Opinion on the draft decree on the advertising and sponsorship regime

French Superior Audiovisual Council opinion of October 23, 2001 on the draft decree amending decree no. 92-280 of March 27, 1992 laying down the general principles governing the rules applicable to advertising and sponsorship.

The French Superior Audiovisual Council (Conseil supérieur de l'audiovisuel) has been asked to give its opinion, pursuant to article 27 of the amended law no. 86-1067 of September 30, 1986 on freedom of communication, on a draft decree amending decree no. 92-280 of March 27, 1992 laying down the general principles governing the rules applicable to advertising and sponsorship, after due deliberation, makes the following observations, which are to be supplemented by the main observations set out in its opinion of October 2, 2001 on the draft decree laying down general principles concerning the diffusion of services other than radio broadcast by terrestrial hertzian means in digital mode.
The Council approves the changes proposed by the government to the decree of March 27, 1992. However, it has a number of observations to make, in particular on points that should have been addressed but are not included in the draft.

1. Prohibited sectors

The draft decree does not modify article 8 of the decree of March 27, 1992, which prohibits television advertising for literary publishing, cinema, the press and, in mainland France, distribution.
The question of opening up television advertising to these sectors has been raised for several years. The rollout of digital terrestrial television, which will increase the supply of television advertising space and boost advertising revenue requirements, certainly summons a relaxation of these prohibitions.
For its part, as it has already indicated on several occasions, the French Superior Audiovisual Council is in favor of a gradual, concerted opening-up of prohibited sectors. It suggests :
- on the one hand, that all services, with the exception of national analog terrestrial services, be able to show advertising messages in favor of the press, literary publishing and cinema sectors;
- secondly, that local terrestrial channels and local cable channels should also be able to show advertising messages in favor of the distribution sector, a major condition for their development and, in some cases, their existence, as is currently the case for radio services, with which a balance will have to be found.
Furthermore, the Conseil considers it essential that channels falling within the competence of France but intended exclusively for diffusion outside France escape the prohibitions laid down in article 8 of the decree of March 27, 1992, which should not be applied to them and may hinder their development.

2. Maximum time devoted to the diffusion of advertising messages

The decree of March 27, 1992 makes no provision for the maximum time allowed for the diffusion of advertising messages.
For public channels, since the law of August 1, 2000, this maximum duration has been set by article 53 of the law of September 30, 1986. For free-to-air private channels, it is set by agreement, in compliance with the limits set by the Television without Frontiers Directive.
Thus, while the directive makes provision for a maximum of 9 minutes per hour on average per day, and 12 minutes in any given hour, TF1 and M6's agreements make provision for a maximum of 6 minutes per hour on average per day, and 12 minutes in any given hour.
Article 5 of the draft decree amending the decree of March 27, 1992 introduces a provision concerning the diffusion time of advertising messages. For national free-to-air television services, whether analog or digital, it retains the maxima laid down in the TF1 and M6 agreements, which precludes any further relaxation by agreement.
The Council accepts that it is legitimate for the decree to include provisions on this issue, in order to ensure transposition of the directive. On the other hand, it regrets that the government has set time limits that are lower than those set out in the directive, whereas it could have chosen to set a range and leave it to the French Superior Audiovisual Council to determine the time limit applicable to each service, by means of an agreement.

3. Virtual advertising

Virtual advertising is now prohibited on principle. Indeed :
- on the one hand, article 9 of the decree of March 27, 1992 prohibits surreptitious advertising;
- on the other hand, article 14 of the same decree of March 27 1992 makes provision for advertising messages to be inserted in specific screens.
These provisions prevent the insertion of advertising images in programs other than advertising screens.
However, the insertion of such images appears to be of interest in a very specific case, that of the retransmission of sporting events taking place in stadiums featuring billboards advertising alcoholic beverages or cigarette brands. Allowing broadcasters to substitute these billboards with virtual advertisements would enable the Loi Evin to be strictly enforced with complete legal certainty.

4. Advertising on certain television services

The Conseil considers that the rules on advertising and sponsorship should be adapted for services which, technically, must be qualified as TV services but which, in terms of programming, are very similar to non-TV services; this is the case for certain program guides or interactive channels. In the Council's view, these additional resources may determine the viability of such services.
The way these services operate is closer to browsing, as on websites, than to diffusion. Advertising regulations appear to be ill-suited to this mode of operation, and in particular article 14 of the decree of March 27, 1992, which makes provision for the insertion of advertising messages in "screens recognizable by their optical and acoustic characteristics".
It would therefore seem necessary to adapt these specific services, as is made provision for in the draft decree on digital terrestrial services for non-television services. In particular, this adaptation should make it possible to show advertising messages on banners.

5. Interactive advertising

Interactive advertising, linked to digital technology, is already present on satellite platforms. It enables viewers to intervene, via their remote control, during the diffusion of a commercial message, to obtain additional information or even to order the product.
It would therefore be useful to make provision for an appropriate regime for the diffusion of interactive advertising by television services (duration of messages, ability to place orders, etc.).

6. Limiting isolated screens
Article 10 of the Television without Frontiers Directive defines the rules applicable to advertising messages. Most of these rules have been transposed in the decree of March 27, 1992.
The Council notes, however, that it has not transposed the scheme stipulating that isolated advertising must be exceptional.