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Save the Children: The Protection of Minors in the Information Society and the Audiovisual Media Services Directive

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Abstract

The protection of underage viewers against programmes harmful to their development has been a long-standing concern in national broadcasting systems and was recognized by the Television Without Frontiers (TWF) Directive as a fundamental issue in European audiovisual regulation. Policy discussions accompanying the most recent reform of the Directive confirmed the need to ensure adequate protection also in the context of on-demand services, while disagreeing over the method by which this should achieved. This article outlines the evolving regulatory regime for the protection of minors against unsuitable programming and presents the legislative proposals drafted by the institutions in the course of the ongoing reform process. The analysis demonstrates that while the concern for protecting minors perseveres in the face of the new Directive’s response to audiovisual convergence, the envisaged rules for on-demand services lead to a noticeable differentiation of the basic regulatory tier, and a concomitant concern for the effectiveness of protection.

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Notes

  1. Penultimate recital of Directive 89/552/EEC.

  2. Article 22 (2) of Directive 89/552/EEC.

  3. Directive 97/36/EC.

  4. Recital 40 of Directive 97/36/EC.

  5. Article 22 (2) and 22 (1), Directive 97/36/EC.

  6. Article 22a, Directive 97/36/EC.

  7. Article 22 (3) of Directive 97/36/EC.

  8. Report on the application of Directive 89/552, COM(95) 86, p. 15.

  9. Article 2a (1) of Directive 97/36/EC.

  10. Case C-327/93 Regina v Secretary of State for the National Heritage ex parte Continental Television and Others (Red Hot Television) [1993] 3 CMLR 387 (CA); Case C-222/94 Commission v United Kingdom [1996] ECR I-4025; see also Commission decisions C(95)2678 and C(96)3933 as well as the first implementation report published by the Commission, COM(95) 86, pp. 15–17.

  11. Cf. Case T-69/99 Danish Satellite TV (DSTV) A/S (Eurotica Rendez-Vous Television) v. Commission [2000] ECR II-4039; Smith (2006), p. 117.

  12. For a similar conclusion, see Katsirea (2005), p. 123.

  13. COM(96) 487, 16.10.1996.

  14. Recommendation 98/560/EC, OJ L 270, 7.10.98, p. 48.

  15. COM(2002) 778, 6.1.2003.

  16. Cf. Discussion Paper 4 “Protection of minors and public order – The right to reply,” 17.3.2003, available from: http://ec.europa.eu/avpolicy/docs/reg/modernisation/2003_review/twf2003-theme4_en.pdf and Issue Paper 5 “Protection of minors and Human Dignity, Right of Reply,” 11.7.2005, available from: http://ec.europa.eu/avpolicy/docs/reg/modernisation/issue_papers/ispa_minors_en.pdf.

  17. Discussion Paper 4, 17.3.2003, p. 2.

  18. Issue Paper 5, 11.7.2005, p. 2.

  19. COM(2005) 646, 13.12.2005; for an initial analysis of the proposal, see Scheuer (2006)., and for a brief historical introduction to the review process, Pimentel (2005). Lievens (2006) provides a primer on general regulatory trends shaping the proposal with a special emphasis on the protection of minors.

  20. Issue Paper 5, 11.7.2005, p. 2; COM(2005) 646, p. 5. Lutz (2006) offers a critical analysis of this distinction as the basis for the proposed regulatory framework.

  21. COM(2005) 646, p. 11.

  22. See Commission MEMO/06/419, 9.11.2006, available from: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/06/419&format=HTML&aged=0&language=EN&guiLanguage=en.

  23. Article 1 (6) of the proposed amending Directive, supra n. 20.

  24. See the consultation paper “Child safety and mobile phone services,” at p. 25, available from: http://ec.europa.eu/information_society/activities/sip/docs/public_consultation_mobile/sip_public_consultation_2006_en.pdf.

  25. Article 1 (2) of the proposed amending Directive, supra n. 20.

  26. The prohibition also extended to audiovisual commercial communications, cf. Article 1 (6) of the proposed amending Directive, supra n. 20.

  27. Article 1 (2) of the proposed amending Directive, supra n. 20.

  28. P6_TA-PROV(2006)0559.

  29. P6_TA-PROV(2006)0559, Amendment 100; emphasis in original.

  30. In fact, it was thanks to a suggestion by Parliament that the option of considering self-regulatory mechanisms as a means of ensuring effective compliance with the Directive was introduced into the draft; cf. P6_TA-PROV(2006)0559, Amendment 82, Amendment 91.

  31. COM(2007) 170, 29.3.2007.

  32. Parliament notably failed in widening the remit of Article 22 (1) to cover audiovisual media service in general, which would have provided for a general ban on seriously harmful content in non-linear services alongside the prohibition against insufficiently protected modes of distribution of Article 3d. The attempts to strengthen the protection of minors in non-linear services by adding to the latter provision commitments to induce the development of a Community-wide “labelling, assessment and filtering system” (cf. above) by industry and to promote greater control by parents and carers did not meet with approval either. Symbolically references to labelling as a means of protecting minors and human dignity and to a general ban of child pornography through criminal law provision in each Member State did enter into the Recital of the Directive (cf. Recital 32, 32a).

  33. Directive 2007/65/EC of 11.12.2007 (the AVMS Directive), OJ L 332, 18.12.2007, p. 27.

  34. The OPTEM (2007) study provides numerous examples of the ignorance of certain dangers and problems prevailing among underage users, as well as of the divergences between reported risk-prevention strategies and actual behaviour.

  35. For evidence on the effect that mobile service delivery has in this regard, see OPTEM 2007, pp. 7; 30.

  36. Cf. Recital 17 of Directive 2007/65/EC.

  37. Recommendation 2006/952/EC, OJ L 378, 26.12.2006, p. 72.

  38. Recital 45 of Directive 2007/65/EC.

  39. Article 3 (4) of Directive 2000/31/EC.

  40. Article 2a (4) (a) (i) of Directive 2007/65/EC.

  41. Article 2a (4) (a) (ii) of Directive 2007/65/EC.

  42. This is likely to remain the case, for as Smith (2006, p. 116) notes, the Commission has committed itself to only reviewing Member States’ assessments against ‘factual and legal considerations’ while refraining from any type of moral judgment in the context of child protection.

  43. A recent study conduced on behalf of DG Information Society demonstrates that this applies in particular to the group of minors themselves who are often surprised by the content of the material that they inadvertently happen upon while using services such as the Internet; cf. OPTEM (2007). The forthcoming Commission Communication on media literacy (Reding 2007) will play a defining role in elaborating how European policy intends to promote and contribute to such awareness.

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  1. Centre for Regulatory Governance, University of Exeter, Amory Building A236B, Rennes Drive, Exeter, EX4 4RJ, UK

    Oliver C. Füg

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Füg, O.C. Save the Children: The Protection of Minors in the Information Society and the Audiovisual Media Services Directive. J Consum Policy 31, 45–61 (2008). https://doi.org/10.1007/s10603-007-9059-9

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