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European Business Law

Television advertising is defined in Article 1(1)(i) of Directive No 2010/13 as “any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovabl …

Television advertising and teleshopping

Television advertising is defined in Article 1(1)(i) of Directive No 2010/13 as “any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations, in return for payment”. A program during which an offer is made to the public in conjunction with the display of a premium rate telephone number, to participate in a prize game by dialing that number constitutes television advertising if the goods and services offered as prizes to be won were the subject of representations or promotions intended to encourage viewers to buy those goods and services . On the other hand, advertising hoardings visible during the retransmission of bi-national sporting events taking place in other Member States cannot be qualified as television advertising insofar as they appear in the background of the pictures broadcast, in a random and unpredictable fashion according to the requirements of the retransmission and do not have any distinct character in that context . Defined independently from television advertising, “surreptitious audiovisual commercial communication” is prohibited under Article 9(1)(a) of the directive. The intentional element of surreptitious advertising may be established even where there is no payment or similar consideration to the benefit of the television broadcaster .

“Teleshopping” consists of “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” (Art.1(1)(l)). A program during which the television broadcaster offers viewers the opportunity to participate in the broadcaster's prize games by means of immediately dialing premium rate telephone numbers is only teleshopping if the game represents the actual supply of services and not merely a means of giving the program an interactive character and if the questions which the candidates are asked are connected with the promotion of goods or of services .

In order to preserve the artistic value of cinema and television film and to protect consumers and their interest in viewing quality programs, the insertion of television advertising or teleshopping during programs must not prejudice the integrity of the programs taking into account natural breaks in and the duration and the nature of the program concerned, and the rights of the right holders must not be prejudiced. Those rules are only in respect of television broadcasts: on-demand audiovisual media services are not subject to them. Article 20(2) of the directive provides for the possibility for commercial breaks during films made for television, cinematographic works and news programs every thirty minutes (this does not include series, serials and documentaries) provided that the scheduled duration of the program is greater than 30 minutes, with the exception of religious services. Although Directive No 2010/13 no longer fixes a minimum period between interruptions during the transmission of films, Article 23(1) limits to 20% the proportion of television advertising spots  and teleshopping spots within a given clock hour . The Court of Justice has specified that sponsor signs broadcast in the context of TV programs other than the sponsored program must be included in the maximum time for the broadcasting of advertising per clock hour pursuant to Article 23 of the directive . In addition, the Article requires “black seconds” which are inserted between the various spots of a television advertising break or between that break and the television program which follows it, to be included in the 20% maximum time for the broadcasting of television advertising per clock hour . The transmission of children’s programs may be interrupted by television advertising  once for each scheduled period of at least 30 minutes, provided that the scheduled duration of the program is greater than 30 minutes. No television advertising or teleshopping is permitted during religious services.  (Article 20(2)).

Article 19 of the directive provides that television advertising and teleshopping must be readily recognizable and distinguishable from editorial content. To ensure this is the case, they must be “kept quite distinct from other parts of the program by optical and/or acoustic and/or spatial means”. According to the Court of Justice, national legislation may provide for a split screen that shows the closing credits of a television program in one column and a list presenting the supplier’s upcoming program in the other, in order to separate the program which is ending from the television advertising break that follows it, does not necessarily have to be combined with, or followed by, an acoustic or optical signal, provided that such a means of separation enables the viewer to identify the advertisement and the program as such .

Teleshopping windows must be clearly identified as such and must be of a minimum uninterrupted duration of fifteen minutes. Under the 1989 Directive, for films to fall into the series categories and thus be subject to more frequent commercial breaks, there had to be a link between the different programs from the point of view of their content or their action such as the development of the same story or the reappearance of one or more characters . Furthermore, even though according to the directive the calculation of the number of advertising interruptions authorized was based on the “gross principle” which included the duration of advertisements in the period of time in relation to which the permissible number of interruptions is calculated, Member States were also free to use the net principle according to which only the duration of the films themselves is to be included . 

Under Article 4(1) of Directive No 2010/13, the Member States may provide for more detailed or stricter rules in the fields coordinated by the directive applicable to media service providers under  their jurisdiction. In application of that provision, national legislation may prohibit television broadcasters from inserting in their programs broadcast throughout the national territory television advertising whose broadcasting is limited to a regional level, provided that it is suitable for securing  the attainment of the objective of protecting media pluralism at regional and local level which it pursues, does not go beyond what is necessary to attain that objective and does not give rise to unequal treatment between national television broadcasters and internet advertising  providers as regards the broadcasting of advertising at regional level .

Case C-195/06 Kommunikationsbehörde Austria v Österreichischer Rundfunk [2007] ECR I-8817, LawLex200900001051JBJ.

Case C-429/02 Bacardi France v TF1 [2004] ECR I-6613, LawLex200900000742JBJ.

Case C-245/01 RTL Television v Niedersächsische Landesmedienanstalt für privaten Rundfunk [2003] ECR I-12489, LawLex200900000918JBJ.

Case C-6/98 Arbeitsgemeinschaft Deutscher Rundfunkanstalten v PRO Sieben Media [1999] ECR I-7599, LawLex200700001673JBJ.

Case C-555/19 Fussl Modestrasse GmnH, Judgment of 3 February 2021,.

In effect, although the provision of payment or of consideration of another kind is decisive for establishing the intentional nature of surreptitious advertising, it is not a necessary condition for establishing the element of intent: Case C-52/10 Eleftheri tileorasi AE "Alter Channel" [2011] ECR I-4973, LawLex201100001075JBJ.

Case C-195/06 Kommunikationsbehörde Austria v Österreichischer Rundfunk [2007] cited above.

The Court of Justice inteprets broadly the concept of television advertising spots for which the broadcasting time is limited by the directive: it includes advertorials, telepromotions, sponsorship credits and micro-ads, see Case C-281/09 Commission v Spain, Judgment of 24 November 2011, LawLex201200000218JBJ.

This does not apply to announcements made by the broadcaster in connection with its own programs and ancillary products directly derived from those programs.

Case C-314/14 Sanoma Media Finland Oy-Nelonen Media, Judgment of 17 February 2016, LawLex201700000002JBJ.

Case C-314/14 Sanoma Media Finland Oy-Nelonen Media, cited above. 

Since the amendment of Directive No 2010/13 by Directive No 2018/1808 of 14 November 2018 (OJ L 303 of 28 November 2018), the broadcasting of teleshopping spots during children's programs is now prohibited.

European Business Law

144. Television advertising and teleshopping

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144. Television advertising and teleshopping

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise