IRIS newsletter 2020-3

Publisher:

European Audiovisual Observatory
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Executive Director: Susanne Nikoltchev

Editorial Board:

Maja Cappello, Editor • Francisco Javier Cabrera Blázquez, Sophie Valais, Julio Talavera Milla,  Deputy Editors (European Audiovisual Observatory)

Artemiza-Tatiana Chisca , Media Division of the Directorate of Human Rights of the Council of Europe, Strasbourg (France) • Mark D. Cole, Institute of European Media Law (EMR), Saarbrücken (Germany) • Bernhard Hofstötter, DG Connect of the European Commission, Brussels (Belgium) • Tarlach McGonagle, Institute for Information Law (IViR) at the University of Amsterdam (The Netherlands) • Andrei Richter, Central European University (Hungary)

Council to the Editorial Board: Amélie Blocman, Legipresse

Documentation/Press Contact: Alison Hindhaugh

Tel.: +33 (0)3 90 21 60 10

E-mail: alison.hindhaugh@coe.int

Translations:

Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Paul Green • Marco Polo Sarl • Nathalie Sturlèse •  Erwin Rohwer • Sonja Schmidt • Ulrike Welsch

Corrections:

Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Julio Talavera Milla • Aurélie Courtinat • Barbara Grokenberger • Jackie McLelland

Distribution: Nathalie Fundone, European Audiovisual Observatory

Tel.: +33 (0)3 90 21 60 06

E-mail: nathalie.fundone@coe.int

Web Design:

Coordination: Cyril Chaboisseau, European Audiovisual Observatory
ISSN 2078-6158

© 2020 European Audiovisual Observatory, Strasbourg (France)

Editorial

“I can do it, I have the right to do it, it is the right thing to do” - any adult person knows that these are three different things. And yet, the lines that divide these three sentences seem blurred when it comes to the online activities of Internet users. In theory, the law should provide answers to all those questions, but the application of the law to a concrete case is often a tricky business, and even the most obvious cases can become the subject matter of harsh judicial wrangling up to the highest courts. For example, a recent judgment of the ECtHR on hate speech and incitement to violence also had to deal with the failure on the part of public authorities to investigate the case. It is also true that the veil of anonymity that certain Internet platforms draw over their users does not lighten the courts’ burden. By way of example, a German court of law had to amend its own (heavily criticised by legal experts) decision in a defamation case concerning a well-known German politician’s request for information about anonymous users who had insulted her on Facebook.

It is understandable that regular citizens do not know every paragraph of every law applicable to a concrete case. However, even seasoned professionals in the media business happen to have difficulties in interpreting legal rules correctly. And even when they have the law on their side, very often, professionals have to go from court to court in order to ascertain their rights. This point is illustrated by the fact that the French INA had to go all the way to the CJEU and the national Cour de cassation to bring an end to a major dispute concerning the INA’s exploitation of performers’ performances.

Regulators can provide assistance in understanding applicable rules. For instance, the Belgian regulator CSA has published a guidance note on the fight against certain forms of illegal Internet content, in particular hate speech. But in the end, it is up to the legislator to find the rules that fight wrongs without impinging on citizen’s rights, an exercise that is not without its traps, as shown in Germany, where the Federal Ministry of Justice and Consumer Protection has announced a controversial bill designed to combat right-wing extremism and hate speech on the Internet, which, among other things, tightens certain provisions of the Network Enforcement Act.

You will find all this and much more in our electronic pages.

Enjoy your read!

 

Maja Cappello, editor

European Audiovisual Observatory

International

COUNCIL OF EUROPE

The Grand Chamber of the European Court of Human Rights (ECtHR) has confirmed the conclusion of the chamber judgment in the case Magyar Kétfarkú Kutya Párt v. Hungary (23 January 2018, see IRIS 2018-3/2). The case concerns the use and promotion by a political party of a mobile application (app) which allowed voters to anonymously share photographs of their ballot papers. The Grand Chamber found that a fine for distributing the app had violated the political party’s right to freedom of expression because the interference with the applicant’s right was not ‘prescribed...

In a case about hate speech against homosexuals on Facebook, the European Court of Human Rights (ECtHR) delivered an important and well-documented judgment (61 pages). The ECtHR found that the Lithuanian authorities have violated the European Convention on Human Rights (ECHR) because they had not fulfilled their positive obligations to protect the targeted persons against discrimination (Article 14) and against breach of their privacy (Article 8). The ECtHR also came to the conclusion that Lithuania has not effectively responded to the applicants’ complaints of discrimination on account of...

The European Court of Human Rights (ECtHR) has clarified some characteristics of what is to be considered as ‘responsible journalism’ and it has explained the reasons for limiting the right to freedom of expression and journalistic reporting on the occasion of a series of news stories covering an incident where a police officer fell out of a moving trolleybus while on his way to work. The ECtHR found that some parts of the reporting on TV by a Ukrainian broadcasting company failed to act in line with the tenets of responsible journalism, while other parts of the TV-coverage of the incident...

EUROPEAN UNION

On 31 January 2020, the European Commission published a Summary Report of a targeted consultation that was conducted concerning the exercise of rights of performers and producers in the audiovisual sector. The purpose of the consultation was to gather relevant information and data on the exploitation of rights in the audiovisual market in relation to the term of protection, including on the exploitation of audiovisual works over time. The consultation was held from 29 July to 31 December 2019, and was addressed to those engaged in the management of rights in the audiovisual sector. The Report...

NATIONAL

On 6 February 2020, the audiovisual regulator of the French-speaking community of Belgium (Conseil supérieur de l’audiovisuel – CSA) published a guidance note on the fight against certain forms of illegal Internet content, in particular hate speech. This note is designed to open a public debate on the measures that could be taken at national level to lay the foundation for co-regulation with online content-sharing platforms and cooperation with the other Belgian authorities concerned.  In the note, the CSA begins by summarising the current situation, highlighting the...

In October 2019, the Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection) announced a bill designed to combat right-wing extremism and hate speech on the Internet (IRIS 2020-1:1/9). The Entwurf für ein Gesetz zur Bekämpfung des Rechtsextremismus und der Hasskriminalität (Draft Act to combat right-wing extremism and hate crime) was published on 18 December 2019. Among other things, the bill tightens the provisions of the Netzwerkdurchsetzungsgesetz (Network Enforcement Act – NetzDG) that require social networks to...

On 15 January 2020, the Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection) tabled a bill implementing Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market, which was adopted on 17 April last year. The bill begins by addressing the protection of press publications with regard to online uses and the contribution of publishers, which form part of the EU copyright reforms. It explains the rights of publishers of press publications, as described in Article 15 of the Directive; contains rules on text and data...

In a decision of 20 January 2020, the Verwaltungsgericht Köln (Cologne Administrative Court) submitted a number of questions to the European Court of Justice concerning the interpretation of Regulation (EU) 2015/2120 and its provisions on net neutrality. The case concerns the ‘StreamOn’ service offered by the German mobile operator Telekom Deutschland GmbH in which the data transmission rates of some video streams are throttled. ‘StreamOn’ is a so-called zero-rating service that can be added to some of the mobile operator’s tariffs free of charge. The data...

Following an appeal by a politician and on the basis of her new submissions in the appeal proceedings and the court’s additional findings, the Landgericht Berlin (Berlin District Court), in a new ruling of 21 January 2020, partly amended its original decision of 9 September 2019 (see IRIS 2019-10:1/11) on the politician’s claim against the Facebook social media platform for the publication of user data. In its original decision, the Landgericht Berlin had rejected the well-known German politician’s request for information about users who had insulted her on the grounds that the...

On 23 January 2020, the Junta Electoral Central (Central Electoral Commission – JEC) decided that the acting president of the government, in the exercise of his responsibilities as such, had also infringed Article 153.1 of the Organic Law of the General Electoral System, through the realisation and diffusion of a TV interview by taking advantage of the public means at his disposal, in his capacity as acting president of the government. The JEC also decided that the minister acting as government spokesperson, in the exercise of her responsibilities, had infringed Article 153.1 of the Organic...

What has been referred to in Spain as 'the war over football', a conflict between media corporations regarding football broadcasting rights that started in 2007 (see IRIS 2011-10:1/13), moves ahead with a new episode. On this occasion, the players are Mediapro, the company that owned those rights for many years, and the Real Federación Española de Fútbol (RFEF), the governing body of football in Spain. The Provincial Court of Madrid (Audiencia Provincial de Madrid) has sanctioned the RFEF for abuse of a dominant position. The dispute that has been taking place concerns...

In March 2019, the Altice media group, which holds the exclusive rights to broadcast football’s UEFA Champions League final, announced its intention to transmit the match live on 1 June 2019 not on RMC sport, which had shown the other matches in the competition, but free-to-air on BFM TV, which it also owned. On 3 April 2019, the national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA) warned the group that such a broadcast would not fall under any of the programme categories that the channel was authorised to show and would breach its agreement...

The Institut national de l’audiovisuel (National Audiovisual Institute – INA) was created to protect and promote the archives of French public radio and television companies. Its role was later broadened when, in 1992, it became the legal deposit library for radio and television, and then for media websites in 2006. In a ruling of 22 January 2020, the Cour de cassation (Court of Cassation) brought an end to a major dispute concerning the INA’s exploitation of performers’ performances. In the case at hand, the holders of the rights of a musician who had died in 1985...

The company that produces the terrestrial analogue radio station Radio Courtoisie asked the Caen regional audiovisual committee to renew, without a call for tender, its broadcasting licence for a specific geographical area, which was due to expire on 3 December 2018. On 27 November 2017, the regional committee rejected its request on the grounds that the company had been fined EUR 25 000 by the national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA) on 4 October 2017. The company therefore lodged an administrative appeal with the CSA, which rejected...

The Centre for Data Ethics and Innovation (CDEI) has produced its final report recommending what regulatory steps the UK Government should take to prevent harm from online targeting yet allow ethical innovation in this area. The CDEI is an independent expert committee led by a board of specialists established and tasked by the UK Government to investigate and advise on how to maximise the benefits of data-driven technologies as well as address any potential negative aspects. Data-driven online targeting is a new and powerful application of technology whereby its systems predict which content would...

On 16 January 2020, the Ministry of Justice announced plans to allow for the first time in England and Wales recordings and broadcasts from the Crown Court with the aim of increasing public engagement with the justice system. Filming is already permitted in the Supreme Court and has been since it was set up in 2009 (although this is carried out by the court itself) and the television broadcasting of Court of Appeal proceedings has been possible in specified circumstances since 2013 under the Court of Appeal (Recording and Broadcasting) Order 2013. The Crown Court (Recording and Broadcasting)...

The UK Government has responded positively to the Cairncross Review, which was published in February 2019 (see IRIS 2019-4:1/21), concerning the necessary steps to be taken in order to secure independent journalism in the wake of a shift from traditional media outlets to digital media and the proliferation of content that spreads disinformation. Eight of the nine Cairncross proposals have been accepted. Furthermore, the Secretary of State for Digital, Culture, Media and Sport (DCMS) said that the government would consider the Cairncross proposals in the context of other initiatives, including...

A meeting of the “Working Group on Gender and Media” representing nine MNRA (Mediterranean Network of Regulatory Authorities) members was held in Lisbon in February 2018, during which the author represented the Greek Regulatory Authority (NCRTV). During this session, it was agreed that all participants would adopt a common three-month period of monitoring and analysing news reports and other current affairs programmes in at least two television channels (one public and the other one commercial with a high level of viewership). The scope of this study, articulated in both...

On 30 January 2020, the Broadcasting Authority of Ireland (BAI) rejected nine complaints regarding RTÉ Investigates: Running for their Lives, a current affairs programme broadcast on RTÉ One on 26 June 2019. The investigative programme focused on welfare issues within the Irish greyhound industry and examined, in detail, the implications of an expert report, commissioned by the governing body for greyhound racing in Ireland, the Irish Greyhound Board (IGB). The programme reported that the expert report detailed that up to 6 000 dogs may be culled per year because they do not perform...

On 10 January 2020, the Minister for Communications, Climate Action and Environment, Richard Bruton TD, published the general scheme of the Online Safety and Media Regulation Bill 2019 (hereinafter ‘the Bill’). The purpose of the Bill is to create new online safety laws to bring legislation up to date with the EU Audiovisual Media Services Directive (AVMSD) which governs the EU-wide coordination of national legislation on all audiovisual media, which concerns both traditional TV broadcasts and on-demand services. The proposed Bill will establish an Online Safety Commissioner as...

On 17 January 2020, the Italian Council of Ministers approved a draft bill specifically prohibiting ambush marketing which was introduced following a proposal by the Minister of Justice, Alfonso Bonafede. The bill aims at strengthening the protection of the economic interests of companies that sponsor sports events and exhibitions of national and international relevance. The bill should introduce appropriate measures, particularly in light of the upcoming 2020 UEFA European Football Championship, with a view to preventing unauthorised economic players from associating their trademarks or products...

On 24 January 2020, the District Court of Noord-Nederlands announced that the Dutch broadcaster RTL was no longer permitted to make recordings in the court during an ongoing high-profile case. Furthermore, the court announced that RTL, with the exception of its news programme RTL Nieuws, was prohibited from making recordings for other broadcasters in the court for the next three months. The court stated that the measures were being imposed due to a programme broadcast by RTL on 21 January 2020.     The issue arose in a case currently before the court, known as the Ruinerwold case,...

In its judgment of 20 December 2019, the Rechtbank Amsterdam (District Court of Amsterdam) delivered an important judgment on tabloid journalism in the Netherlands, ruling that media outlet TMG did not have to remove a sensationalist, online article on a well-known singer’s alleged adultery with a television host – the claimant – in 2014. The district court held that the media outlet’s freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights (ECHR), outweighed the television host’s right to privacy, as enshrined in Article 8 ECHR...

The Romanian Government has allocated EUR 1.58 million to four de minimis aid schemes in the field of cinema. On 20 January 2020, the government approved a memorandum extending the validity of the de minimis aid schemes, which are administered by the Centrul Naţional al Cinematografiei (National Cinematography Center – CNC) (see IRIS 2004-2/35, IRIS 2011-2/5 and IRIS 2018-2/29). The memorandum includes a de minimis aid scheme for participation in domestic and international film festivals and fairs; a de minimis aid scheme for the distribution and exploitation of Romanian films of all kinds;...

WTO/WIPO

On 28 January 2020, Indonesia became the 30th contracting party to ratify the Beijing Treaty on Audiovisual Performances, allowing the Treaty to enter into force on 28 April 2020, in accordance with Article 26. It has been signed by 88 states, including 22 EU member states and the European Union (to date, Slovakia is the only EU member state to ratify it).   The Treaty was adopted in Beijing at a Diplomatic Conference of the World Intellectual Property Organisation (WIPO) (see IRIS 2012-8/1), after more than ten years of negotiations (see IRIS 2001-2/1 and IRIS 2011-8/1), notably...