COMMON POSITION (EC) No 24/2006
adopted by the Council on 18
September 2006
with a view to the adoption
of Recommendation 2006/.../EC of the European Parliament and of
the Council of ... on the
protection of minors and human dignity and on the right of reply in rela-
tion to the
competitiveness of the European audiovisual and on-line information services
industry
(2006/C 295 E/02)
THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- their content is legal,
respects the principle of human
PEAN
UNION,
dignity and does not impair the overall development of
minors.
Having
regard to the Treaty establishing the European Com-
munity,
and in particular Article 157 thereof,
Having
regard to the proposal from the Commission,
Having
regard to the Opinion of the European Economic and
Social
Committee (1), (5) The Community has already intervened
in the field of
audiovisual
and information services in order to create
the necessary conditions to ensure the free movement of
After
consulting the Committee of the Regions, television broadcasts and
other information services, in
compliance with the principles
of free competition and
Acting
in accordance with the procedure referred to in freedom of expression and
information, but it should act
Article
251 of the Treaty (
with greater determination in
this area with the aim of
2),
adopting measures to protect consumers from incite-
ment
to discrimination based on sex, racial or ethnic
Whereas:
origin, religion or belief, disability, age or sexual orienta-
tion and of combating any such discrimination. Such
action should strike a balance between the protection of
(1) The Charter of Fundamental Rights of
the European
individual rights on the one hand and freedom of
Union (3) (`the Charter') declares
in Article 1 the inviol- expression on the other, in particular with
respect to
ability of human dignity, providing
that it must be
Member States' responsibility for defining the notion of
respected and protected. Article 24
of the Charter
incitement to hatred or discrimination in accordance
provides that children have the
right to such protection
with their national legislation and moral values.
and care as is necessary for their
well-being and that in
all actions relating to children,
whether taken by public
authorities or private
institutions, the child's best inter-
ests must be a primary
consideration.
(2) The European Union should gear its
political action to
preventing any form of violation of
the principle of
respect for human dignity.
(6) Council Recommendation
98/560/EC of 24 September
1998 on the development of the competitiveness of the
European audiovisual and information services industry
(3) Legislative measures need to be
enacted at Union level
by promoting national frameworks aimed at achieving a
on the protection of the physical,
mental and moral comparable and effective
level of protection of minors
development of minors in relation
to the content of all
and human dignity (4) is the first legal instrument at
audiovisual and information services
and the protection
Community level which in its recital (5) addresses issues
of minors from access to
inappropriate adult of the protection of minors and of
human dignity in
programmes or services. relation to
audiovisual and information services made
available to the public, whatever the means of convey-
(4) The constant development of new
information and
ance. Article 22 of Council Directive 89/552/EEC of
communication technologies makes it
urgent for the
3 October 1989 on the coordination of certain provi-
Community to ensure full and
adequate protection for
sions laid down by Law, Regulation or Administrative
citizens' interests in this field
on the one hand, by guar-
Action in Member States concerning the pursuit of tele-
anteeing the free delivery and free
provision of informa-
vision broadcasting activities (5) (`Television without
tion services and, on the other
hand, by ensuring that
Frontiers Directive') has already specifically addressed the
question of the protection of minors and human dignity
in television broadcasting activities.
(1) OJ
C 221, 8.9.2005, p. 87.
(2)
Opinion of the European Parliament of 7 September 2005 (OJ C
193 E, 17.8.2006, p. 217), Council
Common Position of 18 (4)
OJ L 270, 7.10.1998, p. 48.
September 2006 and Position of the
European Parliament of ... (not (5)
OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive
yet published in the Official
Journal).
97/36/EC of the European Parliament and of the Council (OJ L 202,
(3) OJ
C 364, 18.12.2000, p. 1. 30.7.1997, p.
60).
5.12.2006 EN Official Journal of the European
Union
C 295E/49
(7) It is suggested that the Council and
the Commission
authorities, industries, associations, citizens and civil
should pay special attention to the
implementation of
society.
this Recommendation when revising,
negotiating or
concluding new partnership
agreements or new coopera-
tion programmes with third
countries, bearing in mind
the global character of producers,
distributors or provi-
ders of audiovisual content and
Internet access.
(13) In the public
consultation concerning Directive
97/36/EC of the European Parliament and of the Council
of 30 June
1997 amending Council
(8) By Decision No 276/1999/EC (1), the
European Parlia-
Directive 89/552/EEC on the coordination of certain
ment and the Council adopted a
multiannual Com-
provisions laid down by law, regulation or administra-
munity Action plan on promoting
safer use of the
tive action in Member States concerning the pursuit of
Internet by combating illegal and
harmful content on
television broadcasting activities (4), it was suggested that
global networks (the `Safer
Internet Action Plan').
the need to adopt measures in relation to media literacy
be
included among the subjects covered by Recommen-
dation 98/560/EC.
(9) Decision No 1151/2003/EC of the
European Parliament
and of the Council (2) extended the
Safer Internet Action
Plan for two years and amended its
scope to include
measures to encourage exchange of
information and
coordination with the relevant
actors at national level as
(14) The Commission encourages
cooperation and the
well as special provisions for the
accession countries.
sharing of experience and best practices between existing
self-
and co-regulatory bodies, which deal with the
rating or classification of audiovisual content, regardless
of the means by which it is delivered, with a view to
(10) Directive 2000/31/EC of the European
Parliament and of
enabling all users, but especially parents, teachers and
the Council of 8 June 2000 on
certain legal aspects of
trainers, to report illegal content and assess the content
information society services, in
particular electronic of audiovisual and on-line
information services, as well
commerce, in the Internal Market
(3) clarifies some legal
as any legal content which could harm the physical,
concepts and harmonises certain aspects
in order to mental
or moral development of minors.
enable information society services
to fully benefit from
the internal market principles. A
number of the provi-
sions of Directive 2000/31/EC are
also relevant to the
protection of minors and human
dignity, in particular
Article 16(1)(e), according to
which Member States and
(15) As suggested during the
public consultation concerning
the Commission are to encourage the
drawing up of
Directive 97/36/EC, it is appropriate for the right of
codes of conduct regarding the
protection of minors and
reply or equivalent remedies to apply to on-line media,
human dignity. and to
take into account the specific features of the
medium and service concerned.
(11) The changing media landscape, resulting
from new tech-
nologies and media innovation,
makes it necessary to
teach children, and also parents,
teachers and trainers to
use audiovisual and on-line information
services effec- (16) The Council Resolution of 5 October 1995
on the
tively.
image of women and men portrayed in advertising and
the media
(5) invites the Member States and the Commis-
sion to take adequate measures to promote a diversified
(12) On the whole, self-regulation of the
audiovisual sector is and
realistic picture of the skills and potential of women
proving an effective additional
measure, but it is not
and men in society.
sufficient to protect minors from messages with harmful
content. The development of a
European audiovisual
area based on freedom of expression
and respect for citi-
zens' rights should be based on
continuous dialogue
between national and European
legislators, regulatory
(17) When tabling its proposal
for a Council Directive imple-
menting the principle of equal treatment between men
and women in the access to and supply of goods and
(1)
Decision No 276/1999/EC of the European Parliament and of the
Council of 25 January 1999 adopting a
multiannual Community
services, the Commission noted that the portrayal of the
action plan on promoting safer use of
the Internet by combating
sexes in the media and in advertising raises important
illegal and harmful content on global
networks (OJ L 33, 6.2.1999,
questions about the protection of the dignity of men and
p. 1). Decision as last amended by
Decision No 787/2004/EC (OJ L
women, but concluded that, in the light of other funda-
138, 30.4.2004, p. 12).
(2)
Decision No 1151/2003/EC of the European Parliament and of the mental rights, including
the freedom and pluralism of
Council of 16 June 2003 amending
Decision No 276/1999/EC
the media, it would not be appropriate to address these
adopting a multiannual Community action
plan on promoting safer
questions in that proposal but that it should take stock
use of the Internet by combating
illegal and harmful content on
of these questions.
global networks (OJ L 162, 1.7.2003, p.
1).
(3) OJ
L 178, 17.7.2000, p. 1.
(4) OJ
L 202, 30.7.1997, p. 60. (5) OJ C 296,
10.11.1995, p. 15.
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(18) The audiovisual and on-line information
services sion
of means of access in educational establishments
industry should be encouraged at
Member State level to
and public places,
avoid and to combat any type of
discrimination based
on sex, racial or ethnic origin,
religion or belief,
disability, age or sexual orientation
in such media and all (c)
action to inform citizens more about the possibilities
advertising, including new advertising
techniques,
offered by the Internet;
without infringing freedom of
expression or of the press.
examples of possible actions concerning media literacy
are
outlined in Annex II;
(19) This Recommendation covers new
technological devel-
opments and
complements Recommendation
98/560/EC. Its scope, on account of
technological 3. promoting a responsible attitude on
the part of profes-
advances, includes audiovisual and
on-line information
sionals, intermediaries and users of new communication
services made available to the public
via fixed or mobile media
such as the Internet by:
electronic networks.
(a) encouraging the audiovisual and on-line information
(20) Nothing in this Recommendation prevents
Member
services industry, without infringing freedom of
States from applying their
constitutional provisions and
expression or of the press, to avoid all discrimination
other legislation and legal practices
regarding freedom of
based on sex, racial or ethnic origin, religion or
expression,
belief, disability, age or sexual orientation, in all
audiovisual
and on-line information services, and to
combat such discrimination,
(b)
encouraging vigilance and the reporting of pages
considered illegal, without prejudice to
Directive 2000/31/EC,
HEREBY
RECOMMEND THAT:
(c) drawing up a code of conduct in cooperation with
professionals and regulatory authorities at national
and Community level;
I. The
Member States, in the interests of promoting the devel-
opment of the audiovisual and on-line
information services
industry, take the necessary measures to
ensure the protec- 4.
promoting measures to combat all illegal activities
tion of minors and human dignity in all
audiovisual and on-
harmful to minors on the Internet and make the Internet
line information services by:
a much more secure medium; consideration could be
given inter alia to the following measures:
1. considering the introduction of measures
into their
domestic law or practice regarding the
right of reply or (a)
adopting a quality label for service providers, so that
equivalent remedies in relation to
on-line media, with
users can easily check whether or not a given
due regard for their domestic and
constitutional legisla-
provider subscribes to a code of conduct,
tive provisions, and without prejudice
to the possibility
of adapting the manner in which it is
exercised to take
into account the particularities of
each type of medium; (b)
establishing appropriate means for the reporting of
illegal and/or suspicious activities on the Internet.
2. promoting, in order to encourage the
take-up of techno-
logical developments, in addition to
and consistently II. The
audiovisual and on-line information services industry
with existing legal and other measures
regarding broad- and other
parties concerned:
casting services, and in close
cooperation with the
parties concerned:
1. develop positive measures for the benefit of minors,
(a) action to enable minors to make
responsible use of
including initiatives to facilitate their wider access to
audiovisual and on-line information
services, notably
audiovisual and on-line information services, while
by improving the level of awareness among parents, avoiding potentially harmful
content, for instance by
teachers and trainers of the
potential of the new
means of filtering systems. Such measures could include
services and of the means whereby
they may be
harmonisation through cooperation between the regula-
made safe for minors, in particular
through media tory,
self-regulatory and co-regulatory bodies of the
literacy or media education
programmes and, for
Member States, and through the exchange of best prac-
instance, by continuous training
within school educa- tices
concerning such issues as a system of common
tion,
descriptive symbols or warning messages indicating the
age category and/or which aspects of the content have
led to a certain age recommendation, which would help
(b) action to facilitate, where
appropriate and necessary,
users to assess the content of audiovisual and on-line
the identification of, and access
to, quality content
information services. This could take place, for instance,
and services for minors, including
through the provi- through the actions outlined in Annex III;
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2. examine the possibility of creating
filters which would 3. intends to explore the possibility of
supporting the establish-
prevent information offending against
human dignity ment of a
generic second level domain name reserved for
from passing through the Internet; monitored sites committed to respecting minors
and their
3. develop measures to increase the use of
content labelling rights, such
as .KID.eu;
systems for material distributed over
the Internet; 4. continues
to maintain a constructive and ongoing dialogue
4. consider effective means of avoiding and
combating with content
providers' organisations, consumer organisa-
discrimination based on sex, racial or
ethnic origin, reli- tions and all parties concerned;
gion or belief, disability, age or
sexual orientation in
audiovisual and on-line information
services and of 5. intends
to facilitate and support the formation of networks
promoting a diversified and realistic
picture of the skills by
self-regulatory bodies and the exchanging of experience
and potential of men and women in
society. among
them, so as to assess the effectiveness of codes of
conduct
and approaches based on self-regulation in order to
TAKE
NOTE THAT THE COMMISSION: ensure the highest
possible standards of protection for
minors;
1.
Intends to promote, in connection with the 2005-2008
multiannual Community programme on
promoting safer 6.
intends to submit to the European Parliament and the
use of the Internet and new on-line
technologies, informa-
Council, on the basis of information supplied by the
tion actions aimed at citizens Europe-wide
using all commu- Member
States, a report on the implementation and effec-
nications media, to inform the public about
the benefits and tiveness of
the measures specified in this Recommendation,
possible risks of the Internet, how to use
it responsibly and and to review
this Recommendation if and when the need
safely, how to make complaints and how to
activate arises.
parental control. Specific campaigns could
be aimed at
target groups such as schools, parents'
associations and
users;
Done
at ..., on ...
2.
intends to explore the possibility of introducing a European
freephone number or of extending an
existing service to
assist Internet users by directing them to
available complaint For the European Parliament For the Council
mechanisms and information resources and
providing infor-
mation for parents about the effectiveness
of filtering soft-
The President The
President
ware;
... ...
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ANNEX I
INDICATIVE GUIDELINES FOR THE
IMPLEMENTATION, AT NATIONAL LEVEL, OF MEASURES IN
DOMESTIC LAW OR PRACTICE SO AS TO
ENSURE THE RIGHT OF REPLY OR EQUIVALENT REMEDIES
IN RELATION
TO ON-LINE MEDIA
Objective: introducing measures
in the domestic law or practice of the Member States in order to ensure the
right of
reply or equivalent remedies in
relation to on-line media, with due regard for their domestic and
constitutional provi-
sions and without prejudice to
the possibility of adjusting its exercise to the particularities of each type
of medium.
The term `medium' refers to any
means of communication for dissemination to the public of edited information
on-line
such as newspapers, periodicals,
radio, television and Internet-based news services.
Without prejudice to other provisions adopted by the Member
States under civil, administrative or criminal law, any
natural or legal person,
regardless of nationality, whose legitimate interests, in particular, but not
limited to, reputation
and good name, have been affected
by an assertion of facts in a publication or transmission should have the right
of
reply or equivalent remedies.
Member States should ensure that the actual exercise of the right of reply or equivalent
remedies is not hindered by the
imposition of unreasonable terms or conditions.
The right of reply or equivalent
remedies should exist in relation to on-line media under the jurisdiction of a
Member State.
Member States should adopt the
measures needed to establish the right of reply or equivalent remedies and
should deter-
mine the procedure to be followed
for the exercise thereof. In particular, they should ensure that a sufficient
time span
is allowed and that the
procedures are such that the right of reply or equivalent remedies can be
exercised appropriately
by natural or legal persons
resident or established in other Member States.
The right of reply can be ensured not only through legislation,
but also through co-regulatory or self-regulatory
measures.
The right of reply is a
particularly appropriate remedy in the on-line environment because it allows for
an instant
response to contested information
and it is technically easy to attach the replies from the persons affected.
However, the
reply should be within a
reasonable time after the request has been substantiated and at a time and in a
manner appro-
priate to the publication or
transmission to which the request refers.
Provision should be made for
procedures whereby disputes as to the exercise of the right of reply or the
equivalent
remedies could be subject to
review by the courts or similar independent bodies.
An application for exercise of
right of reply or the equivalent remedies may be rejected if the claimant does
not have a
legitimate interest in the
publication of such a reply, or if the reply would involve a punishable act,
would render the
content provider liable to civil
law proceedings or would transgress standards of public decency.
The right of reply is without
prejudice to other remedies available to persons whose right to dignity,
honour, reputation
or privacy have been breached by
the media.
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ANNEX II
Examples of possible actions
concerning media literacy:
(a) continuing education of
teachers and trainers, in liaison with child protection associations, on using
the Internet in
the context of school
education so as to maintain awareness of the possible risks of the Internet
with particular
regard to chatrooms and fora;
(b) introduction of specific
Internet training aimed at children from a very early age, including sessions
open to parents;
(c) an integrated educational
approach forming part of school curricula and media literacy programmes, so as
to
provide information on using
the Internet responsibly;
(d) organisation of national
campaigns aimed at citizens, involving all communications media, to provide
information
on using the Internet responsibly;
(e) distribution of information
packs on possible risks of the Internet (`how to surf the Internet safely',
`how to filter
unwanted messages') and the
setting up of hotlines to which reports or complaints concerning harmful or
illegal
content could be addressed;
(f) adequate measures to
establish or improve the performance of telephone hotlines, so as to make it
easier to lodge
complaints and to make it
possible to report harmful or illegal content.
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ANNEX III
Examples of possible actions by
the industries and the parties concerned for the benefit of minors:
(a) systematically providing
users with an effective, updatable and easy-to-use filtering system when they
subscribe to an
access provider;
(b) offering access to services
specifically intended for children which are equipped with automatic filtering
systems
operated by access providers
and mobile telephone operators;
(c) introducing incentives to
provide a regularly updated description of the sites available, making it
easier to classify
sites and assess their
content;
(d) posting banners on search
engines drawing attention to the availability both of information about
responsible use of
the Internet and of telephone
hotlines.
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STATEMENT OF THE COUNCIL'S REASONS
I. INTRODUCTION
1. On 30 April 2004 the
Commission submitted to the European Parliament and to the Council a
proposal for a recommendation, based on Article 157 of
the EC Treaty, on the protection of
minors and the right of
reply in relation to the competitiveness of the audiovisual and information
services industry.
2. The European Economic and
Social Committee delivered its opinion on 9 February 2005.
3. The European Parliament
delivered its opinion at first reading on 7 September 2005.
4. The Commission submitted
an amended proposal on 20 January 2006.
5. On 18 September 2006, the
Council adopted its common position in accordance with
Article 251 (2) of the EC
Treaty.
II. OBJECTIVE
The proposal follows up on Council Recommendation
98/560/EC of 24 September1998 (1), the first
legal instrument at EU level
which addresses issues of protection of minors and human dignity in rela-
tion to audiovisual and
information services.
The proposed Recommendation
calls on the Member States, industry and interested parties and the
Commission to enhance the
protection of minors and to respect human dignity in both the broad-
casting sector and on the
internet. It proposes that Member States consider the introduction of
measures concerning the right
of reply in relation to on-line media. The following issues are addressed
by the draft Recommendation:
- media literacy;
- rating or classification of
audiovisual content;
- portrayal of the sexes in
media and advertising;
- right of reply.
III. ANALYSIS OF THE COMMON
POSITION
1. General comments
The Council's common
position retains the main elements of the Commission's original proposal.
The main changes introduced
by the Council aim to further refine the scope of the Recommenda-
tion. The Council has
thus specified that the Recommendation covers `audiovisual and online infor-
mation services' rather
than `audiovisual and information services', and has differentiated the scope
of the right of reply,
which applies to online media, from the wider scope of the part of the Recom-
mendation dealing with
the protection of minors.
2. European Parliament
amendments
The Council has sought in
its common position to take account of the European Parliament's
concerns and priorities
and was able to accept most of Parliament's amendments.
The Council accepted in
full, in part or in principle, as did the Commission in its amended
proposal, amendments 1,
2, 4, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25,
26, 28, 29, 30, 31, 33,
35, 36, 37 and 38.
The Council wishes to
make the following comments on those amendments where its position
slightly diverges from
the Commission's modified proposal.
(1) OJ L 270, 7.10.1998, p. 48.
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Regarding amendments 23 and
29, the Council has followed the approach taken by the Commis-
sion, i.e. some parts of the
respective amendments were transferred - in the form of examples of
possible actions to be taken
in order to achieve the stated aims of the Recommendation - to
annexes. It has, however,
reinserted some elements considered important by the European Parlia-
ment in the body of the
Recommendation, in order to further approximate positions with Parlia-
ment.
Likewise, whilst trying to
avoid the introduction of a burdensome reporting obligation, the Council
was able to accept the
spirit of amendments 35 and 36, to meet Parliament's concerns that follow-
up be ensured.
The Council was unable to
accept the part of amendment 37 replacing the term `indicative guide-
lines' by `minimum
principles' in the section relating to the right of reply, as this term was
consid-
ered excessive in the
context of a recommendation.
Regarding amendment 26, last
indent, the Council took the view that it was preferable not to focus
exclusively on the
establishment of a single telephone hotline when envisaging the possible means
of reporting illegal or
suspicious activities on the Internet, and has retained a more open-ended
wording.
The Council has followed the
line taken by the Commission in its amended proposal and did not
include amendments 3, 5, 13,
27, 32 and 34 in its common position.
IV. CONCLUSION
The Council considers that, as
a whole, its common position is fully in line with the objectives of the
Commission's amended proposal.
The Council also considers that it has taken due account of the
objectives pursued by the
European Parliament in its amendments to the Commission's proposal and
looks forward to an agreement
with the Parliament in the near future with a view to the early adoption
of the Recommendation.