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27 DECEMBER 2012. - An Act to amend the Act of 30 March 1995 concerning Electronic Communications and Electronic Communications Networks and the exercise 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 adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. The title of the Act of 30 March 1995 concerning electronic communications networks and electronic communications services and the exercise of broadcasting activities in the bilingual region of Brussels-Capital is replaced by the following title: "Act of 30 March 1995 concerning electronic communications networks and services, and audio-visual media services in the bilingual region of Brussels-Capital".
Art. 3. Article 1^er the Act of 30 March 1995 concerning electronic communications networks and electronic communications services and the exercise of broadcasting activities in the bilingual region of Brussels-Capital, as amended by the Acts of 8 July 2001, 12 May 2003, 22 December 2003 and 16 March 2007, is amended as follows:
1° 1 point 3/1, as follows, is inserted:
"3/1."Audiovisual media service": a service that falls under the editorial responsibility of a media service provider and whose main purpose is to provide programs to inform, entertain or educate the general public through electronic communications networks. An audio-visual media service is either a television broadcast within the meaning of item 3/2 of this article, or an audio-visual media service on demand within the meaning of item 3/3 of this article, and/or an audio-visual commercial communication; »;
2° a point 3/2, as follows, is inserted:
"3/2. "TV broadcasting": or "TV broadcast": a linear audiovisual media service provided by a media service provider for simultaneous viewing of programs based on a program grid; »;
3° a point 3/3, as follows, is inserted:
"3/3. "audio-visual media service on demand": a non-linear audio-visual media service provided by a media service provider for the viewing of programs at the time selected by the user and on individual demand based on a catalogue of programs selected by the media service provider; »;
4° point 5 is replaced by the following:
« 5. "program": a set of animated images, combined or not with sound, forming a single element within the framework of a grid or catalog established by a media service provider and whose form and content are comparable to that of television broadcasting. A program is, for example, a feature film, a sports event, a stage comedy, a documentary, a children's program or an original fiction; »;
6° point 6/1 is replaced by the following:
« ;6/1. "Media Service Provider": the physical or legal person who assumes the editorial responsibility for the choice of audio or audiovisual content of the audio or audiovisual media service and who determines how it is organized; »;
7° a point 6/2, as follows, is inserted:
“6/2. "TV broadcasting organization": a television broadcasting media service provider; »;
8° Item 6/3, as follows, is inserted:
"6/3. "editory responsibility": the exercise of effective control over the selection of programs and their organization, either on a chronological grid, in the case of television programs, or on a catalogue, in the case of audiovisual media services on demand. Editorial responsibility does not necessarily have any legal liability under national law with respect to the content or services provided; »;
9° in point 7, the words "TV broadcast program" are replaced by "audiovisual media service";
10° in point 8, the words "sound and television broadcasting programs" are replaced by "sound and audiovisual media service";
11° in point 9, the words "TV broadcast program" were replaced by "audiovisual media service";
12° a point 9/1, as follows, is inserted:
"9/1. "audiovisual commercial communication": images, combined or not with sound, which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person who carries on an economic activity. These images accompany a program or are inserted for payment or other consideration, or for self-promotion purposes. Audiovisual commercial communication includes the following forms: television advertising, sponsorship, tele-purchase and product placement; »;
At point 11, the word "advertising" is replaced by the words "audiovisual commercial communication".
14° point 12 is replaced by the following:
“12. "sponsoring": any contribution from a public or private enterprise or a natural person, not carrying out activities as a provider of media services or the production of audiovisual works, to the financing of audiovisual media services or programs, with the aim of promoting its name, brand, image, activities or products; »;
15° at point 14, the words "of the broadcasting organization" are replaced by "the audiovisual media service provider".
16° a point 13/1, as follows, is inserted:
"13/1."Product placement": any form of audio-visual commercial communication consisting of including or referring to a product, service or brand, by placing it in a program, for payment or other consideration; "
Art. 4. In section 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 programs", by "sound and television media services".
Art. 5. Article 2/1, as follows, is inserted in the same law:
"Art. 2/1. § 1^er. As defined in section 2, paragraphs 2 and 3, a media service provider is deemed to be 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 audio-visual media services are taken in that 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 that editorial decisions relating to audiovisual media services are taken in that other Member State, it is deemed to be established in the bilingual region of Brussels-Capital if a significant part of the staff employed in audiovisual media services operates in that region. When a significant portion of the workforce employed in the audiovisual media services operates in the region and in the other Member State, the media service provider is deemed to be established in the bilingual region of Brussels-Capital if there is its head office; where a significant portion of the workforce employed in audio-visual media services does not operate in the region or in the other Member State, the media service provider is deemed to be established in the bilingual region of Brussels-Capital if the activity has been legally commenced, and provided that it maintains a stable and real economic link with the region;
(c) where a media service provider has its head office in a Member State of the European Union, but decisions on audio-visual media services are made in a third country, or vice versa, it is deemed to be established in the bilingual region of Brussels-Capital if an important part of the staff employed in audio-visual media services operates in that region.
§ 2. This Act applies to media service providers not referred to in paragraph 1^er, not exclusively within the competence of the French Community or the Flemish Community, and
(a) using an uplink to a satellite located in the bilingual Brussels-Capital region; or
(b) that, although not using a rising link to a satellite located in the bilingual region of Brussels-Capital, use satellite capacity in that region, or
(c) that are established in the bilingual region of Brussels-Capital, as defined in Articles 49 to 55 of the Treaty on the Functioning of the European Union, provided that they are not covered by paragraphs 2 (a) and (b).
§ 3. This Act does not apply to audio-visual media services exclusively intended to be captured in third countries and which are not received directly or indirectly by means of standard equipment by the public in the bilingual region of Brussels-Capital. "
Art. 6. Section 3 of the Act is supplemented by items 6° and 7°, as follows:
"6° Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 on the coordination of certain legislative, regulatory and administrative provisions of the Member States relating to the exercise of television broadcasting activities;
7° Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 on the coordination of certain legislative, regulatory and administrative provisions of the Member States concerning the provision of audiovisual media services (Directive "Audiovisual media services"). "
Art. 7. The title of Chapter II of the Act is amended as follows:
"Electronic communications networks, electronic communications services and audiovisual media services."
Art. 8. Section 13 of the Act is replaced because:
“Art. 13. § 1^er. In order to preserve the pluralistic nature and cultural diversity of the offer of television programs on the electronic communications networks of the bilingual region of Brussels-Capital, and to guarantee the access of the viewers of this region to the television programs that are intended for them, the operator must, as long as a significant number of people use its network as the primary means of receiving television programmes and, where appropriate, to transmit, in digital and digital mode
- all television programmes broadcast by the television broadcasters of public service under the French Community or the Flemish Community;
- all or part of the television programs broadcast by any other television broadcasting organization that the appropriate minister designates, as described in the following paragraphs.
This paragraph includes additional services: captioning, audio description, sign language and videotext.
§ 2. The competent minister shall designate, in accordance with the procedure described in paragraphs 3 to 6, as beneficiaries of the mandatory distribution right:
- the international television broadcasting organizations involved in the public service television broadcasting organizations of the French and Flemish Communities, for all or part of their programs for viewers in the bilingual region of Brussels-Capital;
- local, community or regional televisions belonging to the French and Flemish Communities, for all or part of their programs whose programs are specially designed for viewers in the bilingual region of Brussels-Capital.
§ 3. Compulsory distribution is granted for a term of two years, from the date of publication to
Belgian currency
the list of television broadcasting organizations and their programs entitled to that right.
§ 4. The television broadcasting organization that wishes to benefit from the mandatory distribution right for all or part of its programs shall apply by registered letter with acknowledgement of receipt to the competent minister and to the Institute.
§ 5. The application must be filed before 1^er July of the current year. For the following terms, the application must be filed between the ninth and sixth months before the end of the current term.
§ 6. The Institute has a three-month period to provide the appropriate Minister with a reasoned opinion on the legality and the opportunity to apply to the television broadcasting organization.
§ 7. Upon the expiry of this three-month period, the competent minister shall have a two-month period to notify the applicant of the decision to grant or not the mandatory right to broadcast.
In the absence of notification from the competent minister within the period referred to in the preceding paragraph, the decision is deemed positive.
§ 8. The Minister may, on the advice of the Institute, exempt an operator from the obligation to distribute all or part of the television programs if it is technically impossible to distribute all or part of the programs entitled to mandatory distribution. The operator who wishes to benefit from this exemption addresses a reasoned request to the Institute.
The Institute shall notify the Minister no later than six weeks after receiving the application, unless the Institute requires additional information from the applicant. In this case, this period is suspended until the requested information is received.
The Minister shall notify the Minister of its decision regarding the exemption within fifteen days of the deadline set out in the preceding paragraph.
§ 9. The list of television broadcasting organizations and their programs that benefit from mandatory distribution is published in
Belgian currency
, no later than 1^er Next February.
§ 10. For the designation of television programmes referred to in the second draw of § 1^er, the following general interest criteria should be taken into account:
- television channels provide, through their programs, the daily broadcast of information newspapers;
- they contribute by their programmes to the development of culture in the audiovisual sector by participating in the production and purchase of Belgian and European audiovisual works. »
Art. 9. Section 18 of the Act is reinstated as follows:
“Art. 18. Media service providers provide service recipients with easy, direct and permanent access to the following information:
(a) the name of the media service provider;
(b) the geographic address to which the media service provider is established;
(c) the contact information of the media service provider, including its e-mail address or website, allowing for rapid contact with the media provider in a direct and effective manner;
(d) where appropriate, the competent regulatory or supervisory bodies. "
Art. 10. § 1^er. The title of Chapter III of the same Act is amended to read: "Exercising of audio and audiovisual media service providers."
§ 2. Section 1 of Chapter III of the Act is amended as follows: "Authorization for the exercise of audio and audiovisual media service providers."
Art. 11. In section 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 audio-visual media services".
Art. 12. In section 28/2 of the Act, the words "broadcasting organizations" are replaced by "media service providers", and the words "their audio or television broadcasting program" by "their audio or audiovisual media services".
Art. 13. In section 28/3 of the Act, the following amendments are made:
1st paragraph 1^er, the words "broadcasting organizations" are replaced by "media service providers";
2° in paragraph 1^er, point 1°, the words "of the broadcasting organization" are replaced by "the media service provider";
3° in paragraph 1^er, point 2°, the words "the audio or television broadcasting program in question" are replaced by "their audio or audiovisual media services";
4° in paragraph 1^er, points 8° and 9°, as follows, are inserted:
"8° the obligation to render the services they offer, progressively accessible to persons with visual or hearing impairments, within a maximum of five years;
9° the obligation to develop ethical codes relating to inappropriate commercial audiovisual communication, accompanying or included children's programmes, and concerning foodstuffs or beverages containing nutrients or substances that have a nutritional or physiological effect, including those such as fats, fatty acids, salt/sodium and sugars, whose presence in excess quantities in the overall diet is not recommended. »;
5° in paragraphs 2 and 3, the words "the broadcasting organization" are replaced by "the media service provider", and the words "the audio or television broadcasting program" by "the audio or audiovisual media service";
6° in paragraph 4, the words "broadcasting organization" are replaced by the words "media service provider", and the words "the sound or television broadcasting program" by "the audio or audiovisual media service".
Art. 14. Article 28/4 of the Act, the current text of which will form paragraph 1^er, is inserted a § 2 written as follows: "Broadcasting organizations may not offer audio-visual media services at the request that could seriously affect the physical, mental or moral development of minors only under conditions such as minors may not normally hear or see these audio-visual media services at the request. The King determines these conditions. "
Art. 15. In section 28/6 of the Act, the words "broadcasting organizations" are replaced by "media service providers".
Art. 16. In section 28/8 of the Act, the following amendments are made:
1° the words "the broadcasting organization" are replaced by "the media service provider";
2° the words "sound or television broadcasting program" are replaced by "media program or service";
3° in paragraph 2,
in fine
, the words "whose broadcasting program was part of" are repealed.
Art. 17. In section 28/9 of the Act, the following amendments are made:
1° paragraph 1^er is repealed;
Paragraph 2 is replaced by the following:
Ҥ2. Television broadcasting organizations exercise their exclusive rights so as not to deprive an important part of the public of another Member State of the possibility to monitor fully or partially live or, if necessary or appropriate for objective reasons of general interest, wholly or partially deferred, on an open-access television, the events that this other Member State has designated as major events. The King shall determine the terms and conditions to be followed by television broadcasting organizations for this purpose. "
Art. 18. Section 28/10, as follows, is inserted in the same law:
"Art. 28/10. § 1^er. For the purpose of carrying out brief news reports, any television broadcasting organization established in the European Union may have access, in fair, reasonable and non-discriminatory conditions, to events of great interest to the public that are the subject of an exclusive transmission by a television broadcasting organization.
§ 2. If another television broadcasting organization established in the same Member State as the television broadcasting organization wishing to have access has acquired exclusive rights for the event of great public interest, it is for that organization that access is requested.
§ 3. Such access is guaranteed by allowing television broadcasting organizations to freely choose their short extracts from the signal of the television broadcasting organization that ensures the broadcast, at a minimum with the indication of their origin, unless this is impossible for practical reasons.
§ 4. Short excerpts are used exclusively in general news programs and can only be used as part of audiovisual media services on demand if the same program is offered as a postponement by the same media service provider.
§ 5. Without prejudice to paragraphs 1 to 4, the terms and conditions for the provision of these short extracts are defined by Royal Decree, in particular with regard to the terms of financial compensation, the maximum length of the short extracts and the deadlines for their dissemination. When a financial compensation is provided, it does not exceed the additional costs directly caused by the provision of access. "
Art. 19. Section 30 of the Act is supplemented by a paragraph, which reads as follows:
"In the opinion of the Institute, the competent minister communicates to the European Commission every two years a report on the application of sections 29 and 30. This report includes a statistical survey of the realization of the proportion referred to in articles 29 and 30 for each of the television programs from the media service providers referred to in article 2/1, § 1^er and § 2 above, the reasons why, in each case, it was not possible to achieve this proportion, as well as the measures adopted or envisaged to achieve it. "
Art. 20. Article 30/1, as follows, is inserted in the same law:
"Art. 30/1. § 1^er. Audiovisual media services on demand provided by media service providers promote, where feasible and by appropriate means, the production of European works and access to them. This promotion can include the financial contribution made by these services to the production of European works and the acquisition of rights for these works, or the large part and/or place reserved for European works in the catalogue of programmes proposed by the audiovisual media service on demand.
§ 2. In the opinion of the Institute, the competent minister submits to the European Commission, no later than the coming into force of this Act, and every four years, a report on the implementation of subsection 1^er of this provision. "
Art. 21. Article 31, § 1^er of the same law, point (c) is replaced by the following words: "Co-produced works in the framework of agreements concerning the audiovisual sector between the Union and third countries and meeting the conditions defined in each of these agreements".
Art. 22. In section 32 of the Act, the words "broadcasting agency" are replaced by the words "media service provider".
Art. 23. The title of section II of the Act is replaced by "audiovisual commercial communications, television advertising, tele-purchase, sponsorship and product placement".
Art. 24. In section 33 of the Act, the following amendments are made:
1° paragraph 1^er is replaced by the following:
« § 1^er. Television advertising and tele-purchase must be easily identifiable as such and be distinguished from editorial content. Without prejudice to the use of new advertising techniques, television advertising and tele-purchase must be clearly separated from the rest of the program by optical, acoustic and/or space means. »;
Paragraph 2 is replaced by the following:
Ҥ2. Insulated advertising and tele-purchasing spots must remain exceptional, except during the broadcast of sports events. "
Art. 25. In section 34 of the Act, the following amendments are made:
1° in paragraph 1^erthe words "paragraphs 2 to 5" are replaced by the words "paragraphs 2 to 4";
2° Paragraph 3 is replaced by the following:
“§3. The broadcast of films designed for television (excluding series, soaps and documentaries), film works and television newspapers can be interrupted by television advertising and/or tele-purchase once per scheduled 30 minutes at least. The broadcast of children ' s programs can be interrupted by television advertising and/or tele-purchase once per scheduled 30 minutes at least, provided that the programme duration is more than 30 minutes. Television advertising or tele-purchase cannot be inserted during the broadcast of religious services. »;
Paragraph 4 is replaced by the following:
“§4. The provision referred to in subsection 3 does not apply to television channels devoted exclusively to advertising, tele-purchasing, and self-promotion. »;
Paragraph 5 is repealed.
Art. 26. In section 35 of the Act, the following amendments are made:
1° the words "TV advertising and tele-purchase" are replaced by "audiovisual commercial communications";
2° (b) is replaced by the following:
"(b) include discrimination on the basis of sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation, or promote such discrimination; "
Art. 27. In section 37 of the Act, the words "TV advertising must not" are replaced by "audiovisual commercial communications must not," the word "should" by "should", and the words "it must not" by "they must not".
Art. 28. In section 38 of the Act, the following amendments are made:
1° the words "TV programs" are replaced by "audiovisual media services or audiovisual programs", the words "of the television broadcasting organization" by "the media service provider";
2° paragraph 1 (b)^er is replaced by the following:
"(b) viewers are clearly informed of the existence of a sponsorship agreement. Sponsored programs must be clearly identified as such by the name, logo and/or other sponsor symbol, e.g. by reference to its products or services or a distinctive sign, in a manner appropriate to the program at the beginning, end or during the program. "
Art. 29. Section 39 of the Act is replaced because:
“Art. 39. § 1^er. Except for television channels devoted exclusively to advertising, tele-purchasing and self-promotion, the percentage of broadcast time for television and tele-purchasing spots within a clock hour may not exceed 20%.
§ 2. Paragraph 1^er does not apply to messages broadcast by the television broadcasting organization with respect to its own programs and related products directly derived from these programs, sponsorship announcements and product placements.
§ 3. The purchase windows must be clearly identified as such by optical and acoustic means and have a minimum uninterrupted duration of fifteen minutes. "
Art. 30. Article 39/1, as follows, is inserted in the same law:
"Art. 39/1. Product placement is prohibited.
Derogation from paragraph 1^erthe product placement is eligible in the following cases:
(a) in film, film and series for audiovisual media services, as well as sports and entertainment programmes;
(b) where there is no payment but only the provision, free of charge, of certain goods or services, such as production accessories and lots, for inclusion in a program.
The derogation under (a) does not apply to children's programs.
Programs with product placement meet at least all of the following requirements:
(a) their content and, in the case of television broadcasting, their programming shall in no way be influenced in such a way as to undermine the responsibilities and editorial independence of the media service provider;
(b) they do not directly encourage the purchase or rental of goods or services, including by making promotional references specific to these products or services;
(c) they do not unwarranted the product in question;
(d) viewers are clearly informed of the existence of a product placement. Programs with product placement are appropriately identified at the beginning and end of their distribution, as well as when a program resumes after an advertisement interruption, in order to avoid confusion on the part of the viewer.
The provision referred to in point (d) is not applicable if the program concerned has not been produced or ordered by the media service provider itself or a company affiliated with the media service provider. "
Art. 31. In section 40 of the Act, a paragraph 4 is inserted as follows:
Ҥ4. With respect to audiovisual media services on demand, the King may take measures, either on his own initiative or on the Institute's proposal, to suspend the transmission of a particular service, if the following conditions are met.
(a) The measures are:
(i) required for one of the following reasons:
- the public order, in particular the prevention and investigation and prosecution of criminal offences, including the protection of minors and the fight against incitement to hatred based on race, sex, religion or nationality and against violations of the dignity of the human person,
- the protection of public health,
- public security, including the protection of national security and defence,
- consumer protection, including investors;
(ii) taken against a demand-driven audio-visual media service that violates the objectives set out in (i) or presents a serious and serious risk of achieving these objectives;
(iii) proportionate to these objectives.
(b) Before taking these measures and without prejudice to judicial proceedings, including pre-contentious proceedings and acts carried out in a criminal investigation, the King has:
(i) asked the member State of the jurisdiction of which the service provider is responsible for taking measures provided that the service provider has not taken or that the measures taken by the service provider have not been adequate;
(ii) notified to the European Commission and the Member State of the competence of which the service provider is responsible for its intention to take such measures.
§ 5. The King may, in the event of an emergency, waive the conditions set out in paragraph 4, item (b). In this case, the measures are notified as soon as possible to the European Commission and to the Member State of the jurisdiction of which the service provider reports, indicating the reasons why the King considers that there is an emergency. The measures will be maintained only if the European Commission considers that the measures taken are consistent with Community law. "
Art. 32. Section 42ter of the Act is replaced by the following:
"Art.42ter. The Institute is responsible for regulating the audiovisual sector, in the bilingual region of Brussels-Capital, with respect to institutions that do not fall within the competence of the Flemish Community or the French Community, within the meaning of Article 127, § 2 of the Constitution. As such, it shall communicate to the European Commission, the information required by the application of the Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 aimed at the coordination of certain legislative, regulatory and administrative provisions of the Member States relating to the provision of audiovisual media services, with regard to the criteria for the localization of audiovisual media providers, the promotion of the production and distribution of European works, the possible restrictions to the broadcasters "
Art. 33. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, December 27, 2012.
ALBERT
By the King:
Minister of Science Policy,
P. MAGNETTE
Seal of the state seal:
For the Minister of Justice, absent:
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. - ...