By Gerry Oberst

Toward the end of this month, the European Commission, together with the U.K. government, will sponsor a major event in Liverpool, England, on revising the Television Without Frontiers (TWF) Directive. The conference will bring together policy experts, broadcasters and national regulators to develop proposals for a revision of the basic European Union (EU) media law, which has been in place since 1989.

The TWF Directive affects the interests of satellite broadcasters, uplinkers and other service providers involved with European broadcasting. As with any broadcasting laws, any proposed amendments from the conference are sure to be controversial.

In July, the Commission released five issues papers on the future legislative framework, plus a paper on media pluralism, in preparation for the Liverpool conference.

The first paper on general rules for audiovisual content services covers whether and how to apply a broad array of broadcasting rules to new non-linear, or Internet-delivered services. It also covers in passing whether to extend EU-wide rules to radio. The Commission says that satellite operators favor the transnational approach, but radio stations are against EU-level regulation, preferring national regulation instead.

This paper also concerns how to determine which country regulates broadcasts from outside its borders. This issue directly affects satellite platforms, which usually are the delivery means of these signals.

The core of the TWF Directive, as the Commission acknowledges, is that broadcasting is regulated by the country where it originates. Nevertheless, some member states complain they cannot regulate programming being broadcast into their countries, which was the basic aim of the directive in the first place. Any changes that upset the "country of origin" principle could greatly roil the market for satellite transmissions.

To deal with programming from outside Europe, the Commission suggests only changing the order of the existing rules in the TWF Directive, so that where the programming is uplinked –if in Europe– is more important than which European satellite is used. It mentions a new criterion of where the programming is multiplexed, but suggests that this concept is too vague to be useful.

The second issues paper deals with the right to information and short reporting extracts, which are broadcasting issues that, at least on face value, do not affect satellite interests.

The third paper on cultural diversity and the promotion of European and independent production expresses concerns from some broadcasters and producers about inadequate enforcement of the existing quota rules for European programming. The Commission looks at whether stricter auditing and monitoring rules, or just spot checks, should be applied. This item could affect satellite broadcasting channels but not the operators themselves.

The fourth issues paper deals with regulation of advertising. This also could affect some satellite broadcasting channels, but the main impact is to figure out how to apply the rules to Internet-based services.

The TWF Directive bans broadcast advertising for tobacco, alcohol and prescription medicines on grounds of public health. The Commission says there is consensus on extending the same rules on tobacco and alcohol to non-linear services, and that only "objective information" should be permitted on pharmaceutical products.

The fifth issues paper covers protection of minors (i.e., anti-pornography regulations) and human rights, plus the right of reply. Fundamental principles on protecting minors apply to delivery of all audiovisual services, but up to now, besides general criminal laws, only non-binding recommendations have extended these principles to the Internet. The Commission is exploring methods to make current recommendations binding through amendment of the TWF Directive, which greatly raises the stakes.

The TWF Directive bans broadcasts that incite hatred on grounds of race, sex, religion or nationality, wording that the Commission says is sufficient for linear programming. But the fifth paper sets out language that could expand the ban for Internet-based services to include incitement to hatred based on additional factors such as "ethnic origin, belief, disability, age or sexual orientation," while deleting nationality. This proposal could cause controversy, especially as European member states and courts seek to extend jurisdiction over Internet content from other countries.

The final paper in the series concerns media pluralism. It discusses the role of the EU, as opposed to the European national level, where most rules in this area have rested. The Commission consistently has foresworn any role in this matter, saying the member states have not given the Commission such authority. The issues paper gives an overview of all the measures the Commission takes to encourage media pluralism and acknowledges that competition rules are not sufficient, but also clearly contains the bottom line that harmonization in this area is not possible–leaving ultimate regulation to the member states.

These proposed changes to broadcasting and non-linear services would affect satellite interests large and small in Europe. We can expect some lengthy debate and maybe heated controversy on these proposals. The papers can be accessed at http://europa.eu.int/comm/avpolicy/revision-tvwf2005/consult_en.htm

Gerry Oberst is a lawyer in the Brussels office of the Hogan & Hartson law firm.