Zakon o ratifikaciji Evropske konvencije o čezmejni televiziji in Protokola, ki spreminja Evropsko konvencijo o čezmejni televiziji (MEKCT)

Preamble

The member States of the Council of Europe and the other States party to the European Cultural Convention, signatory hereto,
    Considering that the aim of the Council of Europe is to achieve a greater unity between its members, for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
    Considering that the dignity and equal worth of every human being constitute fundamental elements of those principles;
    Considering that the freedom of expression and information, as embodied in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, constitutes one of the essential principles of a democratic society and one of the basic conditions for its progress and for the development of every human being;
    Reaffirming their commitment to the principles of the free flow of information and ideas and the independence of broadcasters, which constitute an indispensable basis for their broadcasting policy;
    Affirming the importance of broadcasting for the development of culture and the free formation of opinions in conditions safeguarding pluralism and equality of opportunity among all democratic groups and political parties;
    Convinced that the continued development of information and communication technology should serve to further the right, regardless of frontiers, to express, to seek, to receive and to impart information and ideas whatever their source;
    Being desirous to present an increasing range of choice of programme services for the public, thereby enhancing Europe’s heritage and developing its audiovisual creation, and being determined to achieve this cultural objective through efforts to increase the production and circulation of high-quality programmes, thereby responding to the public’s expectations in the political, educational and cultural fields;
    Recognising the need to consolidate the common broad framework of regulation;
    Bearing in mind Resolution No. 2 and the Declaration of the First European Ministerial Conference on Mass Media Policy;
    Being desirous to develop the principles embodied in the existing Council of Europe recommendations on principles on television advertising, on equality between women and men in the media, on the use of satellite capacity for television and sound radio, and on the promotion of audiovisual production in Europe,
    Have agreed as follows:

Chapter I

General provisions

Article 1

Object and purpose

This Convention is concerned with programme services embodied in transmissions. The purpose is to facilitate, among the Parties, the transfrontier transmission and the retransmission of television programme services

Article 2

Terms employed

For the purposes of this Convention:
    a “Transmission“ means the initial emission by terrestrial transmitter, by cable, or by satellite of whatever nature, in encoded or unencoded form, of television programme services for reception by the general public. It does not include communication services operating on individual demand;
    b “Retransmission“ signifies the fact of receiving and simultaneously transmitting, irrespective of the technical means employed, complete and unchanged television programme services, or important parts of such services, transmitted by broadcasters for reception by the general public;
    c “Broadcaster“ means the natural or legal person who composes television programme services for reception by the general public and transmits them or has them transmitted, complete and unchanged, by a third party;
    d “Programme service“ means all the items within a single service provided by a given broadcaster within the meaning of the preceding paragraph;
    e “European audiovisual works“ means creative works, the production or co-production of which is controlled by European natural or legal persons;
    f “Advertisement“ means any public announcement intended to promote the sale, purchase or rental of a product or service, to advance a cause or idea or to bring about some other effect desired by the advertiser, for which transmission time has been given to the advertiser for remuneration or similar consideration;
    g “Sponsorship“ means the participation of a natural or legal person, who is not engaged in broadcasting activities or in the production of audiovisual works, in the direct or indirect financing of a programme with a view to promoting the name, trademark or image of that person.

Article 3

Field of application

This Convention shall apply to any programme service transmitted or retransmitted by entities or by technical means within the jurisdiction of a Party, whether by cable, terrestrial transmitter or satellite, and which can be received, directly or indirectly, in one or more other Parties.

Article 4

Freedom of reception and retransmission

The Parties shall ensure freedom of expression and information in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention.

Article 5

Duties of the transmitting Parties

1. Each transmitting Party shall ensure, by appropriate means and through its competent organs, that all programme services transmitted by entities or by technical means within its jurisdiction, within the meaning of Article 3, comply with the terms of this Convention.
    2. For the purposes of this Convention, the transmitting Party shall be:
    a in the case of terrestrial transmissions, the Party in which the initial emission is effected;
    b in the case of satellite transmissions:
    i the Party in which the satellite up-link is situated;
    ii the Party which grants the use of the frequency or a satellite capacity when the up-link is situated in a State which is not a Party to this Convention;
    iii the Party in which the broadcaster has its seat when responsibility under sub-paragraphs i and ii is not established.
    3. When programme services transmitted from States which are not Parties to this Convention are retransmitted by entities or by technical means within the jurisdiction of a Party, within the meaning of Article 3, that Party, acting as transmitting Party, shall ensure, by appropriate means and through its competent organs, compliance with the terms of this Convention.

Article 6

Provision of information

1. The responsibilities of the broadcaster shall be clearly and adequately specified in the authorisation issued by, or contract concluded with, the competent authority of each Party, or by any other legal measure.
    2. Information about the broadcaster shall be made available, upon request, by the competent authority of the transmitting Party. Such information shall include, as a minimum, the name or denomination, seat and status of the broadcaster, the name of the legal representative, the composition of the capital, the nature, purpose and mode of financing of the programme service the broadcaster is providing or intends providing.

Chapter II

Programming matters

Article 7

Responsibilities of the broadcaster

1. All items of programme services, as concerns their presentation and content, shall respect the dignity of the human being and the fundamental rights of others.
    2. In particular, they shall not:
    a be indecent and in particular contain pornography;
    b give undue prominence to violence or be likely to incite to racial hatred.
    3. All items of programme services which are likely to impair the physical, mental or moral development of children and adolescents shall not be scheduled when, because of the time of transmission and reception, they are likely to watch them.
    4. The broadcaster shall ensure that news fairly present facts and events and encourage the free formation of opinions.

Article 8

Right of reply

1. Each transmitting Party shall ensure that every natural or legal person, regardless of nationality or place of residence, shall have the opportunity to exercise a right of reply or to seek other comparable legal or administrative remedies relating to programmes transmitted or retransmitted by entities or by technical means within its jurisdiction, within the meaning of Article 3. In particular, it shall ensure that timing and other arrangements for the exercise of the right of reply are such that this right can be effectively exercised. The effective exercise of this right or other comparable legal or administrative remedies shall be ensured both as regards the timing and the modalities.
    2. For this purpose, the name of the broadcaster responsible for the programme service shall be identified therein at regular intervals by appropriate means.

Article 9

Access of the public to major events

Each Party shall examine the legal measures to avoid the right of the public to information being undermined due to the exercise by a broadcaster of exclusive rights for the transmission or retransmission, within the meaning of Article 3, of an event of high public interest and which has the effect of depriving a large part of the public in one or more other Parties of the opportunity to follow that event on television.

Article 10

Cultural objectives

1. Each transmitting Party shall ensure, where practicable and by appropriate means, that broadcasters reserve for European works a majority proportion of their transmission time, excluding the time appointed to news, sports events, games, advertising and teletext services. This proportion, having regard to the broadcaster’s informational, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria.
    2. In case of disagreement between a receiving Party and a transmitting Party on the application of the preceding paragraph, recourse may be had, at the request of one of the Parties, to the Standing Committee with a view to its formulating an advisory opinion on the subject. Such a disagreement shall not be submitted to the arbitration procedure provided for in Article 26.
    3. The Parties undertake to look together for the most appropriate instruments and procedures to support, without discrimination between broadcasters, the activity and development of European production, particularly in countries with a low audiovisual production capacity or restricted language area.
    4. The Parties, in the spirit of co-operation and mutual assistance which underlies this Convention, shall endeavour to avoid that programme services transmitted or retransmitted by entities or by technical means within their jurisdiction, within the meaning of Article 3, endanger the pluralism of the press and the development of the cinema industries. No cinematographic work shall accordingly be transmitted in such services, unless otherwise agreed between its rights holders and the broadcaster, until two years have elapsed since the work was first shown in cinemas; in the case of cinematographic works co-produced by the broadcaster, this period shall be one year.

Chapter III

Advertising

Article 11

General standards

1. All advertisements shall be fair and honest.
    2. Advertisements shall not be misleading and shall not prejudice the interests of consumers.
    3. Advertisements addressed to or using children shall avoid anything likely to harm their interests and shall have regard to their special susceptibilities.
    4. The advertiser shall not exercise any editorial influence over the content of programmes.

Article 12

Duration

1. The amount of advertising shall not exceed 15% of the daily transmission time. However, this percentage may be increased to 20% to include forms of advertisements such as direct offers to the public for the sale, purchase or rental of products or for the provision of services, provided the amount of spot advertising does not exceed 15%.
    2. The amount of spot advertising within a given one-hour period shall not exceed 20%.
    3. Forms of advertisements such as direct offers to the public for the sale, purchase or rental of products or for the provision of services shall not exceed one hour per day.

Article 13

Form and presentation

1. Advertisements shall be clearly distinguishable as such and recognisably separate from the other items of the programme service by optical or acoustic means. In principle, they shall be transmitted in blocks.
    2. Subliminal advertisements shall not be allowed.
    3. Surreptitious advertisements shall not be allowed, in particular the presentation of products or services in programmes when it serves advertising purposes.
    4. Advertisements shall not feature, visually or orally, persons regularly presenting news and current affairs programmes.

Article 14

Insertion of advertisements

1. Advertisements shall be inserted between programmes. Provided the conditions contained in paragraphs 2 to 5 of this article are fulfilled, advertisements may also be inserted during programmes in such a way that the integrity and value of the programme and the rights of the rights holders are not prejudiced.
    2. In programmes consisting of autonomous parts, or in sports programmes and similarly structured events and performances comprising intervals, advertisements shall only be inserted between the parts or in the intervals.
    3. The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light entertainment programmes and documentaries), provided their duration is more than forty-five minutes, may be interrupted once for each complete period of forty-five minutes. A further interruption is allowed if their duration is at least twenty minutes longer than two or more complete periods of forty-five minutes.
    4. Where programmes, other than those covered by paragraph 2, are interrupted by advertisements, a period of at least twenty minutes should elapse between each successive advertising break within the programme.
    5. Advertisements shall not be inserted in any broadcast of a religious service. News and current affairs programmes, documentaries, religious programmes, and children’s programmes, when they are less than thirty minutes of duration, shall not be interrupted by advertisements. If they last for thirty minutes or longer, the provisions of the previous paragraphs shall apply.

Article 15

Advertising of particular products

1. Advertisements for tobacco products shall not be allowed.
    2. Advertisements for alcoholic beverages of all varieties shall comply with the following rules:
    a they shall not be addressed particularly to minors and no one associated with the consumption of alcoholic beverages in advertisements should seem to be a minor;
    b they shall not link the consumption of alcohol to physical performance or driving;
    c they shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal problems;
    d they shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
    e they shall not place undue emphasis on the alcoholic content of beverages.
    3. Advertisements for medicines and medical treatment which are only available on medical prescription in the transmitting Party shall not be allowed.
    4. Advertisements for all other medicines and medical treatment shall be clearly distinguishable as such, honest, truthful and subject to verification and shall comply with the requirement of protection of the individual from harm.

Article 16

Advertising directed specifically at a single Party

1. In order to avoid distortions in competition and endangering the television system of a Party, advertisements which are specifically and with some frequency directed to audiences in a single Party other than the transmitting Party shall not circumvent the television advertising rules in that particular Party.
    2. The provisions of the preceding paragraph shall not apply where:
    a the rules concerned establish a discrimination between advertisements transmitted by entities or by technical means within the jurisdiction of that Party and advertisements transmitted by entities or by technical means within the jurisdiction of another Party; or
    b the Parties concerned have concluded bilateral or multilateral agreements in this area.

Chapter IV

Sponsorship

Article 17

General standards

1. When a programme or series of programmes is sponsored in whole or in part, it shall clearly be identified as such by appropriate credits at the beginning and/or end of the programme.
    2. The content and scheduling of sponsored programmes may in no circumstances be influenced by the sponsor in such a way as to affect the responsibility and editorial independence of the broadcaster in respect of programmes.
    3. Sponsored programmes shall not encourage the sale, purchase or rental of the products or services of the sponsor or a third party, in particular by making special promotional references to those products or services in such programmes.

Article 18

Prohibited sponsorship

1. Programmes may not be sponsored by natural or legal persons whose principal activity is themanufacture or sale of products, or the provision of services, the advertising of which is prohibited by virtue of Article 15.
    2. Sponsorship of news and current affairs programmes shall not be allowed.

Chapter V

Mutual assistance

Article 19

Co-operation between the Parties

1. The Parties undertake to render each other mutual assistance in order to implement this Convention.
    2. For that purpose:
    a each Contracting State shall designate one or more authorities, the name and address of each of which it shall communicate to the Secretary General of the Council of Europe at the time of deposit of its instrument of ratification, acceptance, approval or accession;
    b each Contracting State which has designated more than one authority shall specify in its communication under sub-paragraph a the competence of each authority.
    3. An authority designated by a Party shall:
    a furnish the information foreseen under Article 6, paragraph 2, of this Convention;
    b furnish information at the request of an authority designated by another Party on the domestic law and practices in the fields covered by this Convention;
    c co-operate with the authorities designated by the other Parties whenever useful, and notably where this would enhance the effectiveness of measures taken in implementation of this Convention;
    d consider any difficulty arising from the application of this Convention which is brought to its attention by an authority designated by another Party.

Chapter VI

Standing Committee

Article 20

Standing Committee

1. For the purposes of this Convention, a Standing Committee shall be set up.
    2. Each Party may be represented on the Standing Committee by one or more delegates. Each delegation shall have one vote. Within the areas of its competence, the European Economic Community shall exercise its right to vote with a number of votes equal to the number of its member States which are Parties to this Convention; the European Economic Community shall not exercise its right to vote in cases where the member States concerned exercise theirs, and conversely.
    3. Any State referred to in Article 29, paragraph 1, which is not a Party to this Convention may be represented on the Standing Committee by an observer.
    4. The Standing Committee may seek the advice of experts in order to discharge its functions. It may, on its own initiative or at the request of the body concerned, invite any international or national, governmental or non-governmental body technically qualified in the fields covered by this Convention to be represented by an observer at one or part of one of its meetings. The decision to invite such experts or bodies shall be taken by a majority of three-quarters of the members of the Standing Committee.
    5. The Standing Committee shall be convened by the Secretary General of the Council of Europe. Its first meeting shall be held within six months of the date of entry into force of the Convention. It shall subsequently meet whenever one-third of the Parties or the Committee of Ministers of the Council of Europe so requests, or on the initiative of the Secretary General of the Council of Europe in accordance with the provisions of Article 23, paragraph 2, or at the request of one or more Parties in accordance with the provisions of Articles 21, sub-paragraph c, and 25, paragraph 2.
    6. A majority of the Parties shall constitute a quorum for holding a meeting of the Standing Committee.
    7. Subject to the provisions of paragraph 4 and Article 23, paragraph 3, the decisions of the Standing Committee shall be taken by a majority of three-quarters of the members present.
    8. Subject to the provisions of this Convention, the Standing Committee shall draw up its own Rules of Procedure.

Article 21

Functions of the Standing Committee

The Standing Committee shall be responsible for following the application of this Convention. It may:
    a make recommendations to the Parties concerning the application of the Convention;
    b suggest any necessary modifications of the Convention and examine those proposed in accordance with the provisions of Article 23;
    c examine, at the request of one or more Parties, questions concerning the interpretation of the Convention;
    d use its best endeavours to secure a friendly settlement of any difficulty referred to it in accordance with the provisions of Article 25;
    e make recommendations to the Committee of Ministers concerning States other than those referred to in Article 29, paragraph 1, to be invited to accede to this Convention.

Article 22

Reports of the Standing Committee

After each meeting, the Standing Committee shall forward to the Parties and the Committee of Ministers of the Council of Europe a report on its discussions and any decisions taken.

Chapter VII

Amendments

Article 23

Amendments

1. Any Party may propose amendments to this Convention.
    2. Any proposal for amendment shall be notified to the Secretary General of the Council of Europe who shall communicate it to the member States of the Council of Europe, to the other States party to the European Cultural Convention, to the European Economic Community and to any non-member State which has acceded to, or has been invited to accede to this Convention in accordance with the provisions of Article 30. The Secretary General of the Council of Europe shall convene a meeting of the Standing Committee at the earliest two months following the communication of the proposal.
    3. The Standing Committee shall examine any amendment proposed and shall submit the text adopted by a majority of three-quarters of the members of the Standing Committee to the Committee of Ministers for approval. After its approval, the text shall be forwarded to the Parties for acceptance.
    4. Any amendment shall enter into force on the thirtieth day after all the Parties have informed the Secretary General of their acceptance thereof.

Chapter VIII

Alleged violations of this Convention

Article 24

Alleged violations of this Convention

1. When a Party finds a violation of this Convention, it shall communicate to the transmitting Party the alleged violation and the two Parties shall endeavour to overcome the difficulty on the basis of the provisions of Articles 19, 25 and 26.
    2. If the alleged violation is of a manifest, serious and grave nature which raises important public issues and concerns Articles 7, paragraphs 1 or 2, 12, 13, paragraph 1, first sentence, or 15, paragraphs 1 or 3, and if it persists within two weeks following the communication, the receiving Party may suspend provisionally the retransmission of the incriminated programme service.
    3. In all other cases of alleged violation, with the exception of those provided for in paragraph the receiving Party may suspend provisionally the retransmission of the incriminated programme service eight months following the communication, if the alleged violation persists.
    4. The provisional suspension of retransmission shall not be allowed in the case of alleged violations of Articles 7, paragraph 3, 8, 9 or 10.

Chapter IX

Settlement of disputes

Article 25

Conciliation

1. In case of difficulty arising from the application of this Convention, the Parties concerned shall endeavour to achieve a friendly settlement.
    2. Unless one of the Parties concerned objects, the Standing Committee may examine the question, by placing itself at the disposal of the Parties concerned in order to reach a satisfactory solution as rapidly as possible and, where appropriate, to formulate an advisory opinion on the subject.
    3. Each Party concerned undertakes to accord the Standing Committee, without delay, all information and facilities necessary for the discharge of its functions under the preceding paragraph.

Article 26

Arbitration

1. If the Parties concerned cannot settle the dispute in accordance with the provisions of Article 5, they may, by common agreement, submit it to arbitration, the procedure of which is provided for in the appendix to this Convention. In the absence of such an agreement within six months following the first request to open the procedure of conciliation, the dispute may be submitted to arbitration at the request of one of the Parties.
    2. Any Party may, at any time, declare that it recognises as compulsory ipso facto and without special agreement in respect of any other Party accepting the same obligation the application of the arbitration procedure provided for in the appendix to this Convention.

Chapter X

Other international agreements and the internal law of the parties

Article 27

Other international agreements or arrangements

1. In their mutual relations, Parties which are members of the European Economic Community shall apply Community rules and shall not therefore apply the rules arising from this Convention except insofar as there is no Community rule governing the particular subject concerned.
    2. Nothing in this Convention shall prevent the Parties from concluding international agreements completing or developing its provisions or extending their field of application.
    3. In the case of bilateral agreements, this Convention shall not alter the rights and obligations of Parties which arise from such agreements and which do not affect the enjoyment of other Parties of their rights or the performance of their obligations under this Convention.

Article 28

Relations between the Convention and the internal law of the Parties

Nothing in this Convention shall prevent the Parties from applying stricter or more detailed rules than those provided for in this Convention to programme services transmitted by entities or by technical means within their jurisdiction, within the meaning of Article 3.

Chapter XI

Final provisions

Article 29

Signature and entry into force

1.This Convention shall be open for signature by the member States of the Council of Europe and the other States party to the European Cultural Convention, and by the European Economic Community. It is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
    2. This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which seven States, of which at least five member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of the preceding paragraph.
    3. A State may, at the time of signature or at any later date prior to the entry into force of this Convention in respect of that State, declare that it shall apply the Convention provisionally.
    4. In respect of any State referred to in paragraph 1, or the European Economic Community, which subsequently express their consent to be bound by it, this Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of ratification, acceptance or approval.

Article 30

Accession by non-member States

1. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe, after consulting the Contracting States may invite any other State to accede to this Convention by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee.
    2. In respect of any acceding State, this Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 31

Territorial application

1. Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.
    2. Any State may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration. In respect of such territory, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
    3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of such notification by the Secretary General.

Article 32

Reservations

1. At the time of signature or when depositing its instrument of ratification, acceptance, approval or accession:
    a any State may declare that it reserves the right to restrict the retransmission on its territory, solely to the extent that it does not comply with its domestic legislation, of programme services containing advertisements for alcoholic beverages according to the rules provided for in Article 15, paragraph 2, of this Convention;
    b the United Kingdom may declare that it reserves the right not to fulfil the obligation, set out in Article 15, paragraph 1, to prohibit advertisements for tobacco products, in respect of advertisements for cigars and pipe tobacco broadcast by the Independent Broadcasting Authority by terrestrial means on its territory.
    No other reservation may be made.
    2. A reservation made in accordance with the preceding paragraph may not be the subject of an objection.
    3. Any Contracting State which has made a reservation under paragraph 1 may wholly or partly withdraw it by means of a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall take effect on the date of receipt of such notification by the Secretary General.
    4. A Party which has made a reservation in respect of a provision of this Convention may not claim the application of that provision by any other Party; it may, however, if its reservation is partial or conditional, claim the application of that provision in so far as it has itself accepted it.

Article 33

Denunciation

1. Any Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.
    2. Such denunciation shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary General.

Article 34

Notifications

The Secretary General of the Council of Europe shall notify the member States of the Council, the other States party to the European Cultural Convention, the European Economic Community and any State which has acceded to, or has been invited to accede to this Convention of:
    a any signature;
    b the deposit of any instrument of ratification, acceptance, approval or accession;
    c any date of entry into force of this Convention in accordance with the provisions of Articles 29, 30 and 31;
    d any report established in accordance with the provisions of Article 22;
    e any other act, declaration, notification or communication relating to this Convention.
    In witness whereof the undersigned, being duly authorised thereto, have signed this Convention.
    Done at Strasbourg, the 5th May 1989, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the other States Party to the European Cultural Convention, to the European Economic Community and to any State invited to accede to this Convention.

The member States of the Council of Europe and the other Parties to the European Convention on Transfrontier Television, opened for signature in Strasbourg on 5 May 1989 (hereinafter referred to as “the Convention“),
    Welcoming the fact that the enlargement of the membership of the Council of Europe since 1989 has led to the development and implementation at the pan-European level of the legal framework provided for under the Convention;
    Considering the major technological and economic developments in the field of television broadcasting as well as the appearance of new communications services in Europe since the adoption of the Convention in 1989;
    Noting that these developments call for a revision of the provisions of the Convention;
    Bearing in mind, in this regard, the adoption by the European Community of Directive 97/36/EC of the European Parliament and of the Council of 19 June 1997 amending Council Directive 89/552/EEC on the co-ordination of certain provisions laid down by law, regulation or administrative action in member states concerning the pursuit of television broadcasting activities;
    Considering the urgent need to amend certain provisions of the Convention in order to develop a coherent approach to transfrontier television between this instrument and the directive, as underlined in the Declaration on Media in a Democratic Society adopted by the ministers of the States participating in the 4th European Ministerial Conference on Mass Media Policy (Prague, 7-8 December 1994) and in the political Declaration of the 5th European Ministerial Conference (Thessaloniki, 11-12 December 1997);
    Wishing to further develop the principles embodied in the Council of Europe recommendations on the drawing up of strategies to combat smoking, alcohol and drug dependence in co-operation with opinion-makers and the media, on the right to short reporting on major events where exclusive rights for their television broadcast have been acquired in a transfrontier context and on the portrayal of violence in the electronic media, which have been adopted within the framework of the Council of Europe since the Convention was adopted,
    Have agreed as follows:

Article 1

The word “juridiction“ in Article 8, paragraph 1, and in Article 16, paragraph 2a, in the French text, shall be replaced by the word “compétence“.

Article 2

The word “advertisements“ in Article 15, paragraphs 3 and 4, in the English text, shall be replaced by the word “advertising“.

Article 3

The definition of “Broadcaster“ in Article 2, paragraph c, shall be worded as follows:

“c “Broadcaster“ means the natural or legal person who has editorial responsibility for the composition of television programme services for reception by the general public and transmits them or has them transmitted, complete and unchanged, by a third party;“

Article 4

The definition of “Advertisement“ in Article 2, paragraph f, shall be worded as follows:

“f “Advertising“ means any public announcement in return for payment or similar consideration or for self-promotional purposes, which is intended to promote the sale, purchase or rental of a product or service, to advance a cause or idea, or to bring about some other effect desired by the advertiser or the broadcaster itself;“

Article 5

A new paragraph g reading as follows shall be inserted in Article 2:

“g “Tele-shopping“ means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations in return for payment;“

Article 6

Article 2, paragraph g, shall be renumbered to Article 2, paragraph h.

Article 7

The following text shall replace Article 5:

“Article 5: Duties of the transmitting Parties

1 Each transmitting Party shall ensure that all programme services transmitted by a broadcaster within its jurisdiction comply with the terms of this Convention.
    2 For the purposes of this Convention, a broadcaster within the jurisdiction of a Party is:
    – a broadcaster who is deemed to be established in that Party according to paragraph 3;
    – a broadcaster to whom paragraph 4 applies.
    3 For the purposes of this Convention, a broadcaster shall be deemed to be established in a Party, hereinafter referred to as the “transmitting Party“, in the following cases:
    a the broadcaster has its head office in that Party and the decisions on programme schedules are taken in that Party;
    b if a broadcaster has its head office in one Party but decisions on programme schedules are taken in another Party, it shall be deemed to be established in the Party where a significant part of the workforce involved in the pursuit of the television broadcasting activity operates; if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in each of those Parties, the broadcaster shall be deemed to be established in the Party where it has its head office; if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in neither of those Parties, the broadcaster shall be deemed to be established in the Party where it first began broadcasting in accordance with the system of law of that Party, provided that it maintain a stable and effective link with the economy of that Party;
    c if a broadcaster has its head office in a Party but decisions on programme schedules are taken in a State which is not Party to this Convention, or vice-versa, it shall be deemed to be established in the Party concerned, provided that a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in that Party;
    d if, when applying the criteria of paragraph 3 of Article 2 of Directive 97/36/EC of the European Parliament and of the Council of 19 June 1997 amending Council Directive 89/552/EEC on the co-ordination of certain provisions laid down by law, regulation or administrative action in member States concerning the pursuit of television broadcasting activities, a broadcaster is deemed to be established in a member State of the European Community, that broadcaster shall also be deemed to be established in that State for the purposes of this Convention.
    4 A broadcaster to whom the provisions of paragraph 3 is not applicable is deemed to be within the jurisdiction of a Party, so-called transmitting Party, in the following cases:
    a it uses a frequency granted by that Party;
    b although it does not use a frequency granted by a Party it does use a satellite capacity appertaining to that Party;
    c although it uses neither a frequency granted by a Party nor a satellite capacity appertaining to a Party it does use a satellite up-link situated in that Party.
    5 If the transmitting Party cannot be determined according to paragraph 4, the Standing Committee shall consider this issue according to Article 21, paragraph 1, indent a, of this Convention, in order to determine this Party.
    6 This Convention shall not apply to television broadcasts intended exclusively for reception in States which are not Party to this Convention, and which are not received directly or indirectly by the public in one or more Parties.“

Article 8

Article 8 shall have the following wording:

“Article 8: Right of reply

1 Each transmitting Party shall ensure that every natural or legal person, regardless of nationality or place of residence, shall have the opportunity to exercise a right of reply or to seek other comparable legal or administrative remedies relating to programmes transmitted by a broadcaster within its jurisdiction, within the meaning of Article 5. In particular, it shall ensure that timing and other arrangements for the exercise of the right of reply are such that this right can be effectively exercised. The effective exercise of this right or other comparable legal or administrative remedies shall be ensured both as regards the timing and the modalities.
    2 For this purpose, the name of the programme service or of the broadcaster responsible for this programme service shall be identified in the programme service itself, at regular intervals by appropriate means.“

Article 9

The following text shall replace Article 9:

“Article 9: Access of the public to information

Each Party shall examine and, where necessary, take legal measures such as introducing the right to short reporting on events of high interest for the public to avoid the right of the public to information being undermined due to the exercise by a broadcaster within its jurisdiction of exclusive rights for the transmission or retransmission, within the meaning of Article 3, of such an event.“

Article 10

A new Article 9bis, worded as follows, shall be inserted:

“Article 9bis: Access of the public to events of major importance

1 Each Party retains the right to take measures to ensure that a broadcaster within its jurisdiction does not broadcast on an exclusive basis events which are regarded by that Party as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Party of the possibility of following such events by live coverage or deferred coverage on free television. If it does so, the Party concerned may have recourse to the drafting of a list of designated events which it considers to be of major importance for society.
    2 Parties shall ensure by appropriate means, respecting the legal guarantees granted by the Convention for the Protection of Human Rights and Fundamental Freedoms as well as, where appropriate, the national constitution, that a broadcaster within their jurisdiction does not exercise the exclusive rights purchased by that broadcaster following the date of entry into force of the Protocol amending the European Convention on Transfrontier Television in such a way that a substantial proportion of the public in another Party is deprived of the possibility of following events which are designated by that other Party, via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage on free television as determined by that other Party under paragraph 1, respecting the following requirements:
    a the Party implementing the measures referred to in paragraph 1 shall draw up a list of national or non-national events which are considered by that Party as being of major importance for society;
    b the Party shall do so in a clear and transparent manner in due and effective time;
    c the Party shall determine whether these events shall be available via whole or partial live coverage, or where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage;
    d the measures taken by the Party drawing up the list shall be proportionate and as detailed as necessary to enable other Parties to take measures referred to in this paragraph;
    e the Party drawing up the list shall notify the list and the corresponding measures to the Standing Committee, the time limit for which shall be fixed by the Standing Committee;
    f the measures taken by the Party drawing up the list shall be within the limitations of the guidelines of the Standing Committee referred to in paragraph 3 and the Standing Committee must have given a positive opinion on the measures.
    Measures based on this paragraph shall apply only to those events published by the Standing Committee in the annual list referred to in paragraph 3 and to those exclusive rights purchased after the entry into force of this amending Protocol.
    3 Once a year the Standing Committee shall:
    a publish a consolidated list of the enlisted events and corresponding measures notified by Parties in accordance with paragraph 2e;
    b draw up guidelines to be adopted by a majority of three quarters of the members in addition to the requirements listed up in paragraph 2 a to e in order to avoid differences between the implementation of this Article and that of corresponding European Community provisions.“

Article 11

Paragraph 1 of Article 10 shall have the following wording:

“1 Each transmitting Party shall ensure, where practicable and by appropriate means, that a broadcaster within its jurisdiction reserves for European works a majority proportion of its transmission time, excluding the time appointed to news, sports events, games, advertising, teletext services and tele-shopping. This proportion, having regard to the broadcaster’s informational, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria.“

Article 12

Paragraph 4 of Article 10 shall have the following wording:

“4 The Parties shall ensure that a broadcaster within their jurisdiction does not broadcast cinematographic works outside periods agreed with the rights holders.“

Article 13

A new Article 10bis reading as follows shall be inserted:

“Article 10bis: Media pluralism

The Parties, in the spirit of co-operation and mutual assistance which underlies this Convention, shall endeavour to avoid that programme services transmitted or retransmitted by a broadcaster or any other legal or natural persons within their jurisdiction, within the meaning of Article 3, endanger media pluralism.“

Article 14

The heading of Chapter III shall read as follows:

“Advertising and tele-shopping“

Article 15

Article 11 shall have the following wording:

“1 Advertising and tele-shopping shall be fair and honest.

2 Advertising and tele-shopping shall not be misleading and shall not prejudice the interests of consumers.
    3 Advertising and tele-shopping addressed to or using children shall avoid anything likely to harm their interests and shall have regard to their special susceptibilities.
    4 Tele-shopping shall not exhort minors to contract for the sale or rental of goods and services.
    5 The advertiser shall not exercise any editorial influence over the content of programmes.“

Article 16

Article 12 shall have the following wording:

“Article 12: Duration

1 The proportion of tele-shopping spots, advertising spots and other forms of advertising, with the exception of tele-shopping windows within the meaning of paragraph 3, shall not exceed 20% of the daily transmission time. The transmission time for advertising spots shall not exceed 15% of the daily transmission time.
    2 The proportion of advertising spots and tele-shopping spots within a given clock hour shall not exceed 20%.
    3 Windows devoted to tele-shopping programmes broadcast within programme services which are not exclusively devoted to tele-shopping shall be of a minimum uninterrupted duration of 15 minutes. The maximum number of windows per day shall be eight. Their overall duration shall not exceed three hours per day. They must be clearly identified by optical and acoustic means.
    4 For the purposes of this article, advertising shall not include:
    – announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes;
    – announcements in the public interest and charity appeals broadcast free of charge.“

Article 17

Article 13 shall have the following wording:

“Article 13: Form and presentation

1 Advertising and tele-shopping shall be clearly distinguishable as such and recognisably separate from the other items of the programme service by optical and/or acoustic means. In principle, advertising and tele-shopping spots shall be transmitted in blocks.
    2 Advertising and tele-shopping shall not use subliminal techniques.
    3 Surreptitious advertising and tele-shopping shall not be allowed, in particular the presentation of products or services in programmes when it serves advertising purposes.
    4 Advertising and tele-shopping shall not feature, visually or orally, persons regularly presenting news and current affairs programmes.“

Article 18

The following text shall replace Article 14:

“Article 14: Insertion of advertising and tele-shopping

1 Advertising and tele-shopping shall be inserted between programmes. Provided the conditions contained in paragraphs 2 to 5 of this article are fulfilled, advertising and tele-shopping spots may also be inserted during programmes in such a way that the integrity and value of the programme and the rights of the rights holders are not prejudiced.
    2 In programmes consisting of autonomous parts, or in sports programmes and similarly structured events and performances containing intervals, advertising and tele-shopping spots shall only be inserted between the parts or in the intervals.
    3 The transmission of audiovisual works such as feature films and films made for television (excluding series, serials, light entertainment programmes and documentaries), provided their scheduled duration is more than forty-five minutes, may be interrupted once for each complete period of forty-five minutes. A further interruption is allowed if their scheduled duration is at least twenty minutes longer than two or more complete periods of forty-five minutes.
    4 Where programmes, other than those covered by paragraph 2, are interrupted by advertising or tele-shopping spots, a period of at least twenty minutes should elapse between each successive advertising or tele-shopping break within the programme.
    5 Advertising and tele-shopping shall not be inserted in any broadcast of a religious service. News and current affairs programmes, documentaries, religious programmes, and children’s programmes, when their scheduled duration is less than thirty minutes, shall not be interrupted by advertising or tele-shopping. If their scheduled duration is thirty minutes or longer, the provisions of the previous paragraphs shall apply.“

Article 19

The heading of Article 15 and paragraphs 1 to 2a, of this article shall have the following wording:

“Article 15: Advertising and tele-shopping of particular products

1 Advertising and tele-shopping for tobacco products shall not be allowed.
    2 Advertising and tele-shopping for alcoholic beverages of all varieties shall comply with the following rules:
    a they shall not be addressed particularly to minors and no one associated with the consumption of alcoholic beverages in advertising or tele-shopping should seem to be a minor;“

Article 20

In the French text, Article 15, paragraph 2, sub-paragraphs b to e, shall be worded as follows:

“b ils ne doivent pas associer la consommation de l’alcool ŕ des performances physiques ou ŕ la conduite automobile;

c ils ne doivent pas suggérer que les boissons alcoolisées sont dotées de propriétés thérapeutiques ou qu’elles ont un effet stimulant, sédatif, ou qu’elles peuvent résoudre des problčmes personnels;
    d ils ne doivent pas encourager la consommation immodérée de boissons alcoolisées ou donner une image négative de l’abstinence ou de la sobriété;
    e ils ne doivent pas souligner indűment la teneur en alcool des boissons.“

Article 21

A new paragraph 5 reading as follows shall be inserted in Article 15:

“5 Tele-shopping for medicines and medical treatment shall not be allowed.“

Article 22

Article 16 will have the following wording:

“Article 16: Advertising and tele-shopping directed specifically at a single Party

1 In order to avoid distortions in competition and endangering the television system of a Party, advertising and tele-shopping which are specifically and with some frequency directed to audiences in a single Party other than the transmitting Party shall not circumvent the television advertising and tele-shopping rules in that particular Party.
    2 The provisions of the preceding paragraph shall not apply where:
    a the rules concerned establish a discrimination between advertising and tele-shopping transmitted by a broadcaster within the jurisdiction of that Party and advertising and tele-shopping transmitted by a broadcaster or any other legal or natural person within the jurisdiction of another Party; or
    b the Parties concerned have concluded bilateral or multilateral agreements in this area.“

Article 23

Paragraph 1 of Article 18 shall read as follows:

“1 Programmes may not be sponsored by natural or legal persons whose principal activity is the manufacture or sale of products, or the provision of services, the advertising and tele-shopping of which are prohibited by virtue of Article 15.“

Article 24

A new paragraph 2 reading as follows shall be inserted in Article 18:

“2 Companies whose activity includes, inter alia, the manufacture or sale of medicines and medical treatments may sponsor programmes by promoting the name, trademark, image or activities of the company, to the exclusion of any reference to medicines or specific medical treatment available only on medical prescription in the transmitting Party.“

Article 25

Paragraph 2 of Article 18 shall be renumbered to paragraph 3.

Article 26

A new Chapter IVbis reading as follows shall be inserted:

“Chapter IVbis

Programme services devoted exclusively to self-promotion or tele-shopping

Article 18bis: Programme services devoted exclusively to self-promotion

1 The provisions of this Convention shall apply mutatis mutandis to programme services devoted exclusively to self-promotion.
    2 Other forms of advertising shall be allowed on such services within the limits established by Article 12, paragraphs 1 and 2.

Article 18ter: Programme services devoted exclusively to tele-shopping

1 The provisions of this Convention shall apply mutatis mutandis to programme services devoted exclusively to tele-shopping.
    2 Advertising shall be allowed on such services within the limits established in Article 12, paragraph., Article 12, paragraph 2, shall not apply.“

Article 27

The last sentence of paragraph 4 of Article 20 shall be deleted and paragraph 7 of Article 20 shall have the following wording:

“7 Subject to the provisions of Article 9bis, paragraph 3b, and Article 23, paragraph 3, the decisions of the Standing Committee shall be taken by a majority of three-quarters of the members present.“

Article 28

Article 21 shall be supplemented as follows:

“f give opinions on abuse of rights under Article 24bis, paragraph 2c.

2 In addition, the Standing Committee shall:
    a draw up the guidelines referred to in Article 9bis, paragraph 3b, in order to avoid differences between the implementation of the provisions of this Convention concerning access of the public to events of major importance for society and that of corresponding European Community provisions;
    b give an opinion on the measures taken by Parties which have drawn up a list of national or non-national events which are considered by those Parties as being of major importance for society in accordance with Article 9bis, paragraph 2;
    c publish once a year a consolidated list of the enlisted events and corresponding measures notified by Parties in accordance with Article 9bis, paragraph 2e.“

Article 29

Two new paragraphs 5 and 6, reading as follows, shall be inserted in Article 23:

“5 However, the Committee of Ministers may, after consulting the Standing Committee, decide that a particular amendment shall enter into force following the expiry of a period of two years after the date on which it has been opened to acceptance, unless a Party has notified the Secretary General of the Council of Europe of an objection to its entry into force. Should such an objection be notified, the amendment shall enter into force on the first day of the month following the date on which the Party to the Convention which has notified the objection has deposited its instrument of acceptance with the Secretary General of the Council of Europe.

6 If an amendment has been approved by the Committee of Ministers, but has not yet entered into force in accordance with paragraphs 4 or 5, a State or the European Community may not express their consent to be bound by the Convention without accepting at the same time the amendment.“

Article 30

A new Article 24bis, reading as follows, shall be inserted:

“Article 24bis: Alleged abuses of rights conferred by this Convention

1 When the programme service of a broadcaster is wholly or principally directed at the territory of a Party other than that which has jurisdiction over the broadcaster (the “receiving Party“), and the broadcaster has established itself with a view to evading the laws in the areas covered by the Convention which would have applied to it had it fallen within the jurisdiction of that other Party, this shall constitute an abuse of rights.
    2 Where such an abuse is alleged by a Party, the following procedure shall apply:
    a the Parties concerned shall endeavour to achieve a friendly settlement;
    b if they fail to do so within three months, the receiving Party shall refer the matter to the Standing Committee;
    c having heard the views of the Parties concerned, the Standing Committee shall, within six months of the date on which the matter was referred to it, give an opinion on whether an abuse of rights has been committed and shall inform the Parties concerned accordingly.
    3 If the Standing Committee has concluded that an abuse of rights has occurred, the Party whose jurisdiction the broadcaster is deemed to be within shall take appropriate measures to remedy the abuse of rights and shall inform the Standing Committee of those measures.
    4 If the Party whose jurisdiction the broadcaster is deemed to be within has failed to take the measures specified in paragraph 3 within six months, the arbitration procedure set out in Article 26, paragraph 2, and the appendix of the Convention shall be pursued by the Parties concerned.
    5 A receiving Party shall not take any measures against the programme service concerned until the arbitration procedure has been completed.
    6 Any measures proposed or taken under this article shall comply with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.“

Article 31

Article 28 shall have the following wording:

“Article 28: Relations between the Convention and the internal law of the Parties

Nothing in this Convention shall prevent the Parties from applying stricter or more detailed rules than those provided for in this Convention to programme services transmitted by a broadcaster deemed to be within their jurisdiction, within the meaning of Article 5.“

Article 32

Paragraph 1 of Article 32 shall have the following wording:

“1 At the time of signature or when depositing its instrument of ratification, acceptance, approval or accession any State may declare that it reserves the right to restrict the retransmission on its territory, solely to the extent that it does not comply with its domestic legislation, of programme services containing advertising for alcoholic beverages according to the rules provided for in Article 15, paragraph 2, of this Convention.

No other reservation may be made.“

Article 33

In Article 20, paragraph 2, Article 23, paragraph 2, Article 27, paragraph 1, Article 29, paragraphs 1 and 4, Article 34 and in the closing formula, the words “European Economic Community“ are replaced by “European Community“.

Article 34

This Protocol shall be open for acceptance by the Parties to the Convention. No reservation may be made.

Article 35

1 This Protocol shall enter into force on the first day of the month following the date on which the last of the Parties to the Convention has deposited its instrument of acceptance with the Secretary General of the Council of Europe.
    2 However, this Protocol shall enter into force following the expiry of a period of two years after the date on which it has been opened to acceptance, unless a Party to the Convention has notified the Secretary General of the Council of Europe of an objection to its entry into force. The right to make an objection shall be reserved to those States or the European Community which expressed their consent to be bound by the Convention prior to the expiry of a period of three months after the opening for acceptance of this Protocol.
    3 Should such an objection be notified, the Protocol shall enter into force on the first day of the month following the date on which the Party to the Convention which has notified the objection has deposited its instrument of acceptance with the Secretary General of the Council of Europe.
    4 A Party to the Convention may, at any time, declare that it will apply the Protocol on a provisional basis.

Article 36

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the other Parties to the Convention and the European Community of:
    a the deposit of any instrument of acceptance;
    b any declaration of provisional application of this Protocol in accordance with Article 35, paragraph 4;
    c any date of entry into force of this Protocol in accordance with Article 35, paragraphs 1 to 3;
    d any other act, notification or communication relating to this Protocol.
    Done at Strasbourg, the 9th day of September 1998, in English and French, and opened for acceptance the 1st day of October 1998. Both texts are equally authentic and shall be deposited in a single copy in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe, to the other Parties to the Convention and to the European Community.