(c) Photo courtesy Catalan CAC
Nine years after its 13th meeting in Barcelona, the European Platform of Regulatory Authorities (EPRA) was back in the capital of the Autonomous Community of Catalonia to hold its 31st meeting on 12-14 May at the invitation of the Catalan Audiovisual Council (CAC). This provided the opportunity to celebrate the 15th anniversary of the EPRA and the 10th anniversary of the Catalan Audiovisual Council.
Around 140 delegates from 43 countries attended the meeting where 50 regulatory authorities were represented. They were joined by the permanent observers from the Council of Europe, the European Audiovisual Observatory and the European Commission.
The implementation of the Audiovisual Media Services Directive was one of the focal points on the agenda, with a plenary session and a working group addressing the first experiences with regulating product placement and practical issues relating to the protection of minors in on-demand services.
The issue of product placement triggered an extremely lively debate. After an introductory presentation by Dirk Peereman from the Flemish Regulator for the Media identifying the main issues at stake and presenting the first decisions of the VRM on recent cases, a panel composed of representatives of regulatory authorities having issued - or about to issue - guidance on the regulation of product placement reported on national approaches. The panelists were Marc Janssen, CSA (BE); Michael OKeeffe, BAI (IE); Wolfgang Thaenert, DLM (DE); Chris Banatvala, Ofcom (UK).
The issues pertaining to the identification of product placement; the distinction between product placement and sponsorship and between product placement and surreptitious advertising; the definition of significant value and thematic placement were identified by all contributors alike as crucial.
However, as is often the case, there was no single answer to the common challenges. While the Belgian CSA bypassed the concept of significant value by systematically treating prop and prize placement as product placement, the Irish BAI opted for an absolute monetary value (5,000 EUR), the UK Ofcom favoured the concept of residual value and the German DLM went for a system combining a minimum monetary value with a percentage of production costs (1,000 EUR and 1%).
The requirements concerning the identification of product placement provided much food for discussion. They ranged from the role played by self-regulation in the creation of a common identification logo, how to ensure a level playing field between the interests of broadcasters and the viewers, measures taken to inform viewers about the new identification devices, the ultimate aim of the identification requirement generally perceived as identifying programmes containing product placement rather than specific products placed in the programme, to potential cases of misuse of identification systems to actually promote goods and services.
The issue of the relationship between product placement and sponsorship was also a hotly debated issue. While many agreed that the liberalisation of product placement would impact the sponsorship industry and ultimately question the appropriateness of some current sponsorship rules at the national level, RAs have taken different positions as to whether it will be possible to combine sponsoring and product placement for the same brand or product in the same programme.
The thin line between some new programme formats which may be classified as light entertainment or as documentaries was considered likely to raise problems in the future.
The second plenary session addressed a topic of relevance for all regulators, namely the issue of complaints and sanctions. Through the impetus given by session content producer Maida Culahovic, CRA (BA), a panel of regulators composed of Emir Povlavic, CRA (BA), Tanja Kerevan Smokvina, APEK (SI), José Alberto de Azeredo Lopes, ERC (PT) and Chris Banatvala, Ofcom (UK) reported on their respective experience in dealing with complaints and their practice with regard to the procedure of sanctions. It turns out that most complaints deal with the protection of minors and advertising.
The workload of cases handled by regulatory authorities varies greatly and indicates substantial differences in complaints culture across EPRA members. While some regulators receive many complaints, such as the Ofcom (22,000 complaints a year in 2009 not including advertising matters) or the Portuguese ERC, many regulators mostly rely on a monitoring-led approach (Slovenia, Netherlands). In countries with a high complaints culture, the development of new communication means (email, facebook, twitter, etc.) has revolutionised the way on which people can complain. In these countries, the introduction of more stringent procedural filters (Portugal) and encouraging the involvement of broadcasters in the complaints procedure (UK) have been considered. While addressing the broadcaster as a first instance before filing a complaint to the regulator is a mandatory requirement in a couple of jurisdictions (as in Malta), it is only informally promoted by regulators in most countries - often with a limited success as an effective means to reduce the number of complaints. The importance of having a full range of sanctions at the disposal of the regulator was highlighted. The Slovenian APEK is likely to be granted the power to impose financial penalties soon, a development which would allow them to better reflect the seriousness of the offence. The need to have a detailed procedure for handling cases as well as a schedule of infractions and penalties was emphasised by the CRA from Bosnia and Herzegovina.
The issue of how to deal with complaints when the licensee is outside the regulators jurisdiction was also raised. Several regulators reported that they had experienced a few cases and that the usual procedure was to forward the complaint, anonymised under certain circumstances, to the competent authority. The Ofcom also mentioned their recently published procedural guidelines on cooperation with regulatory authorities from other EU Member States in relation to UK licensed channels.
Three working groups convened simultaneously to reflect the wide variety of topics of concern for regulators.
The round-table working group on community radio regulation included representatives of countries with no community radio as well as those with a well-developed sector. The main enablers for community radio include a separate (from commercial radio) legislative framework, appropriate funding, enough spectrum and public support. Distinctiveness is important, along with community access and community ownership. A common problem experienced is the lack of lobbying force, unlike other broadcast sectors. Recognition by other broadcasters and interaction with the regulator help build contact within the sector. The regulator should encourage a network of support amongst stations, as this helps to nurture new entrants and reinforce community radio ideals across the sector. Stations fare better if they are in an area with good community structures already in place. As CR has fundamentally different characteristics to public service and commercial radio, the way it is assessed needs to reflect this, by measuring access in ownership, in running the station, in the generation of content and influence from the community. By contrast, audience research is a measure for commercial radio, and is not transferable to CR. While commercial radio stations may have some basic level of participation from the community, community involvement should drive the content agenda for community radio.
The second workshop focused on the changing nature of advertising and its impact on regulation, from an industry perspective. Guest speaker Zoltan Vardy (TV2 Hungary and CEE TV) provided his perspective of the current TV advertising market, and engaged in a dialogue with EPRA members on the role that regulators could play to assist the industry. He noted the changing requirements facing the broadcasting industry, mainly the development of digital media, which has modified consumer behaviour and created a range of platforms for consumers to access information and entertainment. This combined with the current economic crisis has reduced revenues. The fragmentation of entertainment, which offers more choice for the viewers, spreads the possible revenues more thinly. He considered that the solution was to create more revenue streams. At present, spot ads are still the main part of the revenue, even though split screens and other non-advertising revenues are being explored. Other methods such as internet, ancillary products (CDs/DVDs) formed only a small part at the moment. While product placement is still not permitted in Hungary, he did consider that this would be a good revenue source for local production. In his view, regulatory authorities can assist the industry by allowing an easy and swift implementation of the AVMS Directive at national level without additional local restrictions. Regulators should also support investment in local programming. They should encourage innovation in advertising (e.g. split screen, product placement) and when in doubt, liberalise.
The third working group focused on protection of minors in the context of on-demand services. Following a keynote presentation by Anissa Zeghlache on the draft délibération of the French CSA on the protection of minors and ethics, the discussion revealed that there are different approaches to what the phrase "seriously impair on on-demand AVMS" means in different countries, and that there is also very little research done in this area. However, whilst harm is hard to prove, so is the lack of harm and there is a presumption in most countries that justifies intervention. The French CSA has favoured a consistency between their current rules for linear TV which consist in five categories, with category V covering porn and hardcore violence only allowed after 12am with access restrictions, and have prohibited content that can seriously impair on VOD, which they define as child pornography and content violating human dignity. They will allow category V content on VOD subject to access restrictions such as pin and parental control, and introduce dedicated zones.
Other regulators, as in Denmark or the Netherlands, already allow pornographic or sexually explicit content on TV without protection (beyond the watershed) and they expect to allow content that "might seriously impair" on VOD with some protection - in line with the minimum standards set out in the AVMS Directive. However, they still need to define it, as it has proven difficult to come up with a category above what they currently allow but below what they currently consider as illegal content.
The next meeting of the EPRA is scheduled for 6-8 October 2010 in Belgrade at the invitation of the Republic Broadcasting Agency of the Republic of Serbia.