently announced that
part of the digital dividend will be used to give existing public
service broadcasters capacity to deliver HDTV. There is evidence
to suggest that in France the availability of HDTV has led to the
growth of the digital terrestrial television platform, especially
for Pay-TV.
6.2. Mobile Television
67. Although there is a range of
different technologies and technical standards available around
the world for delivering mobile television, the standard which has
been declared as the “preferred” standard by the European Commission
is DVB-H. DVB-H can use the same spectrum block as used by digital
television in Europe.
68. A new, more spectrum efficient standard, DVB-H2, has recently
been developed for use from 2010. Some European countries, such
as France and Italy, have launched mobile television services, whereas others,
including Germany and the UK, have abandoned early trials. Nonetheless,
there is a large interest in developing mobile television, particularly
amongst receiver manufacturers, such as Nokia.
6.3. Advanced Compression Standards
69. Using the current compression
standard of MPEG2, one digital frequency channel can carry either
four TV programme channels (plus audio and data services) or one
HDTV service (plus audio and data services). By comparison, an analogue
frequency channel could only carry one television channel (with
no additional audio or data services).
70. An improved compression standard, MPEG4, is now available,
allowing about 50% more data to be sent down the same channels as
MPEG2. Not all existing operators are interested in moving to MPEG4
as this will involve updating existing equipment. But those countries
that have yet to introduce digital broadcasting will no doubt wish
to consider adopting the most up-to-date, efficient technology available.
6.4. IPTV
71. IPTV is a television service
delivered over the Internet (usually by broadband), and typically
supplied by a telecommunications supplier using a closed network.
Where web access, IPTV and Voice over Internet Protocol (VoIP) are
bundled together in a commercial package to consumers, this is called
“Triple Play”. IPTV can be streamed video, or video on demand.
72. Most developed economies now have IPTV offerings. The world’s
leading markets are currently France with over 4 million subscribers,
South Korea with nearly 2 million, Japan, Italy, Spain, Belgium,
and China.
6.5. LTE and WiMAX
73. There are a number of new technologies
which enable delivery of data at very high speeds, making more efficient
use of broadband, including wireless, and thus offering greater
possibility of mobile TV over the Internet. WiMAX is compatible
with both 2G and 3G telecoms networks, whereas LTE (3GPP Long Term Evolution)
would use a so-called 4G network.
6.6. The Issues
74. The switch-over to digital
transmission and the cessation of analogue transmission will release substantial
amounts of radio spectrum. Countries are currently considering how
to exploit this resource. It will be particularly relevant to look
at the availability of the spectrum for non-European Union countries
and, in the case of all countries, for example, how spectrum resources
can be allocated to optimise opportunities for public service broadcasting.
75. Technological progress will increase the number of channels,
programmes and services. This will provide viewers and listeners
with a wider choice. However, plurality and diversity of content
remain priorities. More channels do not necessarily mean more diverse
content.
76. Eventually, much, if not all, of what we now consider broadcasting
may be delivered over the Internet. This may obviate the need for,
or the possibility of, much regulation (for example, licensing)
and means that this is an area which should be the subject of a
future report.
77. Although it is hoped that the new Convention will remain fit
for purpose for a number of years, as the balance of viewing shifts
to on-demand and Internet delivery, the provisions of the Convention
will need to be revisited to ensure not only that any provisions
are enforceable, but also that they remain relevant and proportionate
in a world where the viewer controls his or her access to countless
sources of content which know no geographic boundaries.
Reporting committee: Committee on Culture, Science and Education
Reference to committee: Doc. 10901, Reference No. 3302 of 22 January 2007
Draft recommendation unanimously adopted by the committee on 9 December 2008
Members of the committee: Mrs Anne Brasseur (chairperson), Baroness Hooper (1st vice-chairperson), Mr Detlef Dzembritzki (2nd vice-chairperson), Mr Mehmet Tekelioğlu (3rd vice-chairperson), Mr Remigijus Ačas, Mr Vincenç Alay Ferrer, Mr Kornél Almássy, Mrs Aneliya Atanasova, Mr Lokman Ayva, Mr Rony Bargetze, Mr Walter Bartoš, Mr Radu Mircea Berceanu, Mrs Deborah Bergamini, Mrs Oksana Bilozir, Mrs Guðfinna Bjarnadóttir, Mrs Ana Blatnik, Mrs Rossana Boldi, Mr Ivan Brajović, Mr Vlad Cubreacov, Mrs Lena Dąbkowska-Cichocka, Mr Joseph Debono Grech, Mr Ferdinand Devinsky, Mr Daniel Ducarme, Mrs Åse Gunhild Woie Duesund, Mrs Anke Eymer, Mr Relu Fenechiu, Mrs Blanca Fernández-Capel, Mr Axel Fischer, Mr Gvozden Srećko Flego, Mr Dario Franceschini, Mr José FreireAntunes (alternate: Mr. José Luis Arnaut), Mr Guiorgui Gabashvili, Mrs Gisèle Gautier, Mr Ioannis Giannellis-Theodosiadis, Mr Paolo Giaretta (alternate: Mr Giacento Russo), Mr Stefan Glǎvan, Mr Raffi Hovannisian, Mr Rafael Huseynov, Mr Fazail Ibrahimli, Mr Mogens Jensen, Mr Morgan Johansson, Mrs Francine John-Calme, Mrs Liana Kanelli, Mr Jan Kaźmierczak, Miss Cecilia Keaveney, Mrs Svetlana Khorkina, M. Serhii Kivalov, Mr Anatoliy Korobeynikov, Mrs Elvira Kovács, Mr József Kozma, Mr Jean-Pierre Kucheida, Mr Ertuğrul Kumcuoğlu, Mr Markku Laukkanen, Mr van der Linden, Mrs Milica Marković, Mrs Muriel Marland-Militello, Mr Andrew McIntosh, Mrs Maria Manuela Melo, Mrs Assunta Meloni, Mr Paskal Milo, Mrs Christine Muttonen, Mrs Miroslava Nĕmcová, Mr Edward O’Hara, Mr Kent Olsson, Mr Andrey Pantev, Mrs Antigoni Papadopoulos, Mrs Majda Potrata, Mrs Adoración Quesada Bravo, Mr Paul Rowen (alternate: Mr Robert Walter), Mrs Anta Rugāte, Mr Indrek Saar, Mrs Ana Sánchez Hernández, Mr André Schneider, Mr Yury Solonin, Mr Christophe Steiner, Mrs Doris Stump, Mr Valeriy Sudarenkov, Mr Petro Symonenko, Mr Hugo Vandenberghe, Mr Klaas de Vries, Mr Piotr Wach, Mr Wolfgang Wodarg
N.B.: The names of the members who took part in the meeting are printed in bold
Secretariat of the committee: Mr Grayson, Mr Ary, Mr Dossow