Opinion of September 4, 2008 on the draft decree on advertising
Avis n° 2008-5 du 4 septembre 2008 relatif au projet de décret modifiant, d'une part, le décret n° 92-280 du 27 mars 1992 fixant les principes généraux définissant les obligations des éditeurs de services en matière de publicité, de parrainage et de télé-achat et, d'autre part, le décret n° 2001-1333 du 28 décembre 2001 fixant les principes généraux concernant la diffusion des services autres que radiophoniques par voie hertzienne terrestre en mode numérique
Seized, pursuant to articles 27 and 33 of law no. 86-1067 of September 30, 1986 on freedom of communication, of a draft decree amending decree no. 92-280 of March 27, 1992 laying down the general principles defining the obligations of service editors with regard to advertising, sponsorship and teleshopping, on the one hand, and Decree no. 2001-1333 of December 28, 2001 laying down the general principles governing the diffusion of services other than radio by terrestrial broadcasting in digital mode, on the other, the French Superior Audiovisual Council, after deliberation, makes the following observations:
1. Schemes relating to isolated advertising
The Council notes with interest that the draft decree takes up the derogation set out in Directive 2007/65/EC on audiovisual media services, by allowing the diffusion of advertising screens with a single message during broadcasts of sporting events. This will allow more flexible scheduling of advertising insertions in this type of broadcast, particularly in events with relatively short, successive phases of play.
2. Schemes relating to the duration of advertising messages
2.1 Introduction of clock-hour accounting for private channels
The Conseil is in favor of introducing the clock-hour method for assessing the duration of commercials shown, as it will enable us to achieve a common system with other European countries that have adopted this method.
However, the Council draws the Government's attention to the practical difficulties involved in calculating the clock hour and, in the interests of legal certainty, considers it essential that the calculation methods be clarified. Indeed, according to the natural clock time mechanism, the reference hours constitute successive 60-minute periods starting at minute 0 and ending at minute 59, whereas, according to the shifted clock time mechanism, the hours start at a time other than minute 0. The Council strongly hopes that the clock time calculation method chosen will be that of "natural" clock time, as this rule makes for greater readability and offers the advantage of being common to all publishers and stable over time.
2.2. Increase in the average daily broadcast time per hour from six to nine minutes for national analog and digital services.
The Council hopes that the extension of the maximum daily average airtime per hour from six to nine minutes for national analog and digital television services will provide the audiovisual creation and production sector with additional resources.
2.3. Greater flexibility for broadcasters not using frequencies summonsed by the Council, and for local terrestrial broadcasters using digital broadcasting methods.
The Conseil considers that a relaxation of the regime applicable to cable and satellite services, by eliminating the limit of nine minutes per hour on average per day devoted to the diffusion of advertising messages, offsets that envisaged for national terrestrial channels.
This measure maintains the derogation granted to cable and satellite channels, and to local digital terrestrial services, in order to compensate for their low advertising revenues at a time of falling revenues from distributors.
2.4. Greater flexibility for services shown in digital terrestrial mode
The Board welcomes the relaxation of the derogation regime for digital terrestrial TV channels, which will enable us to maintain our support for their launch.
The Board notes with interest the removal of the limit of nine minutes per hour on average per day, and notes that the only rule that remains is that, during the ramp-up period, the maximum time devoted to the diffusion of advertising messages is twelve minutes per clock hour.
However, the Council regrets that the channels which benefit from the ramp-up of their obligations are also those which enjoy an advantage in terms of maximum advertising time.
3. Schemes relating to drug sponsorship
The Conseil recalls that the sponsorship of television programs promoting medicines not subject to medical prescription remains incompatible with article L. 5122-6 of the French Public Health Code, which imposes mandatory health information, even though article 18, III of the decree of March 27, 1992 sets out a restrictive list of means by which the sponsor may be identified.
4. Schemes relating to teleshopping
4.1. Removal of the ban on mentioning the brand and name of the manufacturer, distributor or service provider
The Council approved the deletion of article 24 of the decree of March 27, 1992, which makes provision for a ban on mentioning the brand name and the name of the manufacturer, distributor or service provider in teleshopping programs, for reasons relating to consumer information: knowing the brand name and the name of the manufacturer or distributor enables viewers to obtain more precise information on the product, to guide their choice with a view to a possible purchase, and to obtain information without having to resort to an additional telephone service.
4.2. Removal of time constraints on the diffusion of home-shopping programs
The Board notes that the proposed new wording relaxes the conditions governing the diffusion of home-shopping programs on terrestrial services, which can now be programmed every day between midnight and 11am and between 2pm and 4pm.
However, the Council regrets the removal of the ban on programming on Wednesday and Saturday afternoons, as well as on Sundays, which was intended to prevent children and teenagers from being exposed to this category of program. Lifting this ban would mean abandoning this objective.
Paris, September 4, 2008.
For the French Superior Audiovisual Council :
Le président,
M. Boyon