8.9.2005   

EN

Official Journal of the European Union

C 221/87

1.1

With this proposal for a recommendation (1), on the content of audiovisual and information services, covering all forms of delivery, from broadcasting to the Internet, the Commission proposes to follow up the second evaluation report, of 12 December 2003, on the application of the Council Recommendation of 24 September 1998, on the development of the competitiveness of the European audiovisual and information services industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity. (2)

1.2

The main reasons given for the need for this additional recommendation are, firstly, the challenges posed by recent developments in technology, including the power of new computers and the fact that broadband technologies allow distribution of content such as video on 3G mobile telephones. (3) Secondly, the proliferation of illegal, harmful and undesirable content and conduct in all forms of digital broadcasting, from radio and television to the Internet, continues to be a concern for the general public and in particular parents and educationalists, the industry and law-makers.

1.3

Although the Commission has its own powers to draft recommendations in this field, which does not fall within the scope of legislative harmonisation, wherever it deems this necessary to ensuring the operation and development of the common market, it wished in this case, to involve the Council and the European Parliament directly in drafting and adopting this document.

One of the recommendation's aims is to enhance the competitiveness of the European audiovisual and information industry by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity, and the Commission believes that the broader public debate, instigated by the European Parliament, together with the commitment of the Member States meeting within the European Council will make it easier to fulfil this aim. The Commission therefore proposes that Article 157 of the Treaty should be used as the legal basis for adopting the Recommendation.

1.4

In this Proposal for a Recommendation, the Commission hopes that the European Parliament and the Council recommend that the Member States establish the legal or other conditions fostering a climate of confidence which will promote the development of the audiovisual and information services industry.

To this end, it highlights four types of measures, with a view to:

1.5

The Commission believes, furthermore, that the European Parliament and the Council must recommend that the various industries and parties concerned

1.6

The Annex to the Proposal contains some indicative guidelines for the implementation, at national level, of measures aimed at ensuring the right of reply across all media including:

2.1

The issue of protecting minors against harmful content and the exercise of the right to reply in television programmes appears for the first time in Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities (4), amended by Directive 97/36/EC of the European Parliament and Council, of 30 June 1997 (5) (known as the ‘Television without frontiers’ Directive).

2.2

Nevertheless, and as the Commission recalls, the first Community text that sought to introduce a degree of regulation into the content of audiovisual and information services was the Recommendation of 24 September 1998 which, echoing the substance of the considerations contained in the Green Paper on the Protection of minors and human dignity in audiovisual and information services of 16 October 1996 (6) and the conclusions of the Resolution on illegal and harmful content on the Internet, of 17 February 1997 (7), put forward a series of recommendations to the Member States, industry and the parties concerned, to foster, mainly by means of self-regulation, a climate of confidence that would promote the development of audiovisual and information services, ensuring a high level of protection of minors and of human dignity.

2.3

As regards this important text, in its opinion of 29 April 1998, (8) the European Economic and Social Committee drew attention to various crucial aspects relating to the principles, nature, scope and content of any regulation that seeks to ensure the effective protection of minors and human dignity in the audiovisual media. In brief, it concluded by recommending a harmonised and integrated international approach to regulation on audiovisual services. It highlighted the aspects of the use of content rating systems and filtering software, clarification on responsibility for illegal and harmful content, recommending initiatives to educate and to raise the awareness of parents, educators and teachers and called for greater cooperation and coordination between European and international organisations. The opinion also proposed that a European or preferably international framework be established for codes of conduct, guidelines and grass-roots measures to ensure the suitable protection of minors and of human dignity.

2.4

Following this initial text, several initiatives with similar concerns have been adopted at Community level, by the Council and the Commission (9).

2.5

The EESC too has taken a number of initiatives that have identical concerns. The most important of these are:

The reader is referred to the considerations and recommendations contained in them.

3.1

The EESC welcomes the Commission initiative to extend and implement the EP and Council Recommendation of 24 September 1998 in the light of the results of the second evaluation report on its implementation in key aspects such as the protection of minors and human dignity, combating social discrimination in any form and ensuring the right of reply across the media, including the Internet.

3.2

The EESC acknowledges that, in the current context, the Treaty does not grant the European Union own powers to harmonise laws in the audiovisual sector but is unhappy at this state of affairs and recommends that it be addressed in the next revision of the Treaties.

3.3

The EESC finds it illogical that, in order to protect minors and human dignity, to protect honour and privacy in the media within the European Union, with the completely open borders provided for in the TV without frontiers Directive, it should be necessary to invoke as a key factor not rights relating to the personality as such, but ‘the development of the competitiveness of the European audiovisual and information services industry’. Protecting this core of fundamental citizens' rights must not be seen as a merely incidental aspect of achieving the aim of developing the audiovisual market.

3.4

The EESC does recognise, however, that given the aforementioned legal restrictions, the recommendation, broadly in the terms drawn up by the Commission, is the best way of making progress on the issues at stake. It also agrees with the legal basis suggested by the Commission for this recommendation (Article 157 of the Treaty establishing the European Communities), which is in fact identical to the legal basis used in the Council Recommendation of 24 September 1998 on developing the competitiveness of the European audiovisual and information services industry, by promoting national frameworks aimed at achieving a comparable and effective level of protection of minors and human dignity (14), complemented by the present draft recommendation and by Council Decision of 20 December 2000 on the implementation of a programme to encourage the development, distribution and promotion of European audiovisual works (MEDIA Plus — Development, distribution and promotion 2001-2005) (15).

3.5

The EESC reiterates the view expressed in the opinion (16) on the proposal for a Council recommendation on the protection of minors and human dignity in the audiovisual and information services industry (98/C 214/07), to the effect that the European audiovisual and information services industry can only achieve its full potential in a climate of confidence which, in turn, can only be achieved by guaranteeing the protection of minors and human dignity.

3.6

The EESC also confirms its belief that only a harmonised and integrated international approach to the regulation of audiovisual services can result in the effective implementation of any protection measures, in particular as regards aspects of the rating systems and filtering software and clarification on responsibility for illegal and harmful content. Hence the Committee's renewed call for greater cooperation and coordination between European and international organisations and its reiteration of the proposal to establish international codes of conduct, guidelines and grass roots measures for the adequate protection of minors and human dignity.

3.7

The EESC draws attention in particular to the definition of the concept of human dignity provided by the European Union's Charter of Fundamental Rights, which is an integral part of the European Constitution (Article I-2) and to the need, in the context of this proposal for a Recommendation, for this concept to be viewed in a way that is entirely consistent with the aim and the content of the aforementioned Charter.

3.8

The EESC believes that effectively protecting minors and human dignity in the light of technological developments in the audiovisual and information services industry requires, in particular, the promotion of media literacy ‘to enable consumers to use the media in a manner geared to the values of society and to develop a sense of judgment in these matters’  (17).

3.9

Where the Internet in particular is concerned, the EESC believes it to be crucial to coordinate policies and measures to promote literacy and the safe use of the Internet by minors, and consequently agrees with the conclusions of the European Forum on Harmful and Illegal Cyber Content: Self-Regulation, User Protection and Media Competence, organised by the Council of Europe on 28 November 2001 (18).

3.10

The EESC reiterates its support for self-regulation, where justified, and highlights the importance of using co-regulatory models because these appear to be particularly effective for implementing rules on protecting minors, as specifically mentioned in the Commission Communication, the Future of European Regulatory Audiovisual Policy COM(2003) 784 final of 15 December 2003 (19).

3.11

Without prejudice to the vital importance of initiatives to promote media literacy, the EESC welcomes the idea of establishing Community criteria for describing and identifying audiovisual content whilst stressing, however, in order to take account of specific cultural characteristics, that content should be reviewed at national and regional level.

3.12

The EESC wishes to express its support for the vast majority of very positive innovations and developments contained in the new Commission initiative, which represent significant progress in relation to its previous Recommendation. Of these it would highlight:

3.13

The EESC believes, however, that it should have been possible to take the recommended approach further, in the following ways:

4.1.1

Minors are not the only group requiring special protection from certain harmful and dangerous content, involving in particular violence, pornography and paedophilia — this also applies to other more sensitive or vulnerable groups, such as the elderly or persons with learning difficulties, and the recommendation should also take these groups into account.

4.1.2

Various aspects relating to the protection of minors, raised by the EESC in its recent opinion on the Proposal for a European Parliament and Council Decision on establishing a multi-annual Community programme on promoting safer use of the Internet (20), should be seen as useful recommendations to the Member States, to be incorporated into this Proposal for a Recommendation and including, in particular:

4.1.3

Specific concerns about Internet use must not mean, however, that less attention is paid to traditional forms of media, in particular radio and television broadcasts, where serious offences against vulnerable members of the public, particularly minors, must be dealt with as a separate issue, either through self-regulation or regulation by other bodies.

4.2.1

Protecting human dignity in the media cannot be confined to banning all forms of discrimination. Programmes with content that could undermine anyone's privacy or fundamental rights must also, where this is justified by the potential effect on society, be discussed by the competent national authorities.

4.2.2

The Member States must also be recommended, in this area, to:

4.3.1

In addition to a right of reply, provision should also be made for a ‘right of correction’, with the same general scope and in the same conditions, in order to combat false, incorrect or inaccurate content that affects people's rights.

4.3.2

It must be stated clearly that the right of reply can be guaranteed not only by legislative means but also by the use of co-regulatory and self-regulatory measures.

4.3.3

The Annex must include provisions on:

4.3.4

The first indent of the annex, which reads regardless of nationality should be expanded to read or of place of residence.

5.1

The EESC once again welcomes the proposal for a recommendation now being considered, with the reservations stated in the 'specific comments' section and, given that technological innovation and progress will create new challenges in terms of both quality and quantity, also suggests that an evaluation of the recommendation's impact on Member States, industry and the other interested parties should be made, four years after its adoption.

5.2

Bearing in mind the evaluation process referred to in the previous point, the EESC suggests that a Monitoring Centre should be set up, with the task of systematically charting the measures promoted by the Member States, by industry and parties involved in implementing this recommendation.

a)

Decision No 276/1999/EC of the European Parliament and of the Council of 25 January 1999 adopting a multiannual Community action plan on promoting safer use of the Internet by combating illegal and harmful content on global networks, mainly as regards protecting children and minors (in OJ L 33 of 6.2.1999 amended by Decision 1151/2003/EC of 16 June 2003, in OJ L 162 of 1.7.2003, extending the action plan for two years).

b)

the Commission Communication of 14 December 1999, on Principles and guidelines for the Community's audiovisual policy in the digital age, which states that the framework must also guarantee effective protection of society's general interests, such as the freedom of expression and right of reply, protection for authors and their works, pluralism, consumer protection, the protection of minors and of human dignity and the promotion of linguistic and cultural diversity (COM(1999) 657 final).

c)

the Council Conclusions of 17 December 1999 on the protection of minors in the light of the development of digital audiovisual services, which highlight the need to adapt and complement current systems for protecting minors from harmful audiovisual content, in the light of ongoing technical, social and market developments (in OJ C 8 of 12.1.2000);

d)

Directive 2000/31/EC of 8 June 2000 on electronic commerce, which contains provisions relevant to the protection of minors and human dignity, in particular Article 16(1)(e), according to which Member States and the Commission are to encourage the drawing-up of codes of conduct regarding the protection of minors and human dignity (in OJ L 178 of 17.7.2000);

e)

Commission Communication: Creating a Safer Information Society by improving the Security of Information Infrastructures and Combating Computer-related Crime, which proposes an entire range of legislative and non-legislative measures to react against infringements of privacy, unauthorised access, industrial sabotage and abuse of intellectual property (COM(2000)890 final: rapporteur, Mr Dantin, and the Proposal for a Framework Decision on attacks against information systems, which succeeded it (COM(2002) 173 final of 19.4.02 and the opinion of 28.11.01, in OJ C 48 of 21.1.02: Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on network and information security: proposal for a European policy approach: rapporteur, Mr Retureau.

f)

Evaluation Report to the Council and the European Parliament on the application of Council Recommendation of 24 September 1998 concerning the protection of minors and human dignity, which describes the results regarding the recommendation's application as ‘encouraging’. The report also, however, highlights the need for users to be more closely involved and for more time to be allowed for fully applying the recommendation. These points were highlighted in the Council conclusions of 23 July 2001 on the Commission's evaluation report (in OJ C 213 of 31.7.2001.

g)

the Fourth Report from the Commission on the application of Directive 89/553/EEC Television without Frontiers, adopted on 6 January 2003, the annex to which, in its work programme for reviewing the directive, proposed holding a public consultation which addressed, inter alia, the problems of protection of minors and the right of reply (COM(2002) 778 final of 06.1.03. The public consultation was based on discussion papers published on the Commission website: http://europa.eu.int/comm/avpolicy/regul/review-twf2003/consult_en.htm.

h)

the second evaluation report on the Council recommendation of September 1998 referred to above and adopted on 12 December 2003, which contains a critical analysis of the measures adopted by the Member States and at EU level;

i)

the Commission Communication on the Future of European Regulatory Audiovisual Policy, which sets out the medium-term priorities for Community policy on regulating the sector under discussion against the backdrop of an enlarged Europe and in which, taking into account the concerns expressed in the public consultation process for the TWF Directive, the Commission referred to the need to update the Recommendation on the protection on minors and human dignity, focusing on the development of self- and coregulatory models, in particular with a view to the online environment, in order to ensure due respect for the principles of protection of minors and public order. The Commission also announced that it would adopt the idea of a right of reply that applies to all forms of media, and which could initially be enshrined in the Recommendation on the protection of minors and human dignity, COM(2003) 784 final of 15.12.03.

j)

the recent Proposal for a European Parliament and Council Decision on establishing a multiannual Community programme on promoting safer use of the Internet and new online technologies focusing on the end-users – particularly parents, educators and children (COM(2004) 91 final of 12.3.04).