17. Transatlantischer Dialog Vorbild USA? – Spielräume für neue Werbeformen

1. 17. Transatlantischer DialogVorbild USA? – Spielräume für neue Werbeformen Düsseldorf, 2. März 2009 Institut für Europäisches MedienrechtInstitut du Droit Européen des MédiasInstitute of European Media LawSaarbrücken / Brüssel Alexander Scheuer, EMR

2. 17. Transatlantischer DialogVorbild USA? – Spielräume für neue WerbeformenDüsseldorf, 2. März 2009 Werbung ohne Grenzen? Rechtliche Spielräume für Rundfunkwerbung-Advertising without frontiers/limits? Room for manoeuvre provided through regulation on broadcast advertising Alexander Scheuer, EMR

3. Outline • Legal framework at EU level • Rules on av commercial communications • In particular: product placement • Conclusion Alexander Scheuer, EMR

4. Legal framework • Freedom of expression (Art. 10 ECHR, Art. 11 EU-Charter) • Freedom to provide services/free movement of goods (Art. 49/50, 28 EC) • General rules: UCP Directive • Product-specific: e.g. Tobacco Advertising Directive; Community Code on Medicinal Products • Media-specific: AVMS & eCommerce Directives Alexander Scheuer, EMR

5. Legal framework (2) • AVMS & eCommerce Directives • eCD: basic rules for ‘online environment’ • applies to on-demand services • requires transparency/recognition (= not separation) • AVMSD: specific rules for av media services • basic rules for all audiovisual media services • additional rules for television broadcasting • only for economic activities (= not political ads) • Transposition & application by Member States • Co- and/or self-regulation is encouraged Alexander Scheuer, EMR

6. Rules on av comm. communications • Directive 2007/65 (AVMSD) • Art. 1 lit. a): “‘audiovisual media service’ means: ... - audiovisual commercial communications;” • Art. 1 lit. h): “‘audiovisual commercial communication’ means images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal entity pursuing an economic activity. Such images accompany or are included in a programme in return for payment or for similar consideration or for self-promotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement;” Alexander Scheuer, EMR

7. Rules on av comm. communications (2) • Qualitative rules (on-demand & TV) • general principles • identification/recognisability • general requirements: no prejudice to human dignity, discrimination, encouragement to dangerous behaviour • protection of minors; code on HFSS in children’s ads • product-specific rules • tobacco, alcohol, medicines (prohibited/restricted) • specific requirements for • sponsorship • product placement • surreptitious audiovisual commercial communications (prohibited) Alexander Scheuer, EMR

8. Rules on av comm. communications (3) • Qualitative rules (TV only ) • general principles • recognisability; separation • use of new advertising techniques allowed • optical and/or acoustic and/or spatial means • advertising in blocks (exception: sports events) • no prejudice to integrity of programmes or to rights of right holders • Quantitative rules (TV only) • where/when, how much, how often? • movies/TV movies/news/children’s programmes: 1 interruption per 30 min. • ads and teleshopping spots: 20 per cent/hour • teleshopping windows (minimum 15 min.) Alexander Scheuer, EMR

9. Product placement Preface: role-model US? Yes and No! • Rec. 58: “... safeguard the specific character of European television, where advertising is preferably inserted between programmes, and therefore limits possible interruptions to cinematographic works and films made for television as well as interruptions to some categories of programmes that still need specific protection.” • Rec. 61: “Product placement is a reality in cinematographic works and in audiovisual works made for television, ... . In order to ensure a level playing field, and thus enhance the competitive-ness of the European media industry, it is necessary to adopt rules for product placement.” Alexander Scheuer, EMR

10. Product placement (2) Differentiating Art. 1 lit. m): “‘product placement’ means any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar consideration;” Art. 1 lit. j): “‘surreptitious audiovisual commercial communication’ means the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the media service provider to serve as advertising and might mislead the public as to its nature. Such representation shall, in particular, be considered as intentional if it is done in return for payment or for similar consideration;” Alexander Scheuer, EMR

11. Product placement (3) Differentiating (cont.) Art. 1 lit. k): “‘sponsorship’ means any contribution made by a public or private undertaking or natural person not engaged in providing audiovisual media services or in the production of audiovisual works, to the financing of audiovisual media services or programmes with a view to promoting its name, its trade mark, its image, its activities or its products;” Rec. 60: “... The prohibition of surreptitious audiovisual commercial communication should not cover legitimate product placement within the framework of this Directive, where the viewer is adequately informed of the existence of product placement. This can be done by signalling the fact that product placement is taking place in a given programme, for example by means of a neutral logo.” Alexander Scheuer, EMR

12. Product placement (4) Differentiating (cont.) Rec. 61: “... The decisive criterion distinguishing sponsorship from product placement is the fact that in product placement the reference to a product is built into the action of a programme, which is why the definition in Article 1(m) of Directive 89/552/EEC as amended by this Directive contains the word 'within'. In contrast, sponsor references may be shown during a programme but are not part of the plot.” Requirement Rec. 63: “... [sponsorship and] product placement should be prohibited where they influence the content of programmes in such a way as to affect the responsibility and the editorial independence of the media service provider. This is the case with regard to thematic placement.” Alexander Scheuer, EMR

13. Product placement (5) Rules on product placement (Art. 3g) • apply to programmes produced after 19/12/09 • general rule: prohibited • but (unless a MS decides otherwise) allowed: • in cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes • but not in children’s programmes • if only props (of significant value) • no prejudice to editorial independence, direct encouragement, undue prominence; clear information to viewers (start/end, after breaks) • 4th °: waiver possible if purchased production Alexander Scheuer, EMR

14. Product placement (6) • One example: Steven Spielberg “Duell” (1971) “Minority Report” (2002) • Questions • surreptitious advertising -> intention to promote? • Sponsorship -> significant value? • product placement -> action built-around? undue prominence? dangerous behaviour (???) “I've been driving a Lexus SUV,” said Spielberg. “I thought Lexus might be interested in going into a speculative future ...”. Are NRBs also looking forward? Alexander Scheuer, EMR

15. Conclusion • More flexibility for broadcast ‘advertising’ • More questions than answers provided by new rules • Yet unclear what MS will do • Romanian model: ‘copy-and-paste’ approach • German model: traditionally not such a ‘light-touch’ • no product placement in PSB’s programmes • Really new forms of advertising (e.g. virtual product placement) • What might be achieved by co-/self-regulation? • Whichever way of implementation, NRBs will have to spent (even more) time & money, not least because of on-demand services Alexander Scheuer, EMR

16. END Thank you very much for your attention! EMR website: http://www.emr-sb.de Alexander Scheuer, EMR