New Content Regulation of TV Advertising in the EU Dr' Anja Wichmann, MLE, LLM Hogan

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New Content Regulation of TV Advertising in
the EUDr. Anja Wichmann, MLE, LLMHogan
Hartson Raue L.L.P. Berlin, Germany
TAIEX Office, Workshop on TV AdvertisingRiga,
December 2/3, 2004
New Content Regulation of TV Advertising in the
EU Dr. Anja Wichmann, MLE, LLM Hogan
Hartson Raue L.L.P Berlin, Germany
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Outline

• The new techniques
• split-screen advertising
• Virtual advertising
• Interactive Advertising
• The legal framework of tv advertising content
  regulation
• TWF Directive
• Misleading Advertising Directive
• Proposed Framework Directive on Unfair B2C
  commercial practices
• Council Recommendation on the Protection of
  Minors, Human Dignity
• The rules applicability to the new techniques

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The new techniques

• Split-screen advertising
• Parallel transmission of editorial and
  advertising content
• Virtual advertising
• Replacing existing advertising boards of sporting
  events
• Interactive advertising
• Viewer changes what appears on the screen
• Or Viewer provides information back to the
  broadcaster /
• advertiser

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The legal framework of tv advertising content
regulation

• TWF Directive (1989, 1997)
• Consumer protection Directives
• Misleading Advertising Directive (1984, 1997)
• Proposed Framework Directive on Unfair B2C
  Commercial Practices
• Council Recommendation on the Protection of
  Minors and Human Dignity (1998, 4/2004)
• Ownership restrictions on television, radio and
  cross-media-ownerships
• Directive was not adopted, mainly for reasons of
  lack of competency

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The content provisions of the TWF Directive

• Protection of human dignity and minors (Art. 12,
  16)
• Prohibition / restriction of advertising for
  certain products (Art. 13-15)
• Sponsored tv programmes (Art. 17)

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The rules applicability to split screen
advertising

• Used for tv advertising
• Fully covered by the TWF Directives content
  provisions (Art. 12-16)
• Used to display the logo/name of the sponsor
• Must Comply with Art. 17 TWF Directive
• Must not encourage purchase / rental of the
  products / services of the sponsor / a third
  party Art. 17 (1)(c)
• No presentation of the logo and/or name of the
  sponsor in a manner which might prejudice the
  integrity of the sponsored programme cf. Art.
  17(1)

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The rules applicability to virtual advertising

• Advertising inserted in return for payment /
  similar consideration
• Especially Art. 17 TWF Directive

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The rules applicability to interactive
advertising

• Linear broadcasting environment
• The icon and the next directly accessed
  page/screen
• The icon fully covered by the TWF Directive
• Directly accessed page also covered 2
  consequences
• Content provisions apply
• Information that the TWF environment will be
  left (cf. Art. 10)
• Interactive broadcasting environment
• Pages beyond the first, directly accessed
  page/screen
• Only governed by the E-Commerce Directive which
  has no content provisions
• Here, content regulation only through Misleading
  Advertising Directive, (proposed) Framework
  Directive on unfair B2C Commercial Practices
  (plus observation of the Council Recommendation)

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EU Competency to Regulate Media Ownership (2)

• Current EU Competencies (contd)
• Newspaper Publishing Case, 1994
• Application of Merger Regulation escape clause
• Merger would have been approved pursuant to
  Merger Regulation provisions
• UK regulator was nevertheless allowed to reject
  it for plurality reasons

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EU Competency to Regulate Media Ownership (3)

• EU Competencies to Harmonize Media Ownership
  Rules
• Principle of subsidiarity, Article 5 EC Treaty
• Legislative Competency under Article 151 EC
  Treaty?
• The Community shall contribute to the flowering
  of the culture of the Member States .... It
  shall take cultural aspects into account in its
  actions under other provisions of this Treaty, in
  particular in order to respect and to promote the
  diversity of its cultures.
• However Article 151 Par. 5 explicitly excludes
  any harmonisation in the field of cultural
  politics

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EU Competency to Regulate Media Ownership (4)

• EU Competencies to Harmonize Media Ownership
  Rules (contd)
• EC Court of Justice on Tobacco Advertising (2000)
• The EC shall help to ensure a high level of human
  health protection (Article 152 EC Treaty)
• However If EC action qualifies as a measure to
  primarily promote public health, it may not be a
  harmonisation of national law

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EC Competency to Regulate Media Ownership (5)

• EU Competencies to Harmonize Media Ownership
  Rules (contd)
• No Competency under Article 95 EC Treaty
• Aim of Harmonisation Achievement of the EC
  Treatys objectives as set out in Article 14
  (including improvement of internal market)
• EC has wide discretionary power when determining
  potential market hurdles
• However There is no internal media market in the
  EC due to language barriers between Member States
• Also EC-wide media ownership restrictions would
  obstruct EC media market (if existent) rather
  than improve it
• EC Court of Justice (Tobacco) No harmonisation
  of advertising restrictions by demanding
  restrictions on the highest level

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Outline

• National Markets and Regulation? Two Examples
• European Media Concentration Control?
  Background, Legal Basis
• Potential Influence of Convergence? New
  Regulatory Models / Proposals
• Conclusions / Discussion

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Total Media Market Approach (1995 UK Proposal)
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Practical Relevance from Todays Perspective

• Major problems with implementation
• Which markets to include in extended
  consideration?
• Which criteria to use as an exchange rate?
• More a reaction to convergence-driven market
  changes than a reaction to convergence itself
• Real convergence issues were not solved
• Which markets to include in extended
  consideration?
• Which distribution methods to include?
• Television Webcasting as audience share?
• Press Web hits as part of circulation?
• Related Markets Approach (Germany) seems more
  practical

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Outline

• National Markets and Regulation? Two Examples
• European Media Concentration Control?
  Background, Legal Basis
• Potential Influence of Convergence? New
  Regulatory Models / Proposals
• Conclusions / Discussion

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Conclusions

• New techniques must also comply with the content
  provisions of the TWF Directive (Art. 12-17)
• Additionally, other legal instruments apply
• Misleading Advertising Directive
• (Proposed) Framework Directive on Unfair B2C
  Commercial Pratices
• Council Recommendation on the Protection of
  Minors, Human Dignity
• No need to amend the TWF Directive (in light of
  the Commission interpretative communication)

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Thank you.

• Dr. Anja Wichmann, MLE, LLM
• Hogan Hartson Raue L.L.P
• Potsdamer Platz 1
• 10785 Berlin
• AWichmann_at_hhlaw.com
• Slides AWichmann_at_hhlaw.com