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 EPC Members' Newsletter: January 2004

 
EPC MEMBERS’ DECEMBER NEWSLETTER 126



DATES FOR YOUR DIARY

KEY ISSUES OF THE MONTH
Market Abuse Update
Rome II Update
Rome I
Unfair Commercial Practices


WHAT’S NEW
Electronic Commerce

1.1 Data protection
1.2 Employees Personal Data
1.3 More international co-operation against spam

Content Regulation
2.1 Media pluralism update

Copyright
3.1 Enforcement Directive on Intellectual Property Rights
3.2 Collective Rights Management

Advertising
4.1 Tobacco update
4.2 Nutritional Claims update

Audiovisual & General Media Policy 
5.1 Consultation on spectrum implications of switchover to digital broadcasting
5.2 TVWF

General
6.1 Takeover bids
6.2 Working time directive
6.3 Recycling


DATES FOR YOUR DIARY

18th Feb, 19th & 30th March EP Debates on “Possible breach of expression and information rights in the EU and Italy”
19th February Vote on the data protection report in the Committee on Citizen's Freedoms and Rights, Justice and Home Affairs.
24th February Legal Affairs Committee vote on Unfair Commercial Practices
26th February EP Plenary discussion/vote on the Enforcement Directive on IPR
1st March Deadline for submission of comments to the Consultation on spectrum implications of switchover to digital broadcasting (Radio Spectrum Policy Group)
8th March Launch of EPC White Paper on PSBs
8th March Plenary vote on Unfair Commercial Practices
31st March Deadline for responding to the Commission consultation on the re-exam of the Working Time Directive

KEY ISSUES OF THE MONTH

Market Abuse Update

The EPC repeated its concerns about the implementing directive MADID to Commissioner Bolkestein in January and was supported by other media organisations such as the European Federation of Journalists, the European Newspaper Publishers Association and the Federation of European Magazine Publishers Association. A co-signed letter presented by these groups and a legal opinion call on the Commission to act immediately to safeguard press freedoms, which have been put under unprecedented threat by MADID. “The definition of ‘investment recommendation’ in the final text is so vague and broad that almost any financial opinion or comment on a company by a journalist will become subject to MAD regulation”, said EPC Chairman Francisco Pinto Balsemão in a January press statement. EPC is calling for supplementary guidance from the Commission to re-establish the original undertakings given by Commissioner Bolkestein before the European Parliament in October 2002.


Rome II Update

Diana Wallis, Rapporteur for the Legal Affairs Committee, presented a working document in January for her project group to consider. In this document Ms Wallis argues that in order to reduce the complexity of the legal situation of the changeover from Convention to Regulation, Rome I and Rome II should be merged into one legal instrument. She highlights the ecommerce exemption as a complicated one and points at the lack of harmonisation in substantive law across the community at the moment and raises particular concerns about this in relation to defamation.

The European Publishers Council is concerned over the suggestion to merge Rome I and Rome II seeing that the proposals are at different stages and there is no official decision on Rome I even leading to a regulation. Merging the two would compromise the quality of the discussion and the outcome particularly as the Commission would like to see both Rome I and Rome II based on the “country of residence” principle, whereas the European Publishers Council supports the “country of origin” principle.

On 22 January the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs voted on the Oreja opinion on Rome II. In the area of defamation, Mr Oreja advocated the tightening of the wording in order to only allow exceptions from the general rule if the applicable law of a country outside the EU would be a threat to freedom of speech. This differs from the Commission proposal, which allows for exceptions if any country’s law (including Member States) would be a threat to fundamental freedoms. The Committee voted to accept this amendment, which is unfortunate. Some amendments, which were supportive of the press, were presented to the Oreja report by Austrian MEP Hubert Pirker. They asked for country of origin principle to be used in cases of defamation but regrettably were not accepted by the Committee. There is a possibility of re-tabling them via the Legal Affairs Committee, which EPC will investigate further. The opinion will now be forwarded to the Legal Affairs Committee, which will vote on the amendments presented so far once the Wallis report is completed.

The Council of Ministers’ committee on Civil Law Matters met on 28 January but defamation was not discussed at this meeting. The Irish Presidency lists mutual recognition in judicial areas as one of its priorities but does not specifically name Rome II. The next Council committee meeting will discuss the article 23 on ecommerce exemption from the regulation. The UK media’s legal opinion is available on request.


Rome I

At a hearing organised by the Commission at the beginning of January a majority of the speakers spoke in favour of converting the Rome I proposal in to Community legislation and if possible marrying it with Rome II. As stated above, the European Publishers Council would oppose any such attempt and there are concerns that any changes might affect law applicable to subscription contracts if they are made across borders.


Unfair Commercial Practices Update

The vote in the EP Environment Committee on 21 January did not go well and several of the amendments opposed by the EPC were accepted. The outcome supports the addition of Article 153 provision of a 7-year derogation from Mutual Recognition and a reference to vulnerable consumers. An amendment, which would mean the inclusion of consumers in the formulation and development of codes, was accepted, as was one amendment about social, cultural and linguistic differences being taken into account. The Vote in the Legal Affairs Committee will take place on 24 February and in EP Plenary 8-11 March. Several amendments which the EPC supports have been placed before the Legal Committee so activity is focusing on getting support for these from a majority of MEPs.
 

WHAT’S NEW

Electronic Commerce

1.1 Data protection

The First Report on the implementation of the Data Protection Directive, which was presented by the Commission in May 2003, was discussed in both the Committee on Citizen's Freedoms and Rights, Justice and Home Affairs (LIBE) and the Industry Committee (ITRE) in January.

The Commission position in May of last year was that there is no need to modify Directive (95/46/EC) at this stage. The Commission explains this position by stating that there is limited experience of the Directive (most Member States notified the implementing measures to the Commission in 2000 and 2001) and that it was possible to address problems without amending the Directive (in some cases problems have been caused by incorrect implementation).

In Parliament, LIBE is the lead committee on this issue and the Rapporteur is Marco Cappato. In the January meeting, Cappato presented his draft report and said he agreed with the Commission that there had been problems with implementing the Directive but that this should not lead to a change in the current legislation.

The Cappato report will be voted in Committee on 19 February and in Plenary in March.

Meanwhile the Industry Committee adopted Myrsini Zorba's opinion and suggested amendments on the same issue. The Committee also focuses on the implementation procedure and does not call for a modified Directive.

1.2 Employees Personal Data

The Commission is in the process of finalising a draft human resources directive covering the protection of workers’ personal data in the workplace. This follows on from the unsuccessful social dialogue between business representatives and trade unions that ended last year. The draft text is being prepared by DG Employment and Social Affairs

The draft apparently would take some of the more "onerous" Member State legislation already existing in this area and establish it as EU-wide law (this could be based on existing measures in Germany).

DG Internal Market is said to be lukewarm on the issue. The issue of data protection is normally its domain so this DG would naturally object to other DGs interfering in the area.

1.3 More international co-operation against spam

The Organisation for Economic Cooperation and Development (OECD) and the European Commission held a conference on the issue of spam in Brussels in the beginning of February. The major outcome of the conference was that there are movements among the International regulators to start to co-operate, no matter what legislation they have put into place. All major markets now have some sort of regulation that deals with the issue of unsolicited commercial e-mails:

  • the EU has the e-Communications Directive,

  • the US has its Can-Spam Act,

  • Australia has passed an opt-in regulation,

  • and Korea and Japan have based their approach on opt-out.

Another interesting trend discussed during the conference was the call to trace the money made from spam. There was a call to focus on the point where a transaction took place between the spammer and the person to whom the spam was sent, as well as the transaction between a credit card company and the spammer or buyer of spam.

Commissioner Likkanen called on the OECD countries to agree on a framework, which should aim to promote:

  • effective 'anti-spam' laws in all countries;

  • cross-border cooperation on enforcement;

  • self-regulatory solutions (such as contractual and marketing practices);

  • technical solutions to manage or reduce spam (such as filtering and other security features); and

  • greater consumer awareness (such as how to minimise spam and how to react to spam and complain)


Content
Regulation

2.1 Media pluralism update

In January MEP Johanna L.A. Boogerd-Quaak presented her working document on “the risks of violation, in the EU and especially in Italy, of freedom of expression and information (Article 11(2) of the Charter of Fundamental Rights)” to the EP Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs. Boogerd suggests a series of monitoring activities, “with a view to identifying the real problems affecting media pluralism in the EU Member States”. She would like the European Parliament to look at pluralism with regard to sources, content, ownership, conditions (technological, logistic, economic and financial) enabling the coexistence of competition and pluralism. She also called for an investigation into the existence of suitable conditions for the protection of the independence of media professionals in relation to external pressures. According to Boogerd her report, which is scheduled to make it through first reading before the end of the mandate of this Parliament, will also consider the particular situation in Italy. Before the adoption, the Rapporteur would like to organise one or two round tables and a joint meeting with the Culture Committee to which the concerned Commissioners (Mrs Reding, Mr Liikanen, Mr Monti, Mr Vitorino and Mr Bolkestein) will be invited.


Copyright

3.1 Enforcement Directive on Intellectual Property Rights

At the time of writing, the discussions on the Enforcement Directive on IPR are intense in Parliament, Council and Commission. Tripartite meetings take place every week in the hope of reaching some kind of compromise in first reading. The debate and vote on the Fourtou report have been scheduled to take place in Plenary on 26 February. As a member of the Anti Piracy Coalition, the European Publishers Council, is actively involved in lobbying for a strong directive to combat piracy.

3.2 Collective Rights Management

The own-initiative report on a “Community framework for collecting societies for authors' rights”, written by MEP Raina Mercedes Echerer, was adopted by Parliament in January.

The report points out that collective management societies are still lacking for some sectors, right-holders and repertoires in the new Member States. It calls on the Commission to, among other things, monitor “the vertical concentration of the media and its effect on the exercise of rights” and to take due account of the cultural dimension of the collective management of rights. The Commission is due to publish a Communication shortly, outlining possibilities for legislation on collective rights management.


Advertising

4.1 Tobacco update

In addition to the complaint filed by the German Government last September 2003, Kreuzer Medien GmbH filed a complaint with the Court of First Instance against the Council of the European Union and European Parliament on advertising and sponsorship of tobacco products. The case is still considered as rather "new" and the parties are currently preparing written exchanges, which could take another five-six months. It's worth noting that the Court did not dismiss the case as "not admissible" right away but apparently the Council and Parliament can still put forward an "objection of admissibility".

4.2 Nutritional Claims update

The Parliament organised a hearing on the issue in the beginning of January. Representatives of the food industry and food trade expressed criticism especially with regards to the proposed establishment of a nutritional make-up or profile for food (Article 4) and those concerning restrictions on types of claim (Article 11). David Byrne, Commissioner for health and consumer protection, confirmed in his intervention that there would be a list of permitted claims and was questioned on this by the Rapporteur from the Committee for Environment, Public Health and Consumers, Mauro Nobilia. In Mr Nobilia’s report, which will be discussed by his fellow committee members in mid February, there is even a suggestion for lifting out Article 4 on nutritional profiling and creating a separate Directive on this issue. The Plenary discussion is scheduled for March. A separate directive on food labelling is due out anytime.


Audiovisual & General Media Policy

5.1 Consultation on spectrum implications of switchover to digital broadcasting

The Radio Spectrum Policy Group, established by the Commission in 2002, has invited radio spectrum users to give their opinion on the following questions, related to the switchover to digital broadcasting:

  • How can co-ordination between Member States on spectrum management, at bilateral and EU level, contribute to a quick and efficient switchover?

  • In particular, what would be the added value from EU co-ordination ahead of the Regional Radio Conference starting in 2004 and other international negotiations?

  • Are greater transparency and technological neutrality of spectrum assignment, notably through valuation and market tools, instrumental to switchover?

  • What will be the “spectrum dividend” from switch-off, and how should this be allocated to specific services?

  • Does convergence require more flexible allocation mechanisms than traditional ones, which tightly link frequency bands and individual communication services according to ex ante decisions?

Responses should be sent exclusively to infso-rspg@cec.eu.int for the attention of the RSPG Secretariat. Deadline for submission of comments: 1 March 2004

5.2 TVWF

There will be several focus groups meeting during 2004 on the following subjects:

  • regulation of audiovisual content

  • the level of detail in the regulation of advertising

  • the right to information and right to short reports

EPC is particularly concerned about where the discussion on the regulation of audiovisual content might lead and has asked the Commission to involve us in these groups which will start meeting shortly

Studies will be available on the following issues:

  • Comparative study on the impact of control measures on the television advertising markets in European Union Member States and certain other countries. (Due to be completed 2005)

  • Study services covering the following domains: 1) Study on national systems of State aid for film and audiovisual productions, 2) Study on co-regulation measures in the media sector, 3) Study on 'must carry' requirements for radio and television services

  • Study on the impact of measures concerning the promotion of the distribution and production of TV programmes (Community and national) provided for under Article 25(a) of the TWF Directive. A “clarification meeting” will take place on 24th April 2004

  • Study on co-regulatory measures in the media sector

  • Study on the regulatory treatment of interactive television


General

6.1 Takeover bids

The Council voted without debate on December 22 to formally adopt the political agreement on the new Directive on takeovers. An agreement in principle had been reached already at a previous Council and, as reported in the last EPC newsletter, the Parliament chose to back the compromise package in Plenary on December 16.

The Commission has indicated that it is not in a position to support this text as it leaves Member States will too much discretion, which will not create a level playing field. Media companies should be aware that MS have a choice in the key area of defensive measures and should be in contact with their national governments to ensure a media friendly regime is adopted nationally.

6.2 Working time directive

On 5 January the Commission launched a consultation on the Working Time Directive and the famous “opt-out”, which allows individuals to waive their rights under the directive. Although opt-outs are not exclusive to the UK, they are most widely used there. The deadline for responses to the consultation is 31 March 2004.

6.3 Recycling

At the beginning of January the Parliament organised a hearing on the Commission draft “thematic strategy on the prevention and recycling of waste”. Margot Wallström, Commissioner for the Environment, reported that her DG had received 203 contributions to the consultation on the strategy, which was held until November 2003 although none of these came from the accession countries. According to Wallström, the strategy will be adopted during the summer 2004. Pat the Cope Gallagher, Minister of State at the Department of Environment and Local Government in Ireland said the Irish Presidency would like to see some points of the strategy more detailed and that the Environment Ministers would be discussing this in May and June. The first part of the hearing was dedicated to "waste management policy", the second to "prevention of waste" and the third to "recovery and recycling of waste" (including a discussion on material based targets).

 
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