If a television presenter invites viewers to participate in a prize game during a programme by dialling a premium rate telephone, it could constitute "teleshopping" and "television advertising" under the provisions of the Television Without Frontiers Directive of 1989. This was the conclusion of the Fourth Chamber of the European Court of Justice (ECJ) through a recent preliminary ruling referred it by the Austrian Court.
During a programme called Quiz-Express, aired on an Austrian TV station, viewers were invited to dial a premium rate telephone number that appeared on the screen, which cost €0.70 per call, a portion of which went to the Austrian Broadcasting Corporation and a portion to the telephone company. Callers would stand a chance to be put through to the programme's presenter and take part in the programme's quiz game by answering a question on the programme; if the caller failed to be put through, he would automatically participate in a weekly prize draw organised by the same programme.
The Austrian Communications Authority instituted legal action against the Austrian Broadcasting Corporation claiming that this prize game effectively constituted teleshopping and by devoting the major part of the programme to teleshopping, the programme infringed Austrian rules implementing the Television Without Frontiers Directive's provisions, which set the maximum periods of time per day and per clock hour that may be devoted to teleshopping.
The Austrian Court decided to stay the proceedings and to refer the matter to the ECJ for a preliminary ruling on whether prize game programmes such as this fell within the definition of teleshopping or television advertising.
Evidently the Austrian TV programme was not a traditional-style quiz programme intended solely to entertain the public but its aim was to attract viewers, with the lure of a prize, to participate in the quiz by paying a higher-than-normal telephone rate, part of which accrued to the TV broadcaster.
The ECJ highlighted the fact that Community law has the interests of consumers at heart. EU consumer law indeed safeguards consumers' rights as television viewers by making television advertising or teleshopping subject to strict rules, the primary one of which is the duty to distinguish between content which is solely promotional and other content which is educational or merely entertainment.
The EU Television Without Frontiers Directive in fact obliges broadcasters to make promotional material unambiguously identifiable to television viewers.
The court held that a game can constitute teleshopping only if it constitutes an actual economic activity in its own right, involving the supply of services as long as the game was not restricted to a mere offer of entertainment within the broadcast. But the court made it clear that not all promotional material, whereby a broadcaster seeks to make a television programme attractive, constitutes television advertising. In each case, it is up to the national court to decide whether the programme falls within one category or another.
Various criteria have to be taken into account by a national court in coming to this decision. The first and most important assessment by a national court would be to analyse the aim of the programme and whether the game offered on the programme is intended for entertainment purposes or simply to raise funds for the broadcaster. In the latter case, the game could be classified as teleshopping or television advertising and thus subject to the provisions of the Television Without Frontiers Directive.
• Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.
During a programme called Quiz-Express, aired on an Austrian TV station, viewers were invited to dial a premium rate telephone number that appeared on the screen, which cost €0.70 per call, a portion of which went to the Austrian Broadcasting Corporation and a portion to the telephone company. Callers would stand a chance to be put through to the programme's presenter and take part in the programme's quiz game by answering a question on the programme; if the caller failed to be put through, he would automatically participate in a weekly prize draw organised by the same programme.
The Austrian Communications Authority instituted legal action against the Austrian Broadcasting Corporation claiming that this prize game effectively constituted teleshopping and by devoting the major part of the programme to teleshopping, the programme infringed Austrian rules implementing the Television Without Frontiers Directive's provisions, which set the maximum periods of time per day and per clock hour that may be devoted to teleshopping.
The Austrian Court decided to stay the proceedings and to refer the matter to the ECJ for a preliminary ruling on whether prize game programmes such as this fell within the definition of teleshopping or television advertising.
Evidently the Austrian TV programme was not a traditional-style quiz programme intended solely to entertain the public but its aim was to attract viewers, with the lure of a prize, to participate in the quiz by paying a higher-than-normal telephone rate, part of which accrued to the TV broadcaster.
The ECJ highlighted the fact that Community law has the interests of consumers at heart. EU consumer law indeed safeguards consumers' rights as television viewers by making television advertising or teleshopping subject to strict rules, the primary one of which is the duty to distinguish between content which is solely promotional and other content which is educational or merely entertainment.
The EU Television Without Frontiers Directive in fact obliges broadcasters to make promotional material unambiguously identifiable to television viewers.
The court held that a game can constitute teleshopping only if it constitutes an actual economic activity in its own right, involving the supply of services as long as the game was not restricted to a mere offer of entertainment within the broadcast. But the court made it clear that not all promotional material, whereby a broadcaster seeks to make a television programme attractive, constitutes television advertising. In each case, it is up to the national court to decide whether the programme falls within one category or another.
Various criteria have to be taken into account by a national court in coming to this decision. The first and most important assessment by a national court would be to analyse the aim of the programme and whether the game offered on the programme is intended for entertainment purposes or simply to raise funds for the broadcaster. In the latter case, the game could be classified as teleshopping or television advertising and thus subject to the provisions of the Television Without Frontiers Directive.
• Dr Grech is an associate with Guido de Marco & Associates and heads its European law division.