Brussels, 09/06/2011 (Agence Europe) - “The fact that no payment is made does not mean that the intentional nature of surreptitious advertising can be ruled out.” If payment were treated as a necessary condition for establishing intention, the protection of television viewers' interests could be undermined.
With this judgment delivered in Case C-52/10 on Thursday 9 June, the Court of Justice of the EU gave its answer to the Greek Council of State which asked it to interpret the Television without Frontiers directive (89/552/EC) with regard to “surreptitious advertising”. In the directive, this is defined as “the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the broadcaster to serve advertising and might mislead the public as to its nature. Such representation is considered to be intentional in particular if it is done in return for payment or for similar consideration”. The adverbial phrase “in particular” does not appear in the Greek version of the directive. This led a dispute between the Greek National Council for Radio and Television and operators of the private television channel “Alter Channel”. In the course of a programme on Alter Channel, three sequences extolling the merits and giving the cost of a cosmetic dental treatment were presented, allowing this to be considered a form of surreptitious advertising. The question was to determine whether surreptitious advertising can be considered “intentional” when it is not remunerated.
On the ambiguity resulting from the absence of the phrase “in particular” in the Greek version, the Court noted that, in the event of disparity between the various language versions, a provision must be interpreted “by reference to the purpose and general scheme of the rules of which it forms part”. The aim of the Television without Frontiers directive is to ensure that television viewers' interests are protected.
The Court took account of this aim, too, with regard to the “intentional” nature of “surreptitious advertising”, which must be “intended by (a) broadcaster to serve advertising”. On the basis of that definition and the aim of the directive, provision of payment is indicative of an intention to advertise but is not a necessary criterion. Treating payment as a necessary condition could undermine the protection of the interests of television viewers and deprive the prohibition of surreptitious advertising of its effectiveness. (F.G./transl.rt)