Plans by Sweden to impose a ban on alcohol advertising on two UK-based broadcasters is not compatible with European law.
Previously the Myndigheten för radio och TV had asked its UK counterpart Ofcom to put pressure on the broadcasters, understood to be Viasat (TV3, TV6 and TV 8) and the Discovery-owned SBS (Kanal 5 and Kanal 9). But when the broadcasters chose to ignore the request the Swedish Consumer Agency (Konsumentverket) notifed the European Commission and the UK that it intended to take action under Article 4 of the Audiovisual Media Services Directive (AVMSD).
The Konsumentverket argued that by basing themselves in the UK the broadcasters are circumventing Swedish rules.
But the European Commission has ruled such a ban would be against the AVMSD.
“The AVMSD is based on the principle of the country of origin, according to which broadcasters are subject solely to the rules of the Member State where they are established, including when they broadcast to other EU countries,” said the Commission in a statement. “In order to impose such a ban on the UK broadcasters, Sweden should have demonstrated, under the specific procedure contained in Article 4 of the AVMS directive, that the broadcasters in question established themselves in the UK in order to circumvent such rules. The burden of proof lies with the Member State and the Commission found in this case that Sweden failed to prove circumvention on the part of the two broadcasters.”
It’s the first time the Commission has made a decision based on Article 4 of the AVMSD.
There has been a history of disagreements surrounding advertising on UK-based commercial channels aimed at the Nordic countries. TV3 itself was initially established to enable advertisers to take advantage of centre-breaks and advertising in children’s programmes that were previous barred under local legislation.
Swedish lawyers will, like so many others, be looking to the eventual outcome of Brexit and what then happens to the many UK-based channels.