Egta

ADVOCACY&REGULATORY ASSISTANCE News

 

EU news on television and radio advertising at a glance

 

These news items allow you to have an overview of the EU latest developments in the area of television and radio advertising. Most of these reports are the subject of more detailed in-depth anaylses that are reserved for egta members. Hopefully this section will help you grasp the relevance of EU debates for the advertising industry and the future of the broadcasting industry.

 

This "News" section is updated on a regular basis, depending on topicality: most recent news appear at the top of the page. These news memos are fed by the public and regulatory affairs team at egta.

 

25 January 2012

 

European Commission publishes draft Regulation and Directive on data protection, industry and Article 29 WG react

 

On 25 January, the European Commissionpublished its two legislative proposals on data protection.

 

The legislative proposals consist of:

 

  • a proposal for a Directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data.
  • a proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)

Regarding advertising and media, the Regulation is the text which is of major importance and proposes new rules on the processing of the personal data of a child which follows the US COPPA rule.

 

While the definition of a child has been decided as 18 years, the Commission has adopted a new Article 8 specifically devoted to the processing of the personal data of a child, where it stresses, in paragraph 1, that "in relation to the offering of information society services directly to a child, the processing of personal data of a child below the age of 13 years shall only be lawful if and to the extent that consent is given or authorised by the child's parent or custodian. The controller shall make reasonable efforts to obtain verifiable consent, taking into consideration available technology.””

 

In Article 19, the Regulation gives data subjects the right to object to the processing of his/her personal data for direct marketing purposes. This right must be explicit and offered in a clear intelligible manner.

 

The Data Industry Platform sent out a press release expressing its concern “about the far-reaching powers which the proposed Regulation would confer to the European Commission.”

 

The Article 29 Working Party, an independent advisory body composed of representatives from the national data protection authorities of the EU member states, the European Data Protection Supervisor and the European Commission, also published a press release broadly supporting the proposals especially the clarification of the notion of consent, the introduction of a general transparency principle and enhanced redress mechanisms.

 

The Commission's proposals will now be passed on to the European Parliament and the Council of Ministers. The Regulation will be enforceable in all Member States two years after it has been adopted. Member States will also have a period of two years to transpose the provisions in the Directive into national law.

 

10 January 2012

 

European Data Protection Supervisor (EDPS) publishes priorities for 2012

On 10 January, the European Data Protection Supervisor (EDPS) set out his priorities for 2012 in the area of legislative consultation by publishing his strategic planning document, the Inventory. The EDPS is committed to devoting substantial resources in 2012 to issues of strategic importance which can be grouped into four categories:

  • Towards a new legal framework for data protection- The EDPS has been involved in the review process since 2009 and will issue an Opinion on the legislative proposal(s) in early 2012
  • Technological developments and the Digital Agenda- focus on Internet monitoring, Intellectual Property enforcement and takedown procedures; cloud computing services and e-Health
  • Further developing the Area of Freedom, Security and Justice- two areas of interest include the Passenger Name Record (PNR) and reviewing the Data Retention Directive
  • Financial sector reform- in particular, the EDPS plans to issue a package of opinions on legislative proposals concerning the regulation and supervision of financial markets and actors, including: 1) the legislative package for the revision of the banking legislation 2) the market abuse regulation 3) the regulation and the directive on markets in financial instruments and 4) the revision of the credit rating agencies regulation.

6 January 2012

 

Programme of the Danish Presidency of the Council of the European Union 2012

 

On 6 January, the Danish Council Presidency, lasting from 1 January to 30 June 2012, published its programme aiming towards promoting a strong European economy, revitalised growth in the EU and a stronger EU that effectively addresses the problems that occupy Europe’s citizens and enterprises on a daily basis.

 

The four main topic groups the Presidency intends to develop include: a responsible Europe, a dynamic Europe, a green Europe, a safe Europe. Amongst the various actions listed as priorities, there are no suggestions to restrict advertising or marketing.

 

Under the banner of a “responsible Europe”, the Presidency predicts that the negotiations on the Multiannual Financial Framework of the EU budget for 2014-2020 will be one of the largest single issues for the Presidency.

 

For a “dynamic Europe”, the Presidency plans to strengthen education, research, innovation, gender equality and the EU labour Market.

 

A “green Europe” must strive to achieve its climate and energy targets regarding increased energy efficiency by 2020 as well as expansion of renewable energy, enhanced energy efficiency and a significant reduction in greenhouse gas emissions by 2050.

 

For a “safe Europe”, Member States must enhance cooperation regarding a well managed asylum and migration policy as well as regarding effective action to fight and prevent both terrorism and cross-border crime. The Danish Presidency will support the wish of EU neighbouring countries for closer cooperation, including access to EU markets, and contribute to ensuring that the enlargement process continues as a responsible enlargement policy. The Presidency will actively support EU institutions and Member States in their efforts to strengthen the EU’s role at global level.

 

24 November 2011

 

ECJ rules on violation of media law by Spain, new law covers advertising limits

 

On 24 November, following a 3 year inquiry, the European Court of Justice (ECJ) ruled against Spain concerning its violation of the Television Without Frontiers (TWF) Directive. According to the Court, Spain exceeds the advertising maximum limit of 20% broadcasting time per hour. It should be noted that previous to this decision, on 11 November the Council of Ministers approved a Royal Decree clearing the Regulation developing the Spanish General Law on Audiovisual Communications regarding television advertising and the provision of legal certainty to the sector. The new Regulation develops some elements of the abovementioned Spanish Law on TV advertising that were not sufficiently clear in the General Law, such as those related to the calculation of the 12 minutes of permitted advertising per hour or the maximum number of advertising breaks per programme.

 

The original case started on 22 July 2009 when the European Commission submitted a request to the ECJ to declare Spain to be in violation of the TWF Directive. The Commission argued that Spain’s narrow and incorrect interpretation of “advertising spots” which means that certain types of television advertising broadcast in Spain, namely advertorials, telepromotions, sponsorship credits and micro-ads are excluded from the advertising hourly restrictions. The point of the exercise was to determine whether the four aforementioned types of advertisement can be classified as ‘advertising spots’, as claimed by the Commission or rather constitute ‘other forms of advertising', as claimed by Spain.

 

Overall, the ECJ found that Spain was in violation of the Directive and exceeds the advertising maximum limit of 20% broadcasting time per hour. As the Court reasoned, “[i]t follows that any type of television advertising broadcast between programmes or during breaks constitutes, as a general rule, an ‘advertising spot’ within the meaning of the TWF Directive, unless the type of advertising concerned were to be covered by another form of advertising expressly governed by that directive […]”.

 

As mentioned, the new regulation clearly defines the characteristics of the various formats of audiovisual commercial communication, such as self-promotion (defined as videos advancing TV serials, films, documentaries or TV shows and on-screen overlays of the same broadcaster) may not exceed 5 minutes per hour, tele-promotions (defined as the advertising made by the programme host or hostess or by the main characters of a programme using the scenario and ambience of the same programme) shall have a minimum duration of 45 seconds per hour and a limit of 3 hours and 36 minutes per day is set. 

 

According to the text, sponsorship may not exceed 10 seconds per hour, must be linked to programmes or sub-programmes and may not encourage the viewer to purchase the sponsor’s product or service. If the sponsorship does not meet these requirements, it shall be deemed to constitute standard advertising and therefore will be included within the 12-minute limit.

 

Commercial messages broadcast during the retransmission of sport events are permitted only when the game is paused or when the advertisements allow the further development of the event. In this case, advertising is allowed by overprints not occupying more than one fifth of the screen.

 

15 November 2011

 

European Parliament adopts own initiative report on online gambling in the internal market

 

On 15 November, the European Parliament in its plenary session adopted the own-initiative report by MEP Jurgen Creutzmann (Germany, ALDE) on “Online Gambling in the Internal Market”. The resolution shows a clear shift in understanding and support for the European licensed online gambling sector. The report follows the European Commission’s ‘Green Paper on on-line gambling in the Internal Market” of March in which the Commission sought views on online commercial communication, sales promotions, direct marketing and sponsorship.

 

In particular, the resolution promotes:

 

  • he provision of well-regulated online gambling services;
  • cooperation between national gambling regulators;
  • the need to avoid unnecessary licensing duplication and administrative burdens;
  • notes that licensed betting operators help protect the integrity of sport;
  • that more progress should be made on addressing infringement cases; and
  • that the Commission should take action against violations of the EU Treaties.

Regarding advertising, it should be noted that the following text was deleted from paragraph 4 thereby removing calls for more restrictions on advertising: “by restricting advertising to the level that is strictly necessary in order to direct potential gamblers to the legal provision of services and by requiring all advertising for online gambling to be systematically coupled with a message warning against excessive or pathological gambling.”

 

The report in Paragraph 43 calls for “pragmatic solutions with regard to advertising for, and sponsoring of, sports events by online gambling operators; is of the opinion that common advertising standards should be adopted.”

 

In parallel, the Commission has sent out notifications on 16 November of their plans to publish a Communication on online gambling in June 2012. This vote gives a clear direction to the Commission that is in the process of concluding its Green Paper consultation.

 

In view of what the gambling sector could represent for TV and radio sales houses, egta responded to the Commission’s consultation on online gambling and will continue to closely monitor the situation.

 

15 November 2011

 

European Parliament adopts own initiative report on a new strategy for consumer policy, calls for consumers to be protected from misleading advertising

 

On 15 November, the European Parliament’s plenary session adopted by a large majority the own-initiative Report by Cypriot MEP Kyriacos Triantaphyllides on “A New Strategy for Consumer Policy”. The Report was not voted in a roll call manner but rather by a show of hands and was almost unanimously agreed upon.

 

The report is expected to feed into the European Commission’s new Consumer Agenda planned to be published March-April 2012 which will be presented jointly by the Commissioners for Consumer Protection and Justice.

 

The final version of the report calls for consumers, especially children, to be protected from misleading advertising (§9). This addition represents a compromise negotiated by the main parties’ rapporteurs following the original deletion from the report of a paragraph proposinga ban on TV advertising aimed at children under the age of 12. The original draft of the report contained two paragraphs addressing advertising. Paragraph 13 of the first draft urged the Commission to “include the protection of children among the main priorities of the Consumer Agenda and [to] propose a ban on TV advertising and direct advertising aimed at children under the age of 12”. Paragraph 12 emphasised “the need to provide better protection for vulnerable consumer groups such as children and the elderly” and pointed out “that children are exposed to extensive advertising even though they have no possibility to make informed choices”.  Both paragraphs were deleted when it was adopted by the IMCO Committee, in October 2011.

 

The report voices the concerns currently shared by a large number of EU decision makers regarding not only advertising to children but also new types of targeted online advertising.  In paragraph 16 it calls on the Commission to ensure that there is a sufficient degree of competition in the market for on-line advertising and search engines and monitor the way data is used by the companies concerned, in accordance with the existing data protection framework.”

 

Speaking at the plenary session, the Commissioner for Health and Consumer Policy John Dalli noted that the European Commission will, most likely with the European Parliament Internal Market and Consumer Protection (IMCO) Committee, hold a hearing on the Consumer Agenda in the first few months of 2012.

 

In the same vein another forthcoming draft report dealing with “vulnerable consumers” initiated by Spanish Socialist MEP María Irigoyen Pérez is also likely to influence the Consumer Agenda and could equally include provisions on advertising to children. A draft of the report will be presented on 24/25 of November in the IMCO Committee following a first exchange of views.

 

Due to the nature of the Triantaphyllides report, egta actively lobbied the rapporteur’s office (together with the Association of Commercial Television in Europe (ACT), the European Publishers Council (EPC) and the Association of European Radios (AER) and took part in a broader industry coalition letter sent to the rapporteur, shadow rapporteurs and relevant committee members.

 

7 November 2011

 

European Commission to provide proposals to review Data Protection Directive by end of January 2012

 

At a meeting between EU Justice Commissioner Viviane Reding, Vice-President of the European Commission, and the German Federal Minister for Consumer Protection, Ilse Aigner the European Commission said it will come forward with proposals to reform the 1995 Data Protection Directive by the end of January 2012.

 

These proposals have been awaited for two years and the modernisation of the rules will have huge effects on how data privacy issues are dealt with in the European Union.

 

In the realm of consumer privacy and their data online, especially regarding the e-privacy directive and its implementation, Conussion Reding noted that “in our view, EU law should require that consumers give their explicit consent before their data are used. And consumers generally should have the right to delete their data at any time, especially the data they post on the Internet themselves.”

 

3 November 2011

 

Credos report shows that advertising industry’s contribution to the economy is £15.6 billion in the UK

 

Credos, the advertising think-tank established by the UK Advertising Association has provided an economic impact analysis of the UK’s advertising industry. The Report entitled “The Contribution of the Advertising Industry to the UK Economy” reveals that the UK advertising industry’s contribution to the UK economy for 2008 to be £15.6bn. This is double the previous value of £7.8 billion published by the Department for Culture, Media and Sport in 2008.

 

The report highlights the number of ways in which the advertising industry has a catalytic effect on the broader economy. These include:

 

  • The amount UK organisations spent on advertising products and services in 2009: US$26.8bn (£17.98bn)
  • Extrapolated from a US study of the ‘advertising supported internet’, a conservative figure indicating the difference an advertising model brings to internet-based business models: £1bn in 2008 for the UK
  • Extrapolated from a US study of the ‘consumer internet surplus’, a figure indicating how much a nation’s consumers gain from receiving ‘free’ (advertising supported) online services such as social networking, email, etc.: £6.6bn a year for the UK

In regards to other effects, international comparison data also shows a clear correlation between countries’ degree of advertising spend, or advertising spend growth, and various important economic outcomes, such as growth, innovation, and consumer tendency to spend.

 

In light of these effects, the report recommends that the contribution of complex industries such as advertising should continue to be understood as part of the broader creative industries, and of the UK’s innovation ecosystem.

 

11 October 2011

 

Commissioner Kroes sets up high level group on media plurality and independence

 

European Commission Vice-President and Commissioner for the Digital Agenda, Neelie Kroes has set up a high level group of experts to provide recommendations for the respect, protection, support and promotion of media freedom and pluralism in Europe. The group, which will be fully independent, will be chaired by the former President of Latvia, Professor Vaira Vīķe-Freiberga, while the Commission will provide the secretariat.

 

The group is to analyse and provide recommendations on issues such as limitations to media freedom/independence arising from political, private and commercial interference, the question of the concentration of media ownership and its consequence for media freedom/pluralism and existing or potential legal threats to the protection of journalists' rights and their profession in Member States. The findings of the group will be made public.

 

Vice President Kroes said: "Freedom of expression is one of the essential foundations of our democratic societies, recognised in the European Treaties and in the EU Charter of Fundamental Rights. But media freedom and pluralism also need to flourish in practice, in a favourable environment. Therefore I invite this newly created high-level group to carry out a comprehensive analysis, and come up with recommendations."

 

5 October 2011

 

Leading European & U.S. spirits producers agree on a common approach to self-regulation of digital and social media in the world’s largest advertising markets

 

Under new guidelines which came into force on 30 September, advertising of spirits drinks thorough social networking sites, blogs, mobile apps and user-generated content will be strictly controlled. The new guidelines are the result of a collaboration by the European Forum for Responsible Drinking (EFRD) and the Distilled Spirits Council of the United States (DISCUS) in a joint effort to provide a common and consistent approach to responsible advertising through social media.

 

The guidelines state that spirits marketers will:

  • Restrict access to official brand pagesfor users under 18 years old on social networking sites e.g. Facebook(based on registration information). When such registration does not exist, age affirmation mechanisms will be used prior to direct interaction with a consumer.
  • On channels not controlled by spirits marketers, only place advertising if the audience data shows more than 70% of viewers are above 18 years old.
  • Monitor brand pages on social networking sites to remove inappropriate user-generated content within 48 hours.
  • Display clear privacy policiesthat ensure compliance with data protection and privacy rules and provide for a speedy unsubscribe process in direct marketing, e.g. e-newsletters.
  • Include responsible drinking messages, preferably in the form of a consumer information website address in digital marketing communications, wherever practicable (e.g. www.responsibledrinking.eu).
  • Continue using age-checks on brand websites’access pages with date of birth and country of residence, to comply with national rules.

Due to the technological developments, the principles can be applied to current and emerging digital media thereby future-proofing guidelines for the marketing of spirit drinks.

 

Along with the new guidelines, the EFRD also published results of its independent monitoring programme assessing the spirits industry’s implementation of one its key responsible marketing commitments: only placing commercial communications in media where more than 70% of the audience is reasonably expected to be 18 years or older.

 

The report, prepared by Accenture Media Management, reviewed over 50,000 TV spots across a sample of seven EU countries and spirits advertising in the print media in six countries. While all media buying by member companies must comply with the rule on the basis of audience forecasts, the ex-post audience analysis shows that over 96 % of TV ads and 100% of magazine ads were appropriately placed in media where more than 70% of the audience were above legal purchase age.

 

4 October 2011

 

ECJ rules against prohibitions on the import, sale or use of foreign decoder cards thereby affecting television broadcasting rights

 

Two cases were brought before the ECJ based on complaints bytheFootball Association Premier League (‘the FAPL’), which runs the Premier League, the leading professional football league competition in England, and markets the television broadcasting rights for Premier League matches,concerning the territorial exclusivity of broadcasting rights for these matches.

 

The European Court of Justice (ECJ) has issued a ruling whichholds that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide servicesand cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums.

 

The FAPL gives broadcasters an exclusive live broadcasting right for the Premier League matches on a territorial basis and therefore viewers can only watch the matches transmitted by the broadcasters established in the Member State where they reside. In order to protect the territorial exclusivity, each broadcaster undertakes, in the license agreement concluded with the FAPL, to encrypt its satellite signal and to transmit the signal, so encrypted, by satellite solely to subscribers in the territory which it has been awarded.  

 

The ruling is based on two cases. The first case (C-403/08) concerns a civil action brought by the FAPL against pubs that have screened Premier League matches by using Greek decoder cards and against the suppliers of such decoder cards to those pubs. The second case (C-429/08) has arisen from criminal proceedings against Karen Murphy, the landlady of a pub that screened Premier League matches using a Greek decoder card. In those two cases, the High Court of Justice of England and Wales has referred a number of questions concerning the interpretation of European Union law to the Court of Justice.

 

In order to stop these actions, the FALP brought cases to the High Court which referred it to the ECJ. In response however the ECJ ruled that prohibiting the import, sale or use of these foreign decoder cards is illegal and, for similar reasons, a system of exclusive licences is also contrary to European Union competition law if the licence agreements prohibit the supply of decoder cards to television viewers who wish to watch the broadcasts outside the Member State for which the licence is granted.

 

On the subject of copyright, the Court notes that only the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and various graphics can be regarded as ‘works’ and are therefore protected by copyright. By contrast, the matches themselves are not works enjoying such protection.

 

15 September 2011

 

International Chamber of Commerce publishes revised Code on Marketing and Advertising

 

The International Chamber of Commerce (ICC) has released its revised Code on Marketing and Advertising.  The main changes to the new revision is the integration of the applicability of rules on digital interactive marketing communications throughout the Code and in particular the rewriting of chapter D to ensure these cover all digital interactive media techniques, platforms or devices. For the first time the Code addresses responsibility with respect to the use of online behavioural targeting in the delivery of advertisements.

 

It should be noted that since the definition of the term “child” or “young person” differs widely, the provisions outlined in this code that apply to marketing communications addressed to children and young people recommend the use of local definitions. However, in the realm of privacy and online behavioural advertising and in the absence of relevant local regulatory or self-regulatory definitions, the Consolidated ICC Code refers to “children” as 12 and under.

 

Keeping in line with consumer protection, the Code sets out rules on many marketing issues such as:

 

  • Establishing restrictions on products that may be marketed to children and information gathered from them;
  • Specifying guidelines for making responsible environmental marketing claims and creating sound food and beverage ads;
  • Setting standards for ethical behavior and transparency on digital communications for the new technology players, including mobile operators, search engines, application developers, information aggregators and data gatherers;
  • Protecting consumer privacy with clear guidance on consumers’ rights, including the right to know what information is acquired by a marketer and the standards for the collection, use and safeguarding of personal data when it is collected.

To make this code accessible to everyone, the ICC has launched a website, www.codescentre.com which is dedicated to self-regulation at global, national and regional levels.

 

While the Consolidated ICC Code is intended primarily as an instrument of self-regulation for commercial communications; its provisions may also be useful in regulating other, non-commercial forms of advertising and communication and it may be used by the Courts as a reference document within the framework of applicable legislation.

 

10 June 2011

 

European Court of Justice provides clarifications on how TV “surreptitious advertising” should be defined

 

On 10 June, the European Court of Justice (ECJ) issued a ruling concerning surreptitious advertising in the framework of a complaint made by the Greek audiovisual regulator against a Greek TV channel. The rulingprovides an interpretation of the definition of surreptitious advertising as included in the old EU Television Without Frontiers (TVWF) Directive, which remains unchanged in the current Audiovisual Media Service (AVMS) Directive. In particular, it states that an absence of payment or similar consideration from the client to the TV channel does not necessarily exclude the intention to advertise surreptitiously, which is banned according to EU regulation.

 

The judgment concerns the presentation (including information on efficacy and costs)during a TV programme of a three stages cosmetic dental treatment by a presenter and a dentist, who, in particular, describes the treatment as a “worldwide innovation”. The presentation of the service was judged by the Greek Audiovisual Authority to be surreptitious advertising and the broadcaster was therefore condemned to pay a fine of €25,000 on the ground of the EU prohibition.

 

Following the appeal by the broadcaster, the Greek Council of State referred the case to the ECJ and, in particular, raised the question on whetherthe definition of surreptitious advertising included in the TVWF Directive (which remained unchanged in the AVMS Directive) should be interpreted as meaning that the provision of payment or of consideration of another kind (i.e. for free but, for instance, in exchange of a production aid) is a necessary condition for establishing the intentional nature of surreptitious advertising.

 

According to the ECJ ruling, although the provision of payment or similar consideration is indicative of an intention to advertise, it is clear from the definition set out in the EU Directive, and from itspurpose and general scheme, that the lack of such payment or consideration does not mean that such an intention can be ruled out. In other words, the ECJ stated that the provision of payment or of consideration of another kind is not a necessary condition for establishing the element of intent in surreptitious advertising. Furthermore, given the difficulty, or even the impossibility, in certain cases of proving the provision of payment (or of consideration of another kind)for TV advertising which nevertheless displays all the characteristics of surreptitious advertising, treating payment as a necessary condition could undermine the protection of the interests of TVviewers and deprive the prohibition of surreptitious advertising of its effectiveness.

 

Please note that the case is also linked to the issue of diverging translations of the EU Directive into national languages (the Greek translation differs from the EU original text as it does not include the phrase “in particular” in the EU definition “representation is considered to be intentional, in particular, if it is done in return for payment or for similar consideration”). Based on this, the ECJ’s judgment states that the need for a uniform interpretation and application of EU law means that the text of a provision must be interpreted and applied in the light of the versions existing in the other official languages.

 

7 April 2011

 

European Court of Justice Advocate General gives opinion on long advertising formats

 

On 7 April, Advocate General Yves Bot of the European Court of Justice (ECJ) delivered his opinion on the European Commission case against Spain on the question of the legal definition of television advertising spots and other forms of advertising under the EU’s Television without Frontiers (TVWF) Directive, now revised by the Audiovisual Media Services Directive.

 

In 2007, the European Commission started an infringement proceeding against Spain for what it deemed as its failure to comply with the rules on the calculation of the limit to the quantity of advertising spots as set by the TVWF Directive. Under this Directive, as well as under its revised version which is currently in force, the time limit of 12 minutes per hour applies to the transmission of “advertising and teleshopping spots”. This notion, which is not further defined neither in the old nor in the new Directive, were interpreted by the Spanish government as a way to exclude from the calculation all longer advertising formats (such as advertorials and telepromotions) which were instead subject to a different limit of 17 minutes an hour.

 

According to the AG’s opinion, the  interpretation given by the Spanish law, which was in the meantime revised following transposition of the new EU Directive, negates the efficacy of the adopted time limits, since it allows advertisers to easily bypass the hourly limit by means of slight adjustments to the form of advertising they adopt. Therefore,the AG agrees with the Commission claim according to which the four forms of advertising identified, i.e. advertorials, telepromotion, mini-slots and sponsorship credits with promotional purposes, should adhere to the 12-minute/hour time limit.

 

Although the Opinion is not binding and Spain has in the meantime changed its rules (e.g. the law now excludes telepromotions from the calculation of the hourly limit when their duration clearly exceeds 30 seconds and subjects them to an additional limit), the initiative is likely to have an impact on the expected ECJ ruling on the Spanish case and, thus, re-open the debate at both national and EU level on long advertising formats. While the opinion concludes that, in order to protect viewers against excessive advertising, the notion “advertising and teleshopping spots” should be defined in a single harmonized manner across the EU, the new EU Directive missed the opportunity to provide such definition. It should be noted that in the majority of EU countries, the national laws that implement the new EU rules clearly exclude long advertising formats, such as telepromotion, from the calculation of the hourly limit. This interpretation is in line with egta’s position in the debate, which is based on a previous ruling issued in 1996 by the ECJ that establishes that more time consuming forms of advertising are not to be submitted to the same time limit as advertising and teleshopping spots.

 

24 March 2011

 

European Commission launches Green Paper on online gambling services, looks into commercial communications

 

On 24 March the European Commission launched a Green Paper on online gambling. Recognizing the sector as a fast developing business in Europe (total annual revenues exceeding € 6 billion in 2008 and expected to double in size by 2013), the EC remarks that national legal frameworks vary greatly in member States, with different rules applying to licensing, related on-line services, payments, public interest objectives, and the fight against fraud. Therefore the primary aim of the Green Paper consultation is to obtain a facts-based picture of the existing situation in the EU on-line gambling market and of the different national regulatory models to determine how differing models can potentially co-exist within the Internal Market.

 

In this consultation the Commission  is looking to collect detailed information and data on key policy issues such as organisation of on-line gambling services and enforcement of applicable laws; consumer protection and other relevant public policy challenges as well as payment services and commercial communications. The contributions to the consultation are due by 31 July 2011 and shall determine the need for and form of any EU follow-up action in this field.

 

On commercial communication, the Green Paper considersthat the most frequently used forms of commercial communications for gambling services are, in this order, TV advertising, press advertising, online advertising, sales promotions, direct marketing and sponsorship agreements. Nevertheless, the main focus of the consultation lies on the last three categories and, in particular, on the way they are regulated at national level and whether there are issues arising from their cross-border nature. The Commission states to be aware that, in many member States, there are restrictions on these commercial communications ranging from prohibitions to content requirementsbut nevertheless lists commercial communications among the factors that influence problem gambling among vulnerable groups. In addition, the Green Paper seems to consider “media games” as gambling service, putting in danger the significant revenue stream that call-TV formats represent for broadcasters. Finally, on the issue of minors and marketing of on-line games,the Commission is looking for information on whether commercial communications for gambling services are regulated to protect minors at national or European level (e.g. limits on promotional games, or use of social on-line networks or video-sharing for marketing purposes).

 

Previous to the Green Paper, action at European level in this field included an own initiative report by MEP Christel Schaldemose (S&D, Denmark) on the integrity of online gambling which was adopted in March 2009. Regarding advertising, the report fails to reflect that gambling advertising is being successfully regulated in certain member States and suggests a causal link between advertising and problem gambling. More recently, in December 2010 the Internal Market, Industry, Research and Space Council adopted Conclusions on the framework for gambling and betting in the EU. In its Conclusions, the Council agree that there is a need to regulate gambling services at national level by “regulatory public authorities” established according to national legislation.

 

In view of the growing potentialities that the gambling sector could represent for TV and radio sales houses, egta is going to look closely into the issue and to provide its view to the Commission in the framework of its consultation in order to voice the interest of the audiovisual sector.

 

15 February 2011

 

European Parliament resolution excludes TV and radio from CO2 emission information requirements in advertising for light duty commercial vehicles.

 

The European Parliament in its plenary session of 15 February adopted the report tabled by UK MEP Martin Callanan’s (ECR) on the draft Regulation on the reduction of CO2 emissions from light-duty vehicles (e.g. pickup trucks, vans and three wheelers). The compromise text was agreed by a significant majority of MEPs participating in the vote. The report as adopted states that the Commission should extend the scope of the CO2 labeling Directive, which applies to passenger cars, to include light commercial vehicles. The mentioned Directive establishes that it is the task of promotional literature for cars (meaning manuals and brochures at points of sales and advertisements in newspapers and magazines), and not on TV and radio advertising, to provide consumers with information on CO2 emission and fuel consumption of cars.

 

The draft report as originally published stated that advertisements for light commercial vehicles, where technical, energy or price related information is disclosed, should provide consumers with the necessary information regarding the energy performance of the vehicle. Also thanks to egta lobbying actions aimed at securing the revenues of its members TV and radio sales houses, these amendments were rejected at the responsible committee vote in September 2010 and a harmless compromise was adopted. In its letter to relevant MEPs, egta presented a set of arguments based on the following considerations: consumers, when searching for detailed information on their purchase, do not seek this information in advertising; TV and radio advertising are not well suited to carry detailed technical information; these requirements, if adopted, would obstacle car advertisers from investing on TV and radio advertisements with a significant economic impact on the sector. (For further information, you can read egta’s position paper here).

 

The text of the report will now go to legal-linguistic revision and will be formally approved without allowing any changes or further discussion by the Council. It should be noted though that while for light commercial vehicles the amendments on advertisements were rejected, concerns remain as similar provisions have been already established for other categories of products (such as household appliances).

 

15 December 2010

 

European Parliament adopts own initiative report on the impact of advertising on consumer behavior, calls for better protection for vulnerable consumers and stringent rules on online behavioral advertising.

 

On 15 December, the European Parliament’s plenary session adopted by a large majority the own-initiative Report by French MEP Philippe Juvin on “The Impact of Advertising on Consumer Behaviour”. The Report was not voted in a roll call manner but rather by a show of hands and was almost unanimously agreed upon.

 

The Resolution, which is not liked to any regulatory process, is likely to have both positive and negative impacts on the on-going debates that involve broadcast sales houses’ business. On the one hand it acknowledges that advertising is valuable for society, fostering competition and bringing benefits to consumers (offering choice and information and lowering prices) and that it is a crucial source of funding for European media. It also clearly states the role played by advertising self-regulation as a dynamic, flexible and responsible adjunct to the existing legislative framework.

 

On the other hand, the Resolution voices the concerns, currently shared by a large number of EU decision makers, regarding new types of targeted online advertising, including behavioural targeted (but also profiling, geolocalisation and hidden advertising on social networks). It is therefore likely to have weight on the ongoing discussions concerning the upcoming revision of the data protection Directive and related e-Privacy rules in view of the issues raised regarding the data collection and processing practices aimed at delivering online advertising based on the predicted interests of users (i.e. the need to enhance users’ information and control over these practices).

 

Most importantly to broadcast sales houses businesses, the Resolution strongly focuses on the protection of vulnerable consumers and, in particular, urges member States to promote greater protection of children by encouraging the media to restrict child-targeted TV advertising. According to egta, and in view of the high level of protection that the current regulatory framework and the many self-regulatory codes set towards minors, greater restrictions on TV advertising in children’s programmes would lead to fewer original European investments in children's programming, ultimately to the detriment of viewers. More effectively, to tackle the problem’s roots and invest in educating children about media, most of egta’s members participate in media literacy projects.

 

Please find here the position paper that egta, on behalf of its members sales houses, sent to relevant MEPs to counteract some of the statements included in the draft Report that might have an impact on the business of TV and radio sales houses without effectively fulfilling the purposes of the report to better protect consumers.

 

24 November 2010

 

European Parliament adopts reports addressing on-prescription medicines: advertising continues to be banned while new possibilities for patients to access information upon request are created.

 

On 24 November, the European Parliament’s plenary session adopted by a large majority two legislative Reports by Swedish MEP Christofer Fjellner (EPP group) on information to patients, in the framework of the revision of the EU regulation covering the pharmaceutical sector. The resolutions give pharmaceutical companies slightly more possibility to provide information about prescription medicines online but does not in any way apply to advertising.

 

The main point of the legislation is for patients to have better access to high-quality objective information on prescription medicines while at the same time being protected from unsolicited information or disguised advertising. The draft directive has been changed from the Commission’s original proposal as the Parliament brought further clarifications on the fact that information should be provided by pharmaceutical companies to consumers only upon request (pull rather push basis) and in no way be aimed at promoting the products’ brand to the patients. The possibility set by the Commission’s proposal to “allow” the “dissemination” of information by pharmaceutical companies to the general public was replaced in the Parliament by an “obligation” to the pharma industry to “make available” to the general public information that has “officially been approved”.

 

To further clarify the distinction between advertising and information, which in many member States constitutes a fine line, MEPs voted that companies’ information on prescription medicines should be banned not only on TV and radio, as proposed by the Commission and already the case, but also in print media. Branded information on on-prescription medicines will be allowed only on websites and if answers to specific requests by the public.

 

The resolutions did not bring any change regarding TV and radio advertising of prescription medicines. The existing ban, which applies to all media, was not under the discussion’s remit. Nonetheless, during the debate, a danger came from a Green MEP’s proposition to ban TV advertising for medicines that do not require the supervision of a medical practitioner (over the counter medicines). In view of the very consistent loss in revenues that such provision would have caused for the audiovisual industry, egta successfully engaged in extensive lobby efforts with relevant MEPs in order to secure the result of the discussion before the Report was submitted to the EP plenary session (see egta position paper). The proposition was rejected in a previous committee vote in September.

 

The dossier will now be discussed by the Council.