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EPC media alerts: January 2003

The monthly update on EU media issues

Rome II

Schroder case highlights problems with Rome II

Rome II, the contentious the law relating to non-contractual obligations which the Commission is attempting to harmonise, was the subject of a recent Hearing attended by the EPC. This issue has been brought into the spotlight by the recent attempts by Germany’s Gerhardt Schroder to place an injunction against the UK’s Mail on Sunday which went ahead and published a story on his private life.

The EPC presented the following arguments at the Hearing:

  • the new rules are unlikely to improve the situation
  • internal market issues should be solved based on mutual recognition and country of origin principles
  • under the new rules, publishers would need to take account of individual member states' laws
  • there is disparity between the treatment of online and offline content
  • the European Parliament should be included in the process

The EPC hopes that its concerns will be reflected in the revised document due to be published by the Commission ‘before the end of the Greek Presidency’.

Click here for the Rome II fact sheet.


Market abuse and financial journalism

EPC seeks clarification on proposed Market Abuse Directive

The EPC has written to the Chairman of CESR the Committee of European Securities Regulators to seek his urgent clarification in relation to paragraph 103 of "CESR's Advice on Level 2 Implementing Measures for the Proposed Market Abuse Directive."

One of the concerns raised by representatives of European newspapers and other media at a recent meeting was the treatment of factual news reports of third party investment recommendations. Recommendations of these kinds, often originating from investment banks and brokers, are widely reported in the financial pages of newspapers, usually in very brief references.

Assurances were apparently given at this meeting by CESR and subsequently by the European Commission that it was not the intention that the CESR Level 2 advice would cover news reporting of this kind.

However, the current text of CESR's new Level 2 Advice on the implementation of the Market Abuse directive does not appear to reflect these assurances.

Paragraph 103 reads as follows:

"Where disseminators summarise or make substantive reference to Relevant Information produced by a third party, they should ensure that the summary or this reference is clear and not misleading. They should also indicate how the source document and disclosure of interests or conflict of interests of the third party can be obtained or accessed provided that such information is publicly available".

This text appears to cover news reporting of third party recommendations. If that is the case, it would cause many practical problems for newspaper publishers in the EU. The EPC is seeking clarification of this point and has urged CESR to address this issue directly with the European Commission on its behalf.

Click here for the market abuse fact sheet.

Internet regulation

Indiscriminate policing of Internet content threatens freedom of expression

The Law Commissioners of England and Wales have produced a study showing that increasing numbers of Internet Service Providers (ISPs) are being put under pressure by companies to remove content which they may consider libellous. It would seem that ISPs are removing content before checking whether or not this is the case. The author of the study, Professor Beale, concluded: "There is a possible conflict between the pressure to remove material and the emphasis placed on freedom of expression by the European Convention of Human Rights".


Council of Europe assesses ongoing freedom of expression issues

Still on the subject of freedom of expression, the Council of Europe has produced a paper on freedom of expression in the media. It is clear that, since the adoption of a previous Council of Europe recommendation, many problems persist and further serious violations of freedom of expression have taken place.

The paper notes that:

  • there is violence against journalists, including murder;
  • there is imprisonment of journalists;
  • there is legal harassment, such as defamation suits and huge fines;
  • there are broadcasting laws which allow direct government interference;
  • there is violation of journalists’ right to protect their sources;
  • there are threats to media pluralism.

A country by country breakdown of the situation is available from EPC on request.


Commission wants greater protection for databases

The Commission has submitted a position paper to WIPO on database protection. In the paper it stresses the need for databases in a modern society and the need to protect them from piracy. The Commission argues that ‘sweat of the brow’ databases which involve a certain level of investment or effort should be protected. It argues that this protection will stimulate the economy and encourage the creation of more databases and should be extended to the international level.


Tobacco advertising - Council favours tobacco ad ban

In December, the Council of Health Ministers voted to support the European Parliament’s position on the tobacco advertising directive which favours a ban. All of the ministers except for Germany and the UK voted in favour of an advertising ban on tobacco products in newspapers, on the internet on the radio as well as the sponsorship of sports events such as Formula One racing.

It is thought possible, though unlikely , that the German Government will launch a legal challenge against the directive as it successfully did with the original tobacco advertising ban and possible that some tobacco companies may also be considering legal action.

In another development, the Council also adopted a resolution on smoking prevention measures. The measures include the restriction of children’s and adolescents’ access to tobacco vending machines and to internet sales.. The resolution also calls on Member States to restrict tobacco advertising and promotion of non-tobacco merchandise, the use of outdoor billboards and posters and cinema advertising. Manufacturers will also be obliged to disclose advertising, marketing and sponsorship expenditure.

This resolution is not a legal obligation but most Member States have given it their support

Click here for the tobacco advertising fact sheet.

Sales promotion and duty to trade freely

Greek Presidency lists consumer priorities

The Greek Presidency has listed four main consumer issue priorities for its term which began on 1 January.  It intends to address the need for:

  • clarification in the area of consumer credit;
  • continued discussions on sales promotions;
  • continued discussions on the possible framework directive concerning a duty to trade fairly;
  • improved administrative co-operation in the area of consumer protection.

It is thought unlikely that much progress will be made on the sales promotions regulation, as the Council of Ministers would like to wait until the framework directive on a duty to trade fairly is concluded.

Click here for the sales promotion fact sheet.

Click here for the duty to trade fairly fact sheet.

Audio-visual and general media

TVWF work plan finally launched

The Commission launched its Television Without Frontiers work plan this month. Among the areas it would like to investigate are:

  • the link between legislative, self-regulation and co-regulation remedies
  • whether there should be better access for all to events of public importance
  • whether the right to reply when one’s reputation is damaged should extend beyond television
  • whether the criteria for defining the jurisdiction of a Member State over a broadcaster are sufficient.

Click here for the TVWF work sheet.


EPC joins EU businesses in questioning Commission proposal on marketing practices

Participating in a Commission workshop in Brussels 22-23 January, the EPC, joined by other representatives of business from all over the EU, questioned the need for a Commission proposal to harmonise legislation covering Unfair Marketing Practices.

The Commission’s objective is to increase consumer confidence in cross-border commerce. Many businesses doubt whether the framework directive will achieve this. The Commission’s own research has demonstrated that it is not differences in national laws but factors such as location, language and culture which are the significant barriers to cross-border trade. It is difficult therefore to understand how a new EU directive will have any real effect.

For more information on any of the following issues, contact Heidi Lambert Communications Tel: +44 1245 476 265.

Internet regulation
Market abuse
Tobacco advertising
Children's advertising
Jurisdiction and applicable law
Duty to trade fairly
Sales promotion


Angela Mills, Director of  EPC: Tel: +32 2 231 1299 (Brussels) or +44 1865 310 732 (UK) angela.mills@epceurope.org.

Heidi Lambert: Tel: +44 1245 476 265 heidilambert@hlcltd.demon.co.uk.