Television Advertising and the Protection of Children in the European Union - The Television Without Frontier Directive
Amandine GARDE*
The Television Without Frontiers Directive illustrates the conflict between the need to ensure the free movement of broadcasting services
across the European Union and the need to protect children from potentially harmful broadcast material.
It is worth stating from the outset that the debate has exclusively focused so far on television advertising; other forms of advertising have
not been dealt with at European level at all, despite the damaging effects they can have on children (in-school marketing, for instance), a regrettable oversight.
The Scheme established by the Directive
Directive 89/552 was adopted by the Council in 1989 and amended by Directive 97/36 in 1997.1 The main purpose of the Directive is to ensure the free movement of broadcasting services across the European Union. However, the Council has acknowledged that other considerations had to be taken into account.
Article 2(2) of the Directives establishes the transmitting State principle: provided that the transmitting Member State complies with
the rules set out in the Directive, it is responsible for regulating advertising, wherever broadcast in the Union. The control is effected at source. The general rule is therefore that the receiving
Member State cannot restrict the reception of advertising services on its territory.
This was confirmed by the European Court of Justice in the case of De Agostini.2 De Agostini is the Swedish subsidiary of an Italian company. It advertised by satellite from the United Kingdom on Swedish television channels the children’s magazine “Everything about Dinosaurs!”. This magazine series contains information about dinosaurs, as well as a related model dinosaur.
The Consumer Ombudsman applied to the Market Court for an order prohibiting De Agostini from marketing the magazine, in particular on the
ground that the advertising in question was designed to attract the attention of children of less than twelve years of age and therefore contrary to Article 11 of the Swedish Broadcasting Act. By
contrast, De Agostini claimed that Swedish legislation was contrary to the Directive. The Market Court referred a question to the European Court of Justice as to whether Directive 89/552 is to be
interpreted as “precluding the application of Article 11 of the Broadcasting Act prohibiting advertisements directed at children”. The Court held that Sweden could not prevent the
broadcast from the United Kingdom of the advertising of the children magazine on its territory. Indeed, as the United Kingdom was the transmitting State and in so far as it had properly implemented
the Directive, Sweden could not establish a dual control of the advertising it received therefrom.
However, the Directive also lays down minimum standards concerning advertising, some of which deal with the protection of children.
Article 22 states that Member States are obliged to take appropriate measures to ensure that television broadcasts by broadcasters under their jurisdiction do not include programmes which might
seriously impair the physical, mental or moral development of minors. More specifically, Article 16 provides that television advertising must not cause moral or physical detriment to minors and
therefore must comply with the following criteria for their protection:
“(a) it shall not directly exhort minors to buy a product or a service by exploiting their inexperience or credulity;
(b) it shall not directly encourage minors to persuade their parents or others to purchase the goods or services being advertised;
(c) it shall not exploit the special trust minors place in parents, teachers or others to purchase the goods or services being advertised;
(d) it shall not unreasonably show minors in dangerous situations”.
Member States have a duty to implement these minimum standards. They can also lay down stricter rules for broadcasters under their
jurisdiction.
Comments
The scheme established by the Directive as interpreted by the European Court of Justice has sometimes been misunderstood. Some tend to believe
that European institutions deliberately ignore the needs of children in the name of market integration. It is not necessarily true.
As stated above, the Directive provides for minimum standards which Member States are under a duty to implement. It is worth noting that
Articles 16 and 22 have been, in fact, directly responsible for the raising of standards of child protection in advertising in several Member States, not least in France and the UK. Secondly, the
Directive does not prevent Member States from imposing stricter standards for broadcasters under their jurisdiction. Indeed, the Directive lays down minimum standards only and expressly states so in
Article 3(1).These minimum standards helps to make the transmitting State principle acceptable.
Moreover, the transmitting State principle is not necessarily such a bad mechanism when it is necessary to strike a balance between competing
needs. The underlying idea is mutual confidence, which rests on the assumption that Member States have similar aims and that they should consequently accept that the laws of other Member States can
protect inter alia the interests of children, even if they do so in a different way. The advantage of this principle is to avoid duplication of control, which would undermine the principle of free movement at the heart of the Community legal order.
Finally, in case the transmitting Member State would not have properly implemented the Directive, the receiving State disposes of an emergency
remedy. Article 2a(2) states that a Member State may, provisionally, derogate from the transmitting State principle if a television broadcast coming from another Member State manifestly, seriously
and gravely infringes Article 22. This is a valuable safeguard mechanism. It is conceded, however, that this Article is not satisfactory. Firstly, it requires that Article 22 should be
“manifestly, seriously and gravely” violated; less serious violations would therefore not be caught. Secondly, it also lays down many requirements of a procedural nature, thus putting too
heavy a burden on the receiving Member State.
What’s Next on the Agenda
The aim of this short article is not to prove that the Directive is the best possible piece of legislation for the protection of children.
Rather, the intention is to show that interests of children are not systematically ignored in the name of market integration, and that oversimplification should be avoided when assessing the impact
of the Directive.
Developments are soon to be expected in this area of Community law. Firstly, there is a case pending in which the European Court of Justice
will have to decide whether the Greek legislation imposing a ban on toy advertising on television between 7am and 10pm is contrary to Community law, as the Commission submits, or whether such
restriction is justified so as to protect children.
Moreover, following the ruling in De Agostini, Sweden declared that it intended to have the Television Without Frontiers Directive
amended during its presidency of the Union (January to June 2001). Sweden would like television advertising directed at children to be totally prohibited.
At the moment, the debate is raging. On the one hand, there are those who believe that television advertising is harmful to children as it
exploits their credulity; their arguments are that before the age of 12, some children cannot distinguish between fiction and reality. That should justify the ban of advertising directed at children.
On the other hand, there are those who think that the proceeds of television advertising directed at children enable the production of decent children programmes, and that children ultimately benefit
from such advertising; that television advertising is also a form of expression and that, as such it increases the awareness and the freedom of choice of children; and lastly, that the dangers of
television advertising on children have not been conclusively established. Advertising directed at children should not therefore be banned altogether. The debate should be as wide and open as
possible. In particular, there is a need for research on the impact of advertising on children. It is imperative that this research should expand to all forms of advertising and be independent
from commercial interests.
At this stage, it is worth remembering that “in all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration”.3 If it is true that the Internal
Market can be in the best interest of the child, it is not necessarily always so.
Footnotes
* Visiting Lecturer, Centre of European Law, King’s College London.
1. Directive 89/552/EEC, OJ 1989 L 298/23 ; Directive 97/36/EC, OJ 1997 L 202/60.
2. C-34/95 De Agostini v Konsumentombudsmannen [1997] ECR I-3843. See also
the decision by the EFTA Court in joined cases E-8/94 and E-9/94, 16 June 1995, available from: http://www.efta.int/docs/Court/Publications/Decision/1995/E-8-9-94.htm
3. Article 3 of the 1989 UN Convention on the Rights of the Child.
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