IRIS newsletter 2020-2
European Audiovisual Observatory
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Executive Director: Susanne Nikoltchev
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
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Paul Green • Katherine Parsons • Marco Polo Sarl • Nathalie Sturlèse • Erwin Rohwer • Sonja Schmidt • Ulrike Welsch
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Julio Talavera Milla • Aurélie Courtinat • Barbara Grokenberger • Jackie McLelland • James Drake
Distribution: Nathalie Fundone, European Audiovisual Observatory
Tel.: +33 (0)3 90 21 60 06
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2020 European Audiovisual Observatory, Strasbourg (France)
In 1927, the Austrian writer Stefan Zweig published Sternstunden der Menschheit, a book that tells the story of twelve major historical events in which, in the words of the author, "everything is condensed into a single moment that determines everything and decides everything." In its almost thirty years of existence, the European Audiovisual Observatory has been a privileged witness to the evolution of the European audiovisual sector and has therefore experienced first-hand some of these "determining" moments for the sector, in particular the advent of the Internet, VOD, social networks and the multiplication of portable screens.
The recent reform of the Audiovisual Media Services Directive (AVMSD) was a response to some of the regulatory challenges raised by those “determining” moments. Now the time has come for legislators and regulators to roll up their sleeves and work on its transposition into national law.
Germany and France seem to be the forerunners in the race to transpose the AVMSD. On 5 December 2019, the Ministerpräsidentenkonferenz (Conference of Minister-Presidents) of the Bundesländer agreed a draft inter-state agreement to modernise media regulation in Germany. These new regulations, which replace the Inter-State Broadcasting Agreement, are designed to ensure that the legislative framework takes into account media digitalisation, in particular platforms and streaming services. After the parliaments of the German Länder give their approval, the new rules will enter into force in September 2020. France is also discussing a wide-ranging new draft law on audiovisual communication and cultural sovereignty in the digital age which is expected to be examined by parliament from spring onwards.
While legislation on the AVMSD is being amended, the courts of justice continue to apply and interpret applicable law in this and other sectors. For example, we report on the Turkish Constitutional Court's judgment concerning the blocking of Wikipedia and on the opinion of the Advocate General of the CJEU concerning Data Protection Commissioner v. Facebook Ireland Limited (Schrems II), which concerns the use of standard contractual clauses to transfer and process personal data outside of the European Union.
You will find all this and much more in our electronic pages.
Enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Tagiyev and Huseynov v. Azerbaijan
The European Court of Human Rights (ECtHR) has delivered an important judgment about the conviction and imprisonment of a journalist and an editor for publishing an article critizing Islam. The judgment is to be situated in a series of judgments by the Strasbourg Court dealing with religious insult, religious hate speech or blasphemy, such as in Otto-Preminger-Institut v. Austria (IRIS 1995-1/1), Wingrove v. the United Kingdom (IRIS 1997-1/8), I.A. v. Turkey (IRIS 2005-10/3), Klein v. Slovakia (IRIS 2007-1/1) Giniewski v. France (2006-4/1), Aydin Tatlav v. Turkey (IRIS 2006-7/2), Fouad Belkacem...
Eurimages: Amendment of current support regulations for 2020/21
The Board of Management of Eurimages has made a number of changes to the current Eurimages support regulations, most of which will enter into force in 2020, with more to follow in 2021. Eurimages is the Council of Europe’s cultural fund which, with an annual budget of EUR 26 million, runs five support programmes devoted to film co-production, theatrical distribution, exhibition, promotion and gender equality. In 2020, a set of exclusion criteria will be included in a new declaration that production company owners and/or managers will be required to complete in order to apply for...
CoE: Parliamentary Assembly
Resolution on media education in the “new media” environment
On 29 November 2019, the Parliamentary Assembly of the Council of Europe adopted a Resolution on media education in the new media environment. The Resolution firstly notes some of the benefits of digitisation, in particular emphasising that online media enables access to a wider range of information and thus facilitates open and participatory democracy. The Resolution goes on to note some of the risks associated with online media, citing issues such as hate speech, incitement to violence, disinformation and propaganda. After stressing the need to protect the right to be properly informed, the...
European Court of Human Rights: Pavel Zarubin a.o. v. Lithuania
A recent decision of the European Court of Human Rights (ECtHR) deals with the complaint of a team of four Russian TV journalists who were expelled from Lithuania and banned from re-entering it because they posed a danger to national security. The ECtHR came to the conclusion that the Lithuanian authorities credibly demonstrated that the expulsion and re-entry ban imposed on the Russian journalists were proportionate and necessary in the interests of Lithuania’s national security. Both measures were held not to be in breach of the journalists' right to freedom of expression as guaranteed...
European Court of Human Rights: Savenko (Limonov) v. Russia
In a case concerning the defamation of the Mayor of Moscow, Savenko (Limonov) v. Russia, the European Court of Human Rights (ECtHR) found that the Russian Federation has violated the applicant’s freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). The (alleged) defamatory statements where uttered during a debate on radio and published on the radio station’s website. The ECtHR disagreed with the assessment by the Moscow courts that in a case of defamation the suffering of the elected head of the executive had a much greater value than...
Advocate General delivers Opinion in Schrems II
On 19 December 2019, Advocate General Saugmandsgaard Øe (AG) delivered his opinion in the high-profile case Data Protection Commissioner v. Facebook Ireland Limited (Schrems II), on whether the use of standard contractual clauses can constitute a valid legal basis for transferring and processing personal data outside of the European Union. The AG opined that the Court of Justice of the European Union (CJEU) should consider standard contractual clauses as a valid mechanism for the transfer of personal data abroad. Previously, in Schrems, the CJEU had declared the Commission’s ‘safe...
Broadcasting Council punished misleading advertising
The Council for Radio and TV Broadcasting of the Czech Republic issued this decision: The company BILLA, Limited, is guilty of committing an offence in violation of section 5d (2) of Act No. 40/1995 Coll., pursuant to Article (a), Regulation (EU) No. 1169/2011/EU of the European Parliament and of the Council, by making the BILLA advertisement aired on TV NOVA on 18 March 2019, from 16:16:11, as the advertisement contains misleading information on the characteristics and the nature of the 'apricot pocket' bakery product sold in the BILLA stores. The advertisement begins with the statement...
Bundesländer adopt Inter-State Media Agreement with new rules for digital platforms
On 5 December 2019, the Ministerpräsidentenkonferenz (Conference of Minister-Presidents) of the Bundesländer agreed a draft inter-state agreement to modernise media regulation in Germany, where media legislation is the responsibility of the Bundesländer. The new regulations are designed to ensure that the legislative framework takes into account media digitalisation, in particular platforms and streaming services, and replace the Inter-State Broadcasting Agreement. The new agreement puts Germany in a pioneering role in terms of the implementation of the EU Audiovisual Media Services...
German regulator opens proceedings against Twitter over pornographic content
At the end of last year, the Medienanstalt Hamburg/Schleswig-Holstein (Hamburg/Schleswig-Holstein Media Authority – MA HSH), one of the 14 media regulators of the German Bundesländer, announced that it had instigated proceedings against social networking platform Twitter on account of breaches of provisions on the protection of minors in the media. According to the MA HSH, the US-based company, whose European headquarters are in Ireland, had already been asked to improve its youth protection procedures and the MA HSH had threatened further measures, possibly involving the Irish regulator,...
KJM approves new Internet age verification method
The Kommission für Jugendmedienschutz (Committee for the protection of minors in the media – KJM) has adopted a revised version of its criteria for evaluating age verification systems. The KJM is an organ of the German regional media authorities and comprises experts from national government and the Länder. It is Germany’s central supervisory body for the protection of minors in private broadcasting and on the Internet. According to Article 4(2) of the Jugendmedienschutzstaatsvertrag (Inter-State Agreement on the protection of minors in the media – JMStV), content...
Netflix series Skylines does not infringe personality rights
In a ruling of 21 November 2019, the Oberlandesgericht Frankfurt am Main (Frankfurt am Main Regional Appeal Court) decided that the broadcasting of the series ‘Skylines’ was protected by artistic freedom. The series, which is produced in Germany, did not infringe the individual or corporate personality rights of the owner of a real-life music label called ‘Skyline Records’. The artistic depiction of the main characters’ lives and the company’s business activities was deemed to be sufficiently removed from reality. The Netflix streaming service launched the...
No copyright protection for famous Loriot film quote
The iconic phrase ‘Früher war mehr Lametta’, coined by German comedian Loriot, is not protected under copyright according to a recently published decision of the Landgericht München (Munich Regional Court – LG) of 18 July 2019, which was upheld by the Oberlandesgericht München (Munich Regional Appeal Court – OLG) on 14 August 2019. The heirs of the artist Bernhard-Viktor Christoph-Carl von Bülow, known by the pseudonym Loriot, who died in 2011, had applied for interim legal protection to prevent the sale of T-shirts and other products with the quote...
Spanish regulator CNMC fines RTVE for violating the Audiovisual Law
RTVE, the Spanish public service media corporation, has been fined by the regulator, the National Markets and Competition Commission (Comision Nacional de los Mercados y la Competencia – CNMC), for an infringement of Spanish Audiovisual Law 7/2010 (Ley General de la Comunicación Audiovisual). The illegal conduct infringed Article 43.2, which regulates the financing of public service broadcasters and stipulates that state-owned media may not engage in any form of commercial activity except as provided for by their own legal framework. In the case of RTVE, Law 8/2009 (Ley de...
Supreme Court settles battle over short extracts of football matches
On 20 December 2019, the Spanish Supreme Court settled the longstanding legal conflict between Mediaset and the National Professional Football League (LNFP) concerning their different interpretation of the right of access to football stadiums and the broadcasting of short news summaries of the matches. In September 2015, Mediaset had denounced before the Comisión Nacional de los Mercados y la Competencia (National Commission of Markets and Competition - CNMC) that the LNFP was violating its right to information by limiting its access to the stadiums. A few days later, the CNMC issued...
Validation of the remuneration scale for private copying by users of remote personal recording services
Molotov TV is a television distribution platform that provides an OTT service enabling users to copy programmes and store them in their personal ‘cloud’. Article L. 311-4 of the Intellectual Property Code, in the version adopted under the Act of 7 July 2016, states that remuneration for private copying is “paid by the broadcaster or distributor of a radio or television service [...] that provides a physical person, through remote access, with a reproduction, for private use, of works based on a programme that forms part of a linear broadcast by the broadcaster or distributor...
CSA classification of documentary programmes
The company RMC Découverte, broadcaster of the terrestrial television service of the same name, signed an agreement with the Conseil supérieur de l’audiovisuel (French national audiovisual regulatory authority – CSA) on 3 July 2012 which stipulated in Article 3-1-1 that “documentaries shall represent at least 75% of the total airtime each year and shall cover a wide variety of subjects.” Having decided that 27 programmes broadcast in 2016 did not qualify as documentaries within the meaning of its agreement, the CSA notified the company in September 2017 that...
Extensive audiovisual reform bill unveiled
The wide-ranging new draft law on audiovisual communication and cultural sovereignty in the digital age, which was announced several months ago, was tabled by the Minister of Culture on 5 December. The government has applied the expedited procedure for the document, which is expected to be examined by parliament from spring onwards. The draft contains far-reaching amendments to the Freedom of Communication Act of 30 September 1986, designed to take into account the rapidly changing nature of this sector. Firstly, it sets out a series of measures to support audiovisual creation, in particular...
Television channel met its obligations in rape complaint reports
On 14 June 2018, the television channel BFM TV broadcast two news items, each several minutes long, in which a journalist reported that a rape complaint had been filed against a lawyer and former French MP, who was an MEP at the time, as well as an interview with the complainant, who remained anonymous, and the captions “Laetitia, plaignante contre Gilbert C...” (“Laetitia, complainant against Gilbert C…”) and “C... accusé de viol, il dément” (“C…accused of rape, he denies it”). Following the broadcast, the...
ITV’s “Good Morning Britain” breached Ofcom rules by promoting a travel company during an interview
ITV’s “Good Morning Britain” programme has been held in breach of Ofcom’s Rules 9.4 and 9.5 owing to an interviewee giving undue prominence to the services of a travel company with whom she had a commercial relationship. ITV Broadcasting Limited (ITV) is responsible for compliance with Ofcom’s Code of Conduct on behalf of the licensee, ITV Breakfast Broadcasting Limited. Rule 9.4 states: “Products, services and trade marks must not be promoted in programming.” Rule 9.5 states: “No undue prominence may be given in programming to a product, service...
Community radio station found in breach of Ofcom’s offensiveness rules
On 16 December 2019, Ofcom, the United Kingdom's communications regulator, found that Radio Caroline had breached Section Two of its Code, which outlines standards for broadcast content so as to provide members of the public with adequate protection from harmful and offensive material. Radio Caroline, which was founded in 1964 and broadcast from international waters, had been rendered an illegal (pirate) station by the Marine Broadcasting Offences Act 1967, but 50 years later, in June 2017, Caroline was granted a community radio licence by Ofcom. Community radio services are provided on...
Ofcom determines Sky UK to be in breach for offensive language broadcast during cricket coverage
Sky UK Limited was held to have breached Ofcom rules 1.14 and 2.3 for the broadcast of offensive language during their cricket coverage on their temporary Sky Sports Ashes channel during the summer of 2019. There were three incidents of which two Sky was held in breach, but the third matter was deemed resolved by the regulator given the circumstances and Sky’s broadcast of an immediate apology. Ofcom’s Code of Conduct Rule 1.14 states that in the case of television ”the most offensive language must not be broadcast between the watershed [...]” Rule 2.3 of the Code...
Italian Communications Authority releases report on online platforms
On 12 December 2019, the Economic and Statistical Division (Servizio Economico Statistico) of the Italian Communications Authority released the Observatory on Digital Platforms for 2019. The document provides a comprehensive overview of the value of the digital market and of the main actors operating within it. It shows the rising role of digital platforms which hold seven out of the ten top seats of the world ranking (Microsoft, Apple, Amazon, Google, Facebook, Alibaba, Tencent). The research consists of four sections, devoted respectively to: general information; markets and services;...
Court of Appeal rules that news outlet can name individual in #MeToo reporting
In its judgment of 17 December 2019, the Court of Appeal of Arnhem-Leeuwarden (Gerechtshof Arnhem-Leeuwarden) delivered an important judgment on #MeToo reporting in the Netherlands, ruling that Dutch news outlet NRC could name an individual in an investigative report on that individual’s alleged “sexually transgressive behaviour” (seksueel grensoverschrijdend gedrag). The Court of Appeal held that given the circumstances in question, the news outlet’s freedom of expression, as guaranteed by Article 10 of the European Convention on Human Rights (ECHR), outweighed the individual’s...
Minister informs Parliament of proposed amendments to Media Act
On 19 December 2019, the Dutch Minister of Education, Culture and Science wrote a letter to parliament regarding a proposed law that would change the applicable rules for regional public broadcasters. In the letter, the minister declared that he would not submit the legislative proposal to the Dutch Parliament. In 2016, the Dutch Media Act was changed in order to create a body representing regional public broadcasters, referred to as Regionale Publieke Omroep (RPO) (see IRIS 2016-5/25). The RPO is the umbrella organisation for the 13 regional public broadcasters and is intended to function as...
Modification of Romania’s Copyright Law
Romanian President Klaus Iohannis promulgated on 9 January 2020 the Law for the modification and completion of Law no. 8/1996 on copyright and related rights (Legea nr. 8/1996 privind dreptul de autor şi drepturile conexe). The new Law no. 8/2020 was published in the Official Journal of Romania no. 14/2020, part I (see, inter alia, IRIS 2006-8/27, IRIS 2012-4/38, IRIS 2015-5/30, IRIS 2015-7/27, and IRIS 2015-8/28). The draft Law had been adopted by the Romanian Senate (the Upper Chamber of the Parliament) on 18 February 2019 and by the Chamber of Deputies (the Lower Chamber) on 11 December 2019. A...
RF Government sets the Commission on the ownership of audiovisual services
A Commission has been created in accordance with the Law on the regulation of online cinema services, adopted in 2017. The Russian Government has approved the composition of the Commission for the coordination of the ownership, management or control in relation to the owner of audiovisual services. The Vice Prime Minister Konstantin Chuichenko was appointed as Chairman of the Commission; the order was published on the Internet portal for legal information. The task of the Commission, as stated in the document, is to make decisions on the approval of the ownership, management or direct or...
Turkish Constitutional Court's Wikipedia decision
Wikipedia has not been accessible in Turkey since 2017 upon a decision given by the Information Technologies and Communication Authority (Bilgi Teknolojileri ve İletişim Kurumu - BTK) based on Article 8/A of Law No. 5651 on Regulating Broadcasting on the Internet and Fighting Against Crimes Committed through Internet Broadcasting. The procedure was initiated by the General Directorate of Security Affairs of the Prime Ministry on 28 July 2017 when it requested BTK to order Wikimedia Inc. to remove two Wikipedia articles entitled “State-Sponsored Terrorism” and “Foreign involvement...