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PR(03)25: EFTA Surveillance Authority confirms compatibility of Norwegian ban on certain cross-border television broadcasts with EEA law


On 8 October 2003, the EFTA Surveillance Authority delivered a decision pursuant to Article 2a(2) of the Television without Frontiers Directive 89/552/EEC confirming the compatibility with EEA law of measures taken by Norway which restrict retransmission of certain pornographic television programmes in digital cable TV networks held to be in contravention of the Norwegian Penal Code. The prohibition concerns broadcasts of three different pay-TV channels based in Sweden.

The Television without Frontiers Directive 89/552/EEC, as amended by Directive 97/36/EC, requires the EEA States to ensure freedom of reception and not to restrict retransmission on their territory of television broadcasts emanating from another EEA State. The Directive institutes the principle of home state control over broadcasters. It provides, however, for an exception to these principles where a television broadcast from another EEA State “might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence.” The alleged violation needs to be manifest, serious and grave and several other conditions must be fulfilled before any such derogating measures may be taken by the receiving state. In the same vein, the Directive requires the Authority to evaluate the compatibility with EEA law of the measures notifed by an EFTA State.

On 25 June 2003, the Norwegian Mass Media Authority decided to prohibit retransmission of pornographic programmes on the Swedish television channels Canal+ Gul, Canal+ Blå and TV1000 in Norwegian digital cable TV networks judged to be in contravention of Section 204 of the General Civil Penal Code. In July 2003, Norway notified the transmitting State Sweden and the Authority of the decision taken by the Mass Media Authority, as required by the Directive.

In its decision the Authority noted that, in accordance with Article 22(1) of the Directive as interpreted in light of the case-law of the EFTA Court, an EEA State disposes of a wide, although not unfettered, discretion to restrict broadcast on its territory of programmes that collide with its national moral standards and that might thereby seriously impair the physical, mental or moral development of minors. The Authority concluded that the programmes prohibited by Norway do not fall outside of the application of Article 22(1) of the Act and that, therefore, the prohibition in the present case must be deemed to be within the discretion which that State enjoys in this regard.

The Authority further reasoned that Article 22(1) of the Television without Frontiers Directive does not preclude an EEA State from considering that programmes prohibited under its national laws concerning pornography, in the present case Section 204 of the Norwegian General Civil Penal Code, must also be considered detrimental to the development of minors as long as the programme content falling under the national restrictions of pornography is in conformity with Article 22(1). The Authority noted in this context that whether the Norwegian legislation makes a sufficient link between the prohibition of pornography in the General Civil Penal Code and the powers of the Mass Media Authority to restrict retransmissions under the Broadcasting Act in the present case is a matter of interpretation of national law.

The Authority concluded that the measures taken by Norway do not discriminate on grounds of nationality, are proportionate to the objective to protect minors and are, although limited in their effectiveness, not unsuitable for the purpose of achieving the desired aim.

The EFTA Surveillance Authority concluded, therefore, that the measures notified by Norway in the present case are compatible with EEA law.

For further information please contact Mr Tor Arne Solberg-Johansen (+32)(0)2 286 18 66.

8   October 2003

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