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

Alexander Scheuer, EMR

17. Transatlantischer

Dialog

Vorbild USA? – Spielräume für

neue Werbeformen

Düsseldorf, 2. März 2009

Institut für Europäisches MedienrechtInstitut du Droit Européen des Médias

Institute of European Media Law

Saarbrücken / Brüssel


Dialog


neue Werbeformen




Dialog


neue Werbeformen


17. Transatlantischer Dialog

Vorbild USA? – Spielräume für neue Werbeformen


Werbung ohne Grenzen?

Rechtliche Spielräume für Rundfunkwerbung

-Advertising without frontiers/limits?

Room for manoeuvre provided through regulation on broadcast advertising



Dialog


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Outline

• Legal framework at EU level• Rules on av commercial

communications• In particular: product placement• Conclusion



Dialog


neue Werbeformen


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



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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



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• 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;”

Rules on av comm. communications



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– 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)

Rules on av comm. communications (2)



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– 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.)

Rules on av comm. communications (3)



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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.”

Product placement



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DifferentiatingArt. 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;”

Product placement (2)



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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.”




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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.”

RequirementRec. 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.”




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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




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• One example:Product placement (6)

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?



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• 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

Conclusion



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Thank you very much for your attention!

EMR website:

http://www.emr-sb.de

END

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

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