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Issues

European media and journalists' position on Article 6 and other measures concerning the press - draft Regulation on applicable to non contractual obligations (Rome II)

 

Brussels, 19 July 2023

 

For the attention of Ms. Diane Schmitt, Member of Commissioner Frattini's Cabinet - Civil Justice, Fundamental Rights and Citizenship

 

Dear Ms. Schmitt,

The undersigned European media and journalists' organisations would like to inform you on their joint position following the vote in first reading of the European Parliament on Rome II - the draft Regulation on applicable law to non-contractual obligations.

1 -ENPA, EPC, FAEP, EFJ, FEP, EBU, ACT and AER welcome Article 6 and Recital 12 as adopted by the European Parliament

The European media and journalists' representatives welcome the adoption by the European Parliament of amendments to Article 6 and Recital 12 of the Rome II proposal.

These amendments improve the Commission's proposal, as they provide for more legal certainty and a more balanced approach between individual rights (privacy) and collective rights (press freedom).

Considering that we originally supported the application of the country of origin or the exclusion of defamation from the scope of Rome II, the adopted amendments therefore represent the achievement of a reasonable compromise. However, it remains a compromise and constitutes for the media and journalists a strict minimum achievement which we ask you not to undermine.

Amendment 57 to Article 6 stipulates that, where the violation of privacy rights or rights relating to the personality is caused by a publication or by a broadcast, the country in which the most significant element or elements of the damage occur or are likely to occur "shall be deemed to be the country to which the publication or broadcasting service is principally directed".

This principle is a step forward compared to the Commission proposal because it provides legal certainty and predictability as to the applicable law in case of defamation. The criteria, such as the language of the publication or broadcast or the sales or audience size in a given country as a proportion of total sales or audience size or a combination of these factors, are necessary to define the wording "principally directed".

Furthermore, in case this principle ("principally directed") does not enable to determine the applicable law, the insertion of the law of the country in which the editorial control is exercised is also indispensable, in particular for international publication or broadcast, for which it will be very difficult to foresee the applicable law.

Finally, the respect of press freedom is strengthened in Amendment 56 to Recital 12, which indicates that Rome II does not prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media.

Our recommendation: in view of the future discussions on Rome II in the Council Committee and in the European Commission, we recommend Member States' representatives and the Commission to support the amendments 56 and 57 to Recital 12 and Article 6 adopted by the European Parliament as they provide legal certainty and a balanced approach as regard freedom of the press and privacy.

2 - However, Recital 12a) new and Article 26a new are not compatible with Rome II

The European media and journalist's representatives are concerned that two new provisions have been inserted by the European Parliament in the scope of Rome II.

Recital 12a new (amendment 10) and Article 26a new (amendment 54) notably refer to the establishment of "a self-obligating European Media Code and/or a European Media Council". They also indicates that "the Commission is called on to consider what scope there is for providing support for such a process and to present recommendations, in a report, on what form more far-reaching steps should take".

We would like to emphasize that these amendments have no connection with private international law and go way beyond the objectives of Rome II, which scope is limited to the applicable law to non-contractual obligations.

We are particularly concerned about the impact of such an amendment on the ethical and self-regulatory rules which currently exist in the various Member States. These rules are based on editorial traditions and freedoms, which have evolved throughout history and are specific to each country: they are a part of the cultural diversity in the EU, which cannot be preserved if such rules are introduced at EU level. Furthermore, they are closely connected with the content of each of our sectors and could therefore be seen to impinge on fundamental rights, such as the freedom of expression.

Our recommendation: ENPA, EPC, FAEP, EFJ, FEP call on the Member States' representatives and the European Commission to reject these amendments from the scope of Rome II; they have no connection whatsoever with an instrument regulating applicable law to non-contractual obligations and with private international law. They could interfere with ethical and self-regulatory rules specific to each country, which contribute to cultural diversity, and can interfere with the editorial content of Europe's media.

We trust that you shall take account of our concerns. We remain at your disposal for any complementary information you may require.

Yours sincerely,

 

The undersigned European media and journalists organisations:

Ross Biggam - Association of Commercial Television in Europe (ACT)
Director General

Christina Sleszynska - Association of European Radios (AER)
Manager

Nicola Frank - European Broadcasting Union (EBU)
Deputy Head of Brussels Office

Arne König - European Federation of Journalists (EFJ)
Chairman

Valtteri Niiranen - European Newspaper Publishers' Association (ENPA)
Director

Angela Mills Wade - European Publishers' Council (EPC)
Executive Director

David Mahon - European Federation of Magazine Publishers (FAEP)
Director

Anne Bergman-Tahon - Federation of European Publishers (FEP)
Director

 

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For any information, please contact:

ACT - Petra Wikström
Association of Commercial Television in Europe
rue Joseph II, 9-13
1000 Bruxelles
Tél : 32 2 736 0052
Fax : 32 2 735 4172
E-mail : pw@acte.be

 

AER - Christina Sleszynska
Association of European Radios
Avenue d'Auderghem 76
1040 Bruxelles
Tel: 00 32 2 736.91.31
Fax: 00 32 2 732.89.90
E-mail: sleszynska@aereurope.org

 

EBU - Nicola Frank
European Broadcasting Union
rue Wiertz 50
1050 Bruxelles
Phone: 32 2 286 9112
Fax: 32 2 286 9110
E-mail: frank@ebu.ch

 

EFJ - Pamela Morinière
European Federation of Journalists
Residence Palace
Rue de la loi 155
1040 Brussels
Phone : 00 32 2 235 22 16
Email : pamela.moriniere@ifj.org

 

ENPA - Sophie Scrive
European Newspaper Publishers' Association
Rue des Pierres 29 bte 8
1000 Bruxelles
Belgique
Phone : 32 2 551 01 90
Fax : 32 2 551 01 99
e-mail : sophie.scrive@enpa.be

 

EPC - Angela Mills Wade
European Publishers Council
26 Avenue Livingstone
1000 Brussels
Phone: 32 2 231 1299
Fax: 32 2 230 7658
Email: angela.mills@wade.uk.net

 

FAEP - David Mahon
European Federation of Magazine Publishers
Rue d'Arlon 15
1050 Brussels
Phone: 32 2 286 80 94
Fax: 32 2 2286 80 95
Email: david.mahon@faep.org

 

FEP- Anne Bergman-Tahon
Federation of European Publishers
204, Avenue de Tervuren
B-1150 Bruxelles
Phone: 32 2 770.11.10
Fax: 2 2 771.20.71
Email: abergman@fep-fee.be

 

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