To determine the success of the common policy European Union directive regarding the amended television without frontiers act, it is necessary first to understand the objectives of the act and the broader objectives fostered by the European Union regarding television and broadcasting.
In general, the European Union aims at establishing and maintaining free movement of capital, goods and persons. There is also a general effort to establish the conditions necessary for unrestricted broadcasting across the territory of its Member States. This means that the EU generally strives to allow television broadcasting of member-state content to happen freely within the EU. The Television Without Frontiers Directive is the legal document that establishes the framework for television broadcasting activities in the EU to occur in this unrestricted fashion. Overall and most often, this directive is considered the cornerstone of the European broadcasting policy.
This should give at least some notion that it is generally considered to be a success; most specifically this success is noted in terms of its principle objective, which is to co-ordinate the national rules of Member States regarding the television broadcasting. As necessary, the Television Without Frontiers Directive looks to remove barriers established by internal markets for television broadcasting and related services within the Union and also to establish a broader means of governing the broadcasting activities of Member States as a collective unit.
Areas in which the broadcasting directive is most fundamental include in the freedom of reception and retransmission, the promotion of production and distribution of European programs to provide access to major sporting events from around the EU and establish and maintain measures to protect minors.
The Amended Television Without Frontiers Directive: Overview
Digital television first launched in Europe between 1995 and 1996. The first digital service in Europe dramatically changed the landscape for audiovisual communications and broadcasting. Increased deregulation and the introduction of new technology within the broadcasting sector appeared to pave the way for still further developments. Digital technology, from the get-go, both multiplied and diversified the broadcasting channels and services series. It also established a convergence of the telecommunications, media and information technology sectors (Aubry, 2000).
By 1997 and 1998, interested authorities had confirmation of a new trend in the broadcasting industry. The Statistical Yearbook of the Strasbourg-based European Audiovisual Observatory confirmed that the progress of digital technology in Europe was creating a significant growth in the number of broadcasting operators, particularly pay-TV and pay-per-view services. Over 330 digital channels broadcast by satellite at the beginning of 1997. In 1996, only a year before, the number of broadcasting channels was as low as ten (European Audiovisual Observatory, 1997).
By January 1, 1998, More than 480 digital programs broadcast by satellite by January 1, 1998 that could be received in parts of Europe (European Audiovisual Observatory, 1998). Seventeen pay-per-view providers were also providing customers with over 200 channels in 1998, which compared to the six services providing offering only 42 channels between them in 1996 (European Audiovisual Observatory, 1998). The trend regarding digital television was clearly that it was not only bringing more channels on the European audiovisual scene but that the entire range of the content broadcast was expanding dramatically over even a short period of time, particularly due to the special channels available via systems like pay-per-view.
As a result of the growing range of channels offered, in 1997, major European digital providers, such as Spains Canal Satellite, Germanys Premiere, and the United Kingdoms BSkyB, launched a series of new digital multichannel packages in Europe. The packages offer a very diversified range of thematic programs such as cinema, sports, information, music, and travel (Aubry, 2000).
The audiovisual products increased in range as the demand for cinema, television, video, and multimedia increased dramatically between 1995 and 2000. In particularly, the growth in total income was staggering; an estimated climb of 69% was seen during that period, accounting for an increase from euro 31,847.7 million to euro 53,871.1 million in just those five years. Much of the increase was also generated by the newly developed television systems and such new forms of audiovisual consumption as pay-per-view, video-on-demand, and multimedia service packages (Norcontel, 1997, p. 173).
In a very brief period, the landscape for audiovisual broadcasting in Europe had transformed dramatically. The industry was also subject to a large number of alliances between traditional operators of classical television and, increasingly, in paid television systems.
Both mergers and joint ventures between major and minor satellite, cable, and terrestrial provider companies were viewed favorably by the European competition authorities. The mergers and ventures were seen to ensure the development of an Information Society as they supported and often facilitated the provision of new audiovisual content and services (Aubry, 2000).
In terms of objectives, the European Commission also intends to ensure that the audiovisual market remains open to competition; therefore, it carefully sees to it that the said market not be distorted or foreclosed by dominant positions and access barriers such as exclusive broadcasting rights (particularly as regards sport events) and State aid to the broadcasting sector. The Member States have therefore to ensure that pluralism and competition are maintained in the audiovisual sector by preventing the creation of dominant positions resulting from agreements such as concentrations, mergers and acquisitions of businesses.
In response to concerns that high entry barriers were gradually being created to limit the European-wide access to broadcasts, the European Council created the Television Without Frontiers Directive on October 3rd, 1989 (Council Directive 89/552/EEC of 3 October 1989 on the co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ, 1989, p. 23). Rapid changes in the audiovisual market had been seen since the beginning of the nineties.
They required a substantial revision of the terms, however. In May, 1995, and further to the European Commission proposal, a revised version of the original Television Without Frontier Directive was put forward. The new Directive was adopted on June 30th, 1997 (Directive of the European Parliament and of the Council 97/36/EC, 1997, p. 60). This revised version provided an up-to-date regulatory framework that was adapted to reflect the needs for legislation focusing on digital broadcasting.
The particular points about the new directive included the tightening of certain legal concepts. As regards the Member States jurisdiction over broadcasters, rules governing teleshopping and the coverage of major events were introduced. The protection for children was also increased (Aubry, 2000).
According to article 2a of Directive 97/36, Member States of the EU must ensure the freedom of reception and they also cannot in any manner restrict the retransmission on their territory of television programs broadcast from other Member States that falls within the fields co-ordinated by the Directive. Essentially the only exception to the rule, the only instance in which it is permitted to restrict retransmission is in the event that, according to the provisions of Article 22, there is a serious infringement of the provisions governing protection of minors.
According to Article 2 (1) of the Directive, each Member State is responsible for ensuring that all television programs transmitted by broadcasters under its jurisdiction comply with the provisions of the Directive as well as with the national regulations applicable to broadcasts intended for the public in that Member State. It follows that the receiving State may not apply to programs emanating from another Member State legal provisions specifically aimed at controlling the content of television broadcasts at national level.
Although Member States can adopt more details or constraining rules in the areas that cover the Directive according to article 3 (1) of the Directive, rules may not be applied to programs broadcast by cross-border channels located in other Member States.
It is also worth nothing that the European Court of Justice currently distinguishes between national legislation in areas not covered by the Directive, like the protection of consumers against misleading advertising, and matters that are considered to be already fully regulated by Community law. This certainly includes regulations relating to the protection of minors.
Under certain circumstances, a receiving EU Member State has the option to adopt measures to protect the interests of consumers against national advertisers. They may not take measures to control television program broadcasts by foreign operators. Only the Member States with jurisdiction over the broadcaster concerned is responsible for its control (European Audiovisual Observatory, 1997, p 13).
The Television Without Frontiers Directive sets quota requirements for the promotion of European works on television. These provisions do not apply to television broadcasts that are intended for local audience and do not form part of a national network (Aubry, 2000).
According to Article 4 of the Directive, the Member States must ensure, where practicable and by appropriate means, that broadcasters under their jurisdiction reserve for European productions a majority proportion of air time. This doesnt include any time devoted to news, sports, games, advertising, teletext services and teleshopping.
According to Article 5, European television channels must reserve at least 10% of their transmission time to European works created by producers unaffiliated with broadcasters.
Certain flexibility is granted for the implementation of the quota requirements, however, the European Commission supervises the implementation of Articles 4 and 5 of the Directive is supervised by the European Commission. All Member States must submit to a report containing a statistical statement on the achievement of the quotas. This is required every two years and any failure to achieve the required proportion must be reported and explained. Measures must also be adopted or envisaged to remedy the situation where possible (Aubry, 2000).
In terms of its success, the Amended Television Without Frontiers Directive certainly does establish a viable means of maintaining a viable community base for television broadcasting within the European Union. Whereas limited channel choice characterized analogue broadcasting, the need for the viewer to fit in with the schedulers, and a clear understanding that the television was a device for watching broadcast programs.
Digitalization, on the other hand, creates the possibility of hundreds of channels. It essentially allows televisions to serve as a multipurpose, multimedia terminal. Digitalization allows viewers to program their own schedules, watch programs when they want, and even interacting with the programs themselves.
Overall, the EU member countries have managed to maintain a relatively unrestricted system for broadcasting content produced by other member countries. However, the amended Television Without Frontiers Directive was first implemented as a measure to combat growing efforts by EU member states to restrict such broadcasting freedoms. Only time will tell whether the commonality established by this directive will be maintained and proven successful. For one thing, the effects of digital television will be interesting to determine and watch in terms of shared broadcasting among EU-member broadcasting companies.
Audry, P. 2000. The Television Without Frontiers Directive, Cornerstone of the European Broadcasting Policy, Strasbourg: EAO.
European Audiovisual Observatory, 1997, Legal Guide to Audiovisual Media in Europe, Strasbourg: EAO.
European Audiovisual Observatory, 1997. Statistical Yearbook. Strasbourg: EAO.
European Audiovisual Observatory, 1998. Statistical Yearbook, Strasbourg: EAO.
Levy, D. A. L. 2001. Europes Digital Revolution: Broadcasting Regulation, the EU and the Nation State. London: Routledge.
Norcontel, 1997. Economic Implications of New Communication Technologies on the audiovisual markets, Screen Digest, Stanbrook and Hooper.
OJ Council Directive 89/552/EEC, 1989. The co-ordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, Official Journal of the European Union, 17 October, 1989.