ACT / Media Matrix

Jurisdiction & CircumventionJurisdiction & CircumventionChris QuinlanOctober 2000

TopicsTopics

Freedom of movement: Country of originExceptions from Country of Origin

principleWhich country has jurisdiction?

Freedom of movement: Freedom of movement: Country of origin/jurisdictionCountry of origin/jurisdiction‘Television Without Frontiers’ Directive

’89/’97, Article 2To create certainty in regulation and

enforcementTransfrontier channels regulated by rules

applying in their country of originReceiving countries forbidden from

blocking retransmission

‘‘Exceptions’ to country of origin Exceptions’ to country of origin principleprincipleCurrently around 6 ‘exceptions’Majority are case law based

COEArt 3a

SVT

TV10

De Agostini

Art. 2a(2)

‘‘Exceptions’: Article 2a(2)Exceptions’: Article 2a(2)

Provisional suspension, pending Commission decision

Channel carries programmes posing serious threat to children (e.g. porn, gratuitous violence), or incite hatred re race, sex, religion

3 separate infringements in 12 months, written warning, plus ‘arbitration’ period

‘‘Exceptions’: TV10 caseExceptions’: TV10 case

Channel wholly or principally directed at one receiving Member State

Channel established in another Member State to avoid rules in receiving Member State

BUT: Burden of proof on receiving country to establish avoidance

‘‘Exceptions’: De Agostini caseExceptions’: De Agostini case

Draws distinction between a channel and the advertising it carries

Permits action by receiving Member State against an advertiser using a transnational channel, where the advertising is judged misleading under receiving country’s laws

Case draws heavily on Misleading Advertising Directive 1984

Opens a doctrine of indirect restriction on retransmission

‘‘Exceptions’: SVT Exceptions’: SVT (seal hunters) case?(seal hunters) case?

Defamation case Only transfrontier element is ‘overspill’Will it follow De Agostini principle?Art 23, TVWF: Right of Reply?

‘‘Exceptions’: Article 3a Exceptions’: Article 3a (listed events)(listed events)

Art 3a is a derogation from the country of origin principle

TVWF Contact Committee has extended this derogation

UK/Denmark – first test case

‘‘Exceptions’: Non-EU/EEA Exceptions’: Non-EU/EEA reception countryreception country

Art. 2, TVWF does not apply to receiving country

Council of Europe Convention may applyArticle 16 may give right to block

advertising on certain channels

Conclusion:Conclusion:

Country of origin principle has been weakened BUT country of origin provides certainty of

regulation and enforcement Growth of digital & on-line technologies,

broadband, ADSL etc. make need for country of origin control greater

First Key is greater liaison between countries (EPRA) to direct problems to country of origin

Second Key is certainty in identifying the country of origin/jurisdiction

Identifying Identifying country of jurisdictioncountry of jurisdiction’89 Directive: Ill-defined ground-rulesCase law clarified: VT4, TNT/Cartoon &

UK v Commission cases…“where decisions covering programme policy are taken and the programmes to be broadcast are finally put together”

BUT ’97 Directive didn’t precisely codify the case law…

Identifying Identifying country of jurisdictioncountry of jurisdiction

Channel established in MS of its Head Office,

IF ‘significant’ part of broadcasting workforce operates from there

If not, in MS where programme scheduling decisions taken,

IF ‘significant’ part of broadcasting WF operates there

Otherwise, in MS where it first broadcast,

IF it [pays taxes] there

If HQ, or place where scheduling decisions taken, located in non-MS, Channel established in whichever country is a MS

Identifying Identifying country of jurisdictioncountry of jurisdictionIf none of above, attention turns to the broadcaster’s signal:-

Satellite frequency granted by country of origin

Satellite earth station situated in country of origin

Satellite up-link situated in country of origin

Countries applying for EU Countries applying for EU membershipmembershipConcerns probably similar to existing EU

nations:-Programme content/protection of minorsCarriage of advertising/ sponsorshipDomestic foreign ownership restrictions

on broadcastersBUT the EU is first & foremost an internal

market ‘without frontiers’

Countries applying for EU Countries applying for EU membershipmembership

The way forward:-Better communication between countries

(EPRA)Clarity in determining country having

jurisdictionWhere necessary, negotiate transitional

periods