An Act To Amend The Act Of 30 March 1995 Concerning Electronic Communications Networks And Electronic Communications Services And The Pursuit Of Broadcasting Activities In The Bilingual Brussels-Capital Region (1)

Original Language Title: Loi modifiant la loi du 30 mars 1995 concernant les réseaux de Communications électroniques et services de Communications électroniques et l'exercice d'activités de radiodiffusion dans la région bilingue de Bruxelles-Capitale (1)

Read the untranslated law here: http://www.ejustice.just.fgov.be/cgi/article_body.pl?numac=2012021153&caller=list&article_lang=F&row_id=1400&numero=1400&pub_date=2012-12-31&dt=LOI&language=fr&fr=f&choix1=ET&choix2=ET&fromtab=+moftxt&trier=publication&sql=dt+=+'LOI'&tri=pd+AS+RANK+

Posted the: 2012-12-31 Numac: 2012021153 programming policy scientist 27 December 2012 FEDERAL PUBLIC SERVICE. -Act to amend the Act of 30 March 1995 concerning electronic Communications networks and Electronic Communications services and the pursuit of broadcasting activities in the bilingual region of Brussels - capital (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
S.
2. the title of the Act of 30 March 1995 concerning electronic communications networks and electronic communications services and the pursuit of broadcasting activities in the bilingual Brussels-capital region is replaced by the following: "Act of 30 March 1995 concerning networks and electronic communications services, and the audiovisual media services in the bilingual region of Brussels-capital.
S. 3. article 1 of the law of 30 March 1995 concerning electronic communications networks and electronic communications services and the pursuit of broadcasting activities in the bilingual Brussels-capital region, such as amended by the law of July 8, 2001, 12 May 2003, 22 December 2003 and 16 March 2007, is hereby amended as follows: 1 ° a point 3/1 worded as follows, shall be inserted: ' 3/1. «» Audiovisual media service': a service that falls under the editorial responsibility of a provider of media and whose main purpose is the provision of programmes in order to inform, entertain or educate the general public by electronic communications networks. An audiovisual media service is either a television program within the meaning of point 3/2 of the present article, or a service of audiovisual media to the application within the meaning of point 3/3 of the present article, and/or audiovisual commercial communication; »;
2 ° a 3/2, worded as follows, shall be inserted: ' 3/2. ' television broadcasting ': or 'television broadcast': a linear audiovisual media service provided by a service provider of media for simultaneous viewing of programmes on the basis of a programme schedule; "
3 ° a 3/3, worded as follows, shall be inserted: ' 3/3. "demand audiovisual media service": a non-linear audiovisual media service provided by a service provider of media for the viewing of programmes at the moment chosen by the user and at the individual request on the basis of a catalogue of programmes selected by the media service provider; ";
4 ° item 5 is replaced by the following: ' 5 ' programme': a set of images animated, with or without sound constituting a single item within a schedule or a catalogue established by a media service provider and whose form and content are comparable to television broadcasting. '' A program is, for example, a film feature, a sporting event, a situation comedy, a documentary, a program for children, or an original fiction;
»;
item 6 ° 6/1 is replaced by the following: "; 6/1. 'media service provider': the natural or legal person who has editorial responsibility for the choice of the sound or audiovisual media sound or audio-visual content and determines the manner in which it is organised;";
7 ° a 6/2, worded as follows, shall be inserted: ' 6/2. ' broadcaster ': a provider of media of television broadcasting services;
»;
8 ° a 6/3, worded as follows, shall be inserted: ' 6/3. ' editorial responsibility ': the exercise of effective control both on the selection of the programmes and on their organization, or on a chronological grid, in the case of television broadcasts, or on a catalogue, in the case of on-demand audiovisual media services. " Editorial responsibility does not necessarily have legal responsibility for corollary any under national law for the content or the services provided; »;
9 ° to point 7, the words "television broadcasting program" are replaced by "audiovisual media service";
10 ° to point 8, the words 'broadcasting sound and television programmes' are replaced by 'sound and audiovisual media service ";
11 ° to point 9, the words "television broadcasting program" are replaced by "audiovisual media service";
12 ° a 9/1, worded as follows, shall be inserted: ' 9/1. 'audiovisual commercial communication': images, combined or not sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person who carries out an economic activity. '' These images accompany a program or there are inserted for payment or for similar consideration or for self-promotional purposes. Audiovisual commercial communication including takes the following forms: television advertising, sponsorship, teleshopping and product placement; »;
13 ° to point 11, the word 'advertising' is replaced by 'audiovisual commercial communication '.
14 ° point 12 is replaced by the following: '12.
'sponsorship': any contribution made by a public or private undertaking or natural person, not practicing activities or service provider of media for the production of audio-visual works, to the financing of programmes or audiovisual media services, with a view to promoting its name, its trademark, its image, its activities or its products; »;
15 ° to point 14, the words "broadcasting organization" shall be replaced by 'of the audiovisual media service provider.
16 ° a 13/1, worded as follows, shall be inserted: ' 13/1. 'product placement': any form of audiovisual commercial communication consisting of to include a product, a service or the trade mark, or to references, inserting it into a programme, in return for payment or other consideration;
S. 4 article 2, paragraphs 2 and 3 of the Act, the words "broadcasting organizations" are replaced by the words "media service providers", and the words 'sound and television broadcasting programmes', by 'media sound and television services.
S. 5. an article 2/1, as follows shall be inserted in the Act: «art.» 2/1. § 1. Within the meaning of article 2, paragraphs 2 and 3, a media services provider is deemed established in the bilingual region of Brussels-capital in the following cases: a) the media service provider has its head office in the bilingual region of Brussels-capital and editorial decisions on the audiovisual media service are taken in the said region;
(b) where a media service provider has its head office in a Member State of the European Union outside the bilingual region of Brussels-capital, and editorial decisions on the audiovisual media service are taken in that other Member State, it shall be deemed to be established in the bilingual Brussels-capital region if a significant part of the workforce involved in audiovisual media service activity operates in that region. If a significant part of the workforce involved in the activities of the audiovisual media services operates in that region and in the other Member State, the media service provider shall be deemed to be established in the bilingual Brussels-capital region has its headquarters.
When a significant part of the workforce involved in audiovisual media service activity operates in that region or in another Member State, the media service provider shall be deemed to be established in the bilingual region of Brussels-capital if it has lawfully started its activities, and provided that it maintains a stable and effective economic link with the said region.
(c) where a media service provider has its head office in a Member State of the European Union, but decisions on the audiovisual media service are taken in a third country, or vice-versa, it shall be deemed to be established in the bilingual Brussels-capital region if a significant part of the workforce involved in audiovisual media service activity operates in that region.

§ 2. This Act is applicable to service providers of media not referred to in paragraph 1, which are not exclusively the competence of the French community and the Flemish community, and: has) that use an uplink to a satellite located in the bilingual region of Brussels-capital; ((or b) which, although not using not an uplink to a satellite located in the bilingual Brussels-capital region, use a satellite capacity appertaining to that region, or c) which are established in the bilingual region of Brussels-capital, within the meaning of articles 49 to 55 of the Treaty on the functioning of the European Union, provided that they are not subject to the points) a and b) of paragraph 2 above.
§ 3. This Act does not apply to audiovisual media services exclusively intended for reception in countries third and which are not received directly or indirectly by means of standard equipment by the public of the bilingual region of Brussels-capital. ».
S. 6. article 3 of the same Act is supplemented by points 6 ° and 7 °, worded as follows: «6 ° Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 on the coordination of certain laws, regulations

or administrative action in Member States concerning the pursuit of television broadcasting activities;
7 ° directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions legislative, regulatory and administrative action in Member States concerning the provision of audiovisual media services ('Audiovisual Media Services' Directive). ».
S.
7. the title of chapter II of the Act is amended as follows: "electronic communications networks, electronic communications services and audiovisual media services.
S.
8. article 13 of the Act is replaced because what follows: «art.» 13 § 1.
For the purpose to preserve the pluralistic and cultural diversity of the offer of television programs on the networks of electronic communications in the bilingual region of Brussels-capital and ensure viewers in this area access to television programmes which they are intended, the operator shall, as long as a significant number of people use its network as primary means of receiving television programmes and the appropriate complementary services, transmit in digital mode and, if appropriate, analog, at the time of their release and in their entirety:-all of the television programmes broadcast by public service television broadcasting bodies within the French community and the Flemish community;
-all or part of the television programmes broadcast by any other body of television broadcasting, the competent Minister designated according to the procedure described in the following paragraphs.
In this paragraph, is meant inter alia by complementary services: subtitling, audio description and sign language and videotext.
§ 2. The competent Minister designate in accordance with the procedure described in paragraphs 3 to 6, as beneficiaries of the right to mandatory distribution:-international bodies of television broadcasting involving the broadcasters of public service within the communities French or Flemish, for all or part of their programs to viewers in the bilingual region of Brussels-capital;
-local, community or regional televisions under the French and Flemish, communities for all or part of their programs including emissions are specially intended for viewers in the bilingual region of Brussels-capital.
§ 3. The mandatory distribution right is granted for a term of two years, from the date of publication in the Moniteur belge of the list television broadcasting organizations and their programs benefiting said right.

§ 4. The television broadcasting organization that wishes to benefit from the right to mandatory for all or part of its programs applied by registered letter with acknowledgement of receipt to the competent Minister and the Institute.
§ 5. The request must be made before 1 July of the current year. For the following terms, the application must be lodged between the ninth and sixth months before the expiry of the current term.

§ 6. The Institute has three months to make to the Minister a notice motivated on the legality and the opportunity to right the application received by the television broadcasting body.
§ 7. The expiry of this period of three months, the competent Minister has a period of two months to notify to the applicant its decision whether to grant the right to compulsory broadcast.
In the absence of notification on the part of the competent Minister within the period referred to in the preceding paragraph, its decision is deemed positive.
§ 8. On the advice of the Institute, the Minister may exempt an operator from the obligation to distribute all or part of the television programmes if it is technically impossible to distribute all or part of the programmes benefiting from the right to mandatory distribution. The operator wishing to obtain an exemption address a reasoned application to the Institute.
The Institute communicates its opinion to the Minister no later than six weeks after the receipt of the application, unless the Institute requires additional information on the part of the applicant. In this case, this period shall be suspended until receipt of the information requested.
The Minister shall notify its decision about the exemption within fifteen days following the expiry of the period provided for in the preceding paragraph.
§ 9. The list of television broadcasting and their programs with mandatory distribution organizations is published in the Moniteur belge, no later than February 1 following.
§ 10. For the designation of the television programmes referred to in the second indent of § 1, it is necessary to take into account the following criteria of general interest:-television channels ensure, by their programs, the daily dissemination of information logs;
-they contribute through their programs to the development of culture in the audiovisual sector by participating in the production and purchase of Belgian and European audiovisual works. » Art. 9. article 18 of the same Act, is restored as follows: «art.» 18. media services providers offer to the recipients of the service easy, seamless, and permanent access to the following information: a) the name of the media service provider;
b) the geographic address at which the media service provider is established;
c) the details of service provider of media, including his electronic mail address or website, which allow quickly into contact with him in a way direct and efficient;
d) where applicable, the competent regulatory or supervisory bodies. ».
S. 10 § 1. The title of chapter III of the Act is amended as follows: 'pursuit of sound and audiovisual media service provider.
§ 2. The title of the first section of chapter III of the Act is amended as follows: "authorization for the pursuit of sound and audiovisual media service provider.
S. 11 article 28/1 of the Act, the words "broadcasting organizations" are replaced by "media service providers", and the words "a sound or television broadcasting program" by one or more media services sound or audio-visual.
S. 12 article 28/2 of the Act, the words "broadcasting organizations" are replaced by "media service providers" and the words "their program of sound or television broadcasting' by 'their sound or audiovisual media services".
S. 13A article 28/3 of the Act, the following amendments are made: 1 ° to the 1st subparagraph of the first paragraph, the words "broadcasting organizations" are replaced by "media service providers";
2 ° to the 1st paragraph, point 1 °, 'of the broadcasting organization"shall be replaced by 'of the media service provider";
3 ° to the 1st paragraph, point 2 °, 'the programme of sound or television broadcasting in question' shall be replaced by 'their sound or audiovisual media services ";
4 paragraph 1 °, 8 °, 9 °, points written as follows, shall be inserted: "8 ° the obligation to make the services they offer, gradually accessible to persons with Visual or auditory, deficiencies, within a maximum period of five years;
9 ° the obligation to develop of codes of conduct regarding inappropriate audiovisual commercial communication, accompanying or included in these programs children's programs, and concerning foodstuffs or beverages containing nutrients and substances with a nutritional or physiological effect including those such as fat, fatty acids, salt/sodium and sugars, whose presence in excessive in the overall diet are not recommended. »;
5 ° to paragraphs 2 and 3, "broadcasting organization" shall be replaced by 'media service provider', and the words 'the programme of sound or television broadcasting' by 'the sound or audiovisual media service ";
6 ° in paragraph 4, "broadcasting organization" shall be replaced by the words 'media service provider', and the words 'the programme of sound or television broadcasting' by 'the sound or audiovisual media service.
S. 14. in article 28/4 of the Act, including the current text form paragraph 1, is inserted a § 2 worded as follows: "broadcasters can provide audiovisual media services scheduled that may seriously harm the physical, mental or moral development of minors in conditions such as minors cannot normally hear or see such demand audiovisual media services. The King determines these conditions. ».
S. 15 article 28/6 of the same Act, the words "broadcasting organizations" are replaced by "media service providers".
S. 16A article 28/8 of the Act, the following amendments are made: 1 ° "broadcasting organization" shall be replaced by "media service provider";
2 ° "sound or television broadcasting program" shall be replaced by 'program or media service ";
3 ° to paragraph 2, in fine, the words "including sound or television broadcasting program" are repealed.
S.

17A article 28/9 of the Act, the following amendments are made: 1 ° 1st paragraph is repealed;
2 °, paragraph 2 is replaced by the following: "§ § 2 2» The broadcasters exercise their exclusive rights so as to not deprive a significant part of the public of another Member State of the possibility of following wholly or partially live or, if necessary or appropriate for objective reasons of general interest, fully or partly deferred, on a free television, the events than that other Member State has designated as events of major importance. The King determines the modalities that the broadcasters must meet for this purpose."
S. 18. an article 28/10, as follows, is inserted into the Act: «art.» 28/10. § 1.
For the production of short news reports, any television broadcasting body established in the European Union can have access, under fair, reasonable and non-discriminatory conditions to events of high interest to the public which are subject to an exclusive transmission by a television broadcasting body.
§ 2. If another television broadcasting organization established in the same Member State that the television broadcasting organisation wishing to have access has acquired the exclusive rights for the event with great interest to the public, it is the organization that access is requested.
§ 3. Such access is guaranteed by allowing the broadcasters to freely choose short extracts from the signal from the television broadcasting organisation which provides the broadcast, at least with the identification of their origin, unless this is impossible for practical reasons.

§ 4. Brief extracts are used exclusively in general news programmes and may only be operated under demand audiovisual media services only if the same programme is offered offline by the same media service provider.
§ 5.
Without prejudice to paragraphs 1 to 4, the terms and conditions relating to the provision of these brief extracts are defined by royal decree, particularly regarding financial compensation arrangements, the maximum length of the brief extracts and time limits regarding their dissemination. Where financial compensation is provided, it does not exceed the additional costs directly incurred in providing access. ».
S. 19. article 30 of the same Act is supplemented by a paragraph, as follows: 'on the advice of the Institute, the competent Minister shall inform the Commission every two years a report on the application of articles 29 and 30. This report includes a statistical survey of the achievement of the proportion referred to in articles 29 and 30 for each of the television programmes from providers of media referred to in article 2/1, § 1 and § 2, above, the reasons for which, in each case, it was not possible to attain that proportion and the measures adopted or envisaged to reach it. ».
S. 20. an article 30/1, as follows shall be inserted in the Act: «art.» 30/1. § 1.
Of audiovisual media on demand provided by providers of media promote, where practicable and by appropriate means, the production of European works and access to these services. This promotion can particularly translate into the financial contribution made by such services to the production of European works and the acquisition of rights to these works, or the part and/or the important place reserved for European works in the catalogue of programmes offered by the on-demand audiovisual media service.
§ 2. On the advice of the Institute, the competent Minister presents to the Commission, no later than the entry into force of this Act, and every four years, a report on the implementation of paragraph 1 of this provision. ».
S. (21A article 31 § 1 of the Act, the point c) is replaced by the following words: "works co-produced within the framework of agreements relating to the audiovisual sector concluded between the Union and third countries and meet the conditions defined in each of these agreements.
S. 22 section 32 of the Act, the words "broadcasting organization" are replaced by the words "media service provider".
S.
23. the title of section II of the Act is replaced by "audiovisual commercial Communications, television advertising, teleshopping, sponsorship and product placement.
S. 24 A section 33 of the Act, the following amendments are made: 1 ° 1st paragraph is replaced by the following: "§ 1.» Television advertising and teleshopping shall be readily recognizable as such and distinguishable from editorial content.
Without prejudice to the use of new advertising techniques, television advertising and teleshopping must be clearly separated from the rest of the programme by optical, acoustic and/or spatial means. »;
2 °, paragraph 2 is replaced by the following: "§ § 2 2»
Isolated advertising and teleshopping spots shall remain exceptional, except during the broadcast of sports events. ».
S. 25 A section 34 of the Act, the following amendments are made: 1 ° to paragraph 1, the words 'paragraphs 2 to 5' shall be replaced by the words 'paragraphs 2 to 4.
2 ° paragraph 3 is replaced by the following: "§ § 3 3» The transmission of films made for television (excluding series, serials and documentaries), cinematographic works and news programmes may be interrupted by television advertising and/or teleshopping once for each programmed of at least thirty minutes. The transmission of children's programmes may be interrupted by television advertising and/or teleshopping once for every programmed at least thirty minutes, provided that the scheduled duration of the programme is greater than 30 minutes. Television advertising or teleshopping may be inserted during religious services. »;
3 ° paragraph 4 is replaced by the following: "§ § 4 4» The provision referred to in paragraph 3 does not apply to television channels exclusively devoted to advertising and teleshopping, self-promotion. »;
4 ° paragraph 5 is repealed.
S. 26 A section 35 of the Act, the following amendments are made: 1 ° 'television advertising and teleshopping' shall be replaced by "audiovisual commercial communication";
2 ° the point b) is replaced by the following: "b) include discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation, nor do promote such discrimination;
S. 27 section 37 of the Act, the words 'television advertising must not' shall be replaced by "audiovisual commercial communications must not", the word "should" with "shall", and the words "it is not" by "they should not.
S.
28 A section 38 of the Act, the following amendments are made: 1 ° "television programs" shall be replaced by 'audiovisual media services or audiovisual programme', the words 'of the television broadcasting organization"by"of the media service provider ";
2 ° the point b) of paragraph 1 is replaced by the following: "b) viewers are clearly informed of the existence of a sponsorship agreement. Sponsored programmes must be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its products or services or a distinctive sign, by suitable means in the program initially, at the end or during it. ».
S. 29. article 39 of the Act is replaced because as follows: «art.» 39 § 1. With the exception of television channels exclusively devoted to advertising, teleshopping and self-promotion, the percentage of transmission time of spots of television advertising and teleshopping within a given clock hour may not exceed 20%.
§ 2. Paragraph 1 does not apply to announcements made by the television broadcasting body in relation to its own programmes and ancillary products directly derived from those programmes, sponsorship announcements and product placements.
§ 3. Teleshopping windows shall be clearly identified as such by optical and acoustic means and have a minimum uninterrupted duration of 15 minutes. ».
S. 30. an article 39/1, as follows shall be inserted in the Act: «art.» 39/1. Product placement is prohibited.
By way of derogation from paragraph 1, product placement is admissible in the following cases: a) in cinematographic works, films and series made for audiovisual media, as well as for sports programs and services entertainment;
(b) where there is no payment but only the provision, free of charge, of certain goods or services, such as accessories and production lots, for inclusion in a programme.
The derogation provided for in point a) does not apply to children's programmes.
Programs that involve the placement of product meet at least all of the following requirements: has) their content and,

in the case of television broadcasting, their programming shall in no circumstances be influenced so as to affect the responsibility and independence editorial of the media service provider;
(b) they do not stimulate directly to the purchase or rental of goods or services, including by making promotional specific references to those goods or services;
(c) they are not in front of an unjustified the product in question;
(d) viewers are clearly informed of the existence of product placement. Programmes containing product placement are identified appropriately at the beginning and at the end of their diffusion, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the Viewer.
The provision laid down in point d) is not applicable if the programme concerned has not been produced nor commissioned by the media service provider itself or a company affiliated to the media service provider. ».
S. 31 section 40 of the Act, a paragraph 4 is inserted as follows: ' ' § § 4 4 In case demand audiovisual media services, the King may take measures, either on its own initiative or on the proposal of the Institute, to suspend the transmission of a given service if the following conditions are met.
(a) the measures are: i) necessary for one of the following reasons:-public policy, in particular prevention and investigation and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred based on race, sex, religion or nationality and against attacks on the dignity of the human person , - the protection of public health, - public security, including the protection of security and national defence — the protection of consumers, including investors;
(ii) taken against an audiovisual media service scheduled which violates the objectives referred to in point i) or which presents a serious and grave hit to these objectives; risk
(iii) proportionate to those objectives.
(b) before taking these measures and without prejudice to court proceedings, including preliminary proceedings and acts performed in the context of a criminal investigation, the King has: i) asked the Member State within whose jurisdiction falls the service provider to take measures provided that the latter only took or that the measures taken by him have been adequate;
II) notified to the Commission and to the Member State within whose jurisdiction falls the service provider its intention to take such measures.

§ 5. The King may, in an emergency, derogate from the conditions stipulated in paragraph 4, point b).
In this case, the measures shall be notified as soon as possible to the European Commission and to the Member State within whose jurisdiction falls service provider, indicating the reasons why the King considers that there is urgency. The measures will be maintained that if the Commission considers that the measures taken are compatible with Community law. ».
S. 32. article 42ter of the Act is replaced by the following: 'Art.42ter. The Institute is responsible for the regulation of the audiovisual sector, in the bilingual region of Brussels-capital, institutions which are not within the competence of the Flemish community and the French community, within the meaning of article 127, § 2 of the Constitution. As such, it shall communicate to the Commission, the information required by the application of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of laws, regulations and administrative provisions of the States concerning the provision of audiovisual media services concerning the criteria of location of audiovisual media service providers , promoting the production and distribution of European works, any restrictions on the retransmission of audiovisual from other Member States media services, for reasons relating to the protection of minors and the measures taken against the broadcasters under the jurisdiction of another Member State whose television broadcasts are intended wholly or mainly to the users and viewers of the bilingual Brussels-capital region. ».
S. 33. this Act comes into force the day of its publication in the Moniteur belge.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given at Chateauneuf-de-Grasse, December 27, 2012.
ALBERT by the King: the Minister for scientific policy, P. MAGNETTE sealed with the seal of the State: to the Minister of Justice, absent: the Minister of Pensions, A. DE CROO _ Note (1) Session 2012 - 2013.
House of representatives.
Documents. -Bill, 53 2488/001.
-Amendment, 53 2488/002. -Report, 53 2488/003. -Text adopted by the commission, 53 2488/004. -Amendment, 53 2488/005.
Senate Document. - ...