IRIS newsletter 2021-1
European Audiovisual Observatory
76, allée de la Robertsau
Tel. : +33 (0) 3 90 21 60 00
Fax : +33 (0) 3 90 21 60 19
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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 • Marco Polo Sarl • Nathalie Sturlèse • Brigitte Auel • 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
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2021 European Audiovisual Observatory, Strasbourg (France)
According to Mark Twain, “History doesn’t repeat itself - but it often rhymes.”
Whenever I think about the dreadful year that has just left the stage, I like to look back a hundred years. In 1920, the world was still suffering from a deadly pandemic, the so-called Spanish Flu. Not only was it a much more dangerous virus than SARS-CoV-2, but the world was also far less prepared to confront it. And yet, humanity got through it.
But look what happened next.
The decade that followed earned the nickname of "the Roaring Twenties" because it was a period of extraordinary economic and cultural development. It was not only the beginning of both the Hollywood Golden Age and the Jazz Age, but also the period when a second Industrial Revolution brought spectacular technical innovations and scientific advances.
Let’s hope that "history rhymes" indeed.
On behalf of the entire team of the European Audiovisual Observatory, I wish you a healthy and successful 2021!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Şık v. Turkey (No. 2) and Sabuncu and others v. Turkey
In one of the numerous cases brought against Turkey in relation to the right to freedom of expression and the rights of journalists, the European Court of Human Rights (ECtHR) found that the arbitrary pre-trial detention of an investigative journalist had violated the European Convention on Human Rights (ECHR). In Şık v. Turkey, the ECtHR found that a series of articles published on the website of Cumhuriyet, in the newspaper’s print edition, and in items posted on social media from the journalist’s Twitter account, had produced no sufficient basis for a reasonable suspicion that the...
EU: Advocate General
CJEU Advocate General finds regional advertising ban compatible with EU law
In his opinion of 15 October 2020 in Case C-555/19 (Fussl Modestraße Mayr), Maciej Szpunar, Advocate General at the Court of Justice of the European Union (CJEU), discussed whether the German law prohibiting the regional transmission of advertising on television programmes authorised for the entire country was compatible with EU law. He concluded that, although European law did not prevent such a restriction in principle, it was necessary to examine, in view of the freedom to provide services, whether there were any less restrictive measures that the German legislator could introduce in order...
EU: European Commission
European Commission opens infringement procedures against 23 member states for failing to transpose the revised AVMSD 2018
On 23 November 2020, the European Commission announced that it had launched infringement procedures against 23 EU member states and the United Kingdom for failing to transpose the revised Audiovisual Media Services Directive 2018 (AVMS Directive) (see IRIS 2019-1/3) into national law. The revised AVMS Directive was enacted in November 2018, and under Article 2, EU member states were required to incorporate the Directive into national law by 21 September 2020, and to notify the Commission of the text of the main provisions of national law which was adopted. However, the Commission stated that as...
The EU-UK Trade and Cooperation Agreement
On 31 January 2020, the United Kingdom left the European Union and entered a transition period while it negotiated its future relationship with the European Union. Almost a year later, on 24 December 2020, the European Commission and the United Kingdom reached a deal on a EU-UK Trade and Cooperation Agreement (TCA), which defines the terms of their future cooperation. On 29 December 2020 the Council of the European Union adopted by written procedure the decision on the signing of the agreement and its provisional application as of 1 January 2021 until 28 February 2021, pending the consent...
[AM] Audiovisual Statute introduced
On 5 August 2020, the President of the Republic of Armenia signed into law the statute “On Audiovisual media”, adopted on 16 July 2020 by the National Assembly (the parliament). The new statute invalidates the Law on Television and Radio of 9 October 2000 (IRIS 2001-2:1/9). It takes as a model the AVMSD of the European Union. The new statute regulates the governance, financing and remit of the national public broadcaster; the formation and powers of the independent audiovisual media regulator (Commission on Television and Radio); the notification procedures for the “authorisation”...
[BE] CSA study on audiovisual consumption in French-speaking Belgium
On 15 December 2020, the Belgian Conseil supérieur de l’audiovisuel (regulatory authority for the audiovisual sector of the French-speaking Community of Belgium – CSA) published a new study entitled Médias: Attitudes et Perceptions (Media: Attitudes and Perceptions – MAP). The study analyses the different ways in which audiovisual media services are used in French-speaking Belgium. More specifically, it aims to discover how the emergence of new forms of audiovisual consumption is changing television usage. It is the first study of this magnitude to be conducted in...
[BG] Legislative proposals for promoting the local film industry, including 25% cash rebates for eligible costs for production aid
On 18 November 2020, Министерски съвет (the Bulgarian Council of Ministers, also referred to as the Government) adopted a decision concerning the approval of Законопроект за изменение и допълнение на Закона за филмовата индустрия (Bill to amend and supplement the Film Industry Act – FIA). The Bill envisages various incentives for the promotion of the local film industry, including a new cash rebate aid scheme for the production of audiovisual works, in accordance with Regulation (EU) No. 651/2014. The Government is also expected to propose secondary legislation following...
[DE] Berlin regional court rules on film revenue information rights
In a judgment of 27 October 2020 (Case no. 15 O 296/18), the Landgericht Berlin (Berlin regional court – LG) decided that a screenplay writer was entitled to information about the revenue generated from the exploitation of film productions so she could demand an adjustment to her remuneration for use of her screenplays. The dispute between the screenplay writer on the one hand and the production company that owned the rights to two well-known German films and a film and media group on the other concerned the right to further equitable remuneration as enshrined in Article 32a of the German...
[DE] Bill on strengthening consumer protection in competition and trade law
On 4 November 2020, the German Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection – BMJV) published a bill on strengthening consumer protection in competition and trade law. The Entwurf einer Novelle des Gesetzes gegen den unlauteren Wettbewerb (Bill amending the Unfair Competition Act – UWG-E) is particularly designed to implement Directive (EU) 2019/2161 as regards the better enforcement and modernisation of Union consumer protection rules. It should improve consumer protection against unfair business practices, in particular...
[DE] Draft copyright reform bill for Germany
On 13 October 2020, the German Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection – BMJV) published a bill to adapt copyright law to the requirements of the digital single market. The bill mainly contains proposals for the implementation of Directive (EU) 2019/790 on Copyright in the Digital Single Market (DSM Directive) and Directive (EU) 2019/789 (the Satellite and Cable Directive, or SatCab Directive). In particular, the bill contains a proposal for a Urheberrechts-Diensteanbieter-Gesetz (Copyright Service Provider Act –...
[DE] New German State Media Treaty enters into force
On 7 November 2020, the new Medienstaatsvertrag (State Media Treaty – MStV) entered into force in Germany, replacing the previous Rundfunkstaatsvertrag (State Broadcasting Treaty). The treaty not only transposes the revised Audiovisual Media Services Directive (AVMSD), amended under Directive (EU) 2018/1808, into national legislation, but also addresses other elements of the German media system in the context of a changing media landscape. In particular, it contains provisions on the findability and prominence of digital channels that are applicable to media platforms, user interfaces and...
[DE] Online gaming platform’s youth protection system approved
In October 2020, the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) confirmed the decision of the Freiwillige Selbstkontrolle Multimedia-Diensteanbieter e.V. (voluntary self-monitoring body for multimedia service providers – FSM) that the MagentaGaming gaming platform’s youth protection system meets the requirements of the Jugendmedienschutz-Staatsvertrag (state treaty on the protection of minors in the media - JMStV) of the German Länder. The KJM concluded that the FSM had not exceeded its discretionary power by approving...
[ES] First Draft Law on Audiovisual Communication
On 6 November, the Ministry of Economic Affairs and Digital Transformation made public a Draft Law on Audiovisual Communication (Anteproyecto de Ley General de la Comunicación Audiovisual) with the aim of transposing the European Union's amended Audiovisual Media Services Directive and updating the regulation of the sector so that there is a level playing field for all competing agents. The draft is open to public information and consultation until 3 December and, once approved, will substitute the current Law 7/2010 on Audiovisual Communication. The main changes proposed in relation...
[FR] CSA publishes extensive study on the distribution of fake news on Twitter
Under the Act on the fight against the manipulation of information of 22 December 2018, the French national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA) was given new powers in this area. The CSA therefore wished to learn more about the mechanisms used to spread fake news, a problem exacerbated by the COVID-19 pandemic, by commissioning a specific study of the Twitter social network. The data required for the study was collected using Twitter’s open API (interface), which can be used to collect the Tweets posted from an account, statistics specific...
[FR] Court rejects former Numéro 23 owner’s CSA compensation claim
In a ruling of 12 November 2020, the Paris administrative court rejected a request from the former owner of the channel Numéro 23, who was claiming EUR 20.2 million in compensation from the French national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA). The DTT channel, now owned by the NextRadioTV group and renamed RMC Story, had been sanctioned by the CSA in 2015, when its broadcasting licence had been withdrawn and its sale to NextRadioTV blocked on the grounds of fraudulent speculation. This sanction had been overturned by the Conseil d’Etat...
[FR] Media chronology: health crisis prompts new film release window derogation
The decision taken to close cinemas on 30 October on public health grounds brought a halt to film screenings in cinemas. In order to protect producers and distributors, and to enable the public to continue watching the films available at the time, a decree was issued on 27 November 2020 shortening by up to four weeks the four-month period before works can be released on VOD or DVD/Blu-Ray under Article 231-1 of the Cinema and Animated Images Code. A similar measure had been taken under the emergency law passed on 23 March 2020 in response to the COVID-19 epidemic, after cinemas had been ordered...
[GB] BBC Introduces Guidance on Individual Use of Social Media
The BBC has introduced guidance on how BBC representatives should use social media, whether for their work or in a personal capacity. The Social Media Guidance (Guidance) is to be read in conjunction with the BBC’s Editorial Guidance on impartiality. The Guidance is to help preserve the BBC’s reputation for impartiality, as well as to promote compliance with both its own and Ofcom's editorial guidelines. The BBC and its representatives have an obligation to ensure that the BBC’s editorial decisions are not perceived to be influenced by any personal interest or bias. The...
[HR] New Law on Electronic Media (proposal no. 62) sent to Parliament
The new Law on Electronic Media was officially presented before the Croatian Parliament in November 2020 and is scheduled to be discussed in a first reading before the end of this year. This will be the seventh change in the law; it was first adopted in 2003 and amended in 2007, 2008, 2009 (twice), 2011, and 2013. Prior to 2003, the audiovisual sector was included in the Law on Telecommunications (first adopted in 1994, amended twice in 1999 and twice in 2001, with subsequent changes ceasing to encompass the content-producing media industry). The 2003 law created the Agency for Electronic...
[IE] Broadcasting Authority announces details of Sponsorship Scheme 2021
On 19 November 2020, the Broadcasting Authority of Ireland (BAI) announced details of its Sponsorship Scheme 2021, with funding of up to EUR 150 000 available for applicants to support a range of activities during 2021. The BAI’s annual Sponsorship Scheme “makes funding available for media- related activities and events that support the BAI’s strategic objectives and help to raise awareness of its work.” The Authority considers and agrees the events and activities to be funded each year. Under the Sponsorship Scheme, applicants are invited to submit a proposal for one-off...
[IE] Broadcasting Authority launches online Media Ownership database
On 11 November 2020, the Broadcasting Authority of Ireland (BAI) launched a new website that provides information about the ownership and shareholdings of Irish media companies. The website provides “a structured and searchable reference database of media businesses that serve Irish audiences.” The project forms part of the BAI’s commitment to promoting media plurality, in line with the provisions in the Broadcasting Act 2009 and the Competition and Consumer Protection Act 2014. The media outlets included in the database “comprise national and local newspapers, radio stations,...
[IT] First green light for the transposition of the AVMSD in Italy
On 29 October 2020, the Senate of the Italian Republic approved the text of the 2019 European Delegation Law, a legislative instrument by which the parliament delegates powers to the government to transpose EU directives into the Italian legal system. Following its approval by the other parliamentary chamber (the Camera), which is expected by the end of 2020, the text will become binding, leading the way for the long-awaited process of transposing the previous year's EU legislation. The 2019 European Delegation Law refers to 38 European directives, including Directive 2018/1808 (AVMSD)....
[IT] New proposal to reform the governance of the Italian public service broadcaster
On 15 October 2020, Andrea Orlando, a member of the Chamber of Deputies and former Minister of Justice, introduced to Parliament a new bill (No. 2723) which aims to amend the parts of the Audiovisual Media Services Code (Legislative Decree No. 177 of 31 July 2005) which regulate Italian public service broadcasting (namely RAI). The proposed measures are intended to reform specifically the governance of the public service broadcaster. The most important aspect of the reform lies with the introduction of an ad-hoc foundation: the Ministry of the Economy and Finance shall transfer to the newly-established...
[LT] Constitutional Court confirms that funding the national broadcaster through a fixed percentage from the state budget is in line with the Constitution
The case was initiated by Lietuvos Vyriausybė (the Government of the Republic of Lithuania) when it applied to Konstitucinis Teismas (the Constitutional Court of the Republic of Lithuania - the Court) requesting a constitutional investigation into whether certain provisions of the laws regulating the financing of certain programmes, funds or institutions are in conformity with the Constitution of the Republic of Lithuanian (the Constitution). Among other laws, the Law on the National Radio and Television (Lietuvos Respublikos Lietuvos nacionalinio radijo ir televizijos įstatymas) was questioned...
[LT] Supreme Court finds that using filmed footage of an offence in a television show was not sufficient to justify the restriction of a person’s right to privacy and protection of image
The right to privacy is one of the fundamental human rights. As a general rule, a person cannot be filmed, recorded or photographed without their consent. However, these prohibitions do not apply to the recording of violations of the law, and private information and images may be published without a person’s consent in cases where it helps to reveal violations of the law or criminal offences. Taking into account this legal framework, the national broadcaster had a popular weekly show that was produced together with Lietuvos Policija (the Police), whereby a cameraman followed and recorded...
[LV] Amendments to the Electronic Mass Media Law adopted for the transposition of the AVMSD
On 17 November 2020, new amendments to the Latvian Electronic Mass Media Law (EMML) implementing the amended Audiovisual Media Services Directive (AVMSD) were announced. The amendments to the EMML have been developed to transpose the AVMSD and to adapt the regulatory framework to the audiovisual and media environment, which has changed rapidly and significantly over the last decade due to digitalisation and globalisation. Firstly, the EMML has been supplemented by the clarification of existing definitions or the addition of new definitions for services or service providers. The definition...
[LV] The Public Electronic Media and their Management Law adopted
On 19 November 2020, the Public Electronic Media and their Management Law (PEMML) was adopted; for the first time in Latvian media regulation, the supervision of public and commercial electronic media will be dealt with separately. The PEMML is a product of lengthy discussions among various stakeholders. Among other things, it provides for a new procedure to appoint the public media board and editor-in-chief, as well as establishing an ombudsman. The PEMML aims to ensure the efficient and transparent management, independence and accountability of public media; it also sets out the strategic...
[NL] Dutch Court annuls GDPR fine imposed on streaming platform VoetbalTV for distributing sports content to large audiences
On 23 November 2020, the District Court of Midden-Nederland (Rechtbank Midden-Nederland - the Court) annulled the decision of the Dutch Data Protection Authority (Autoriteit Persoonsgegevens - DDPA) to impose a EUR 575 000 administrative fine on VoetbalTV, a streaming platform for amateur football. Most importantly, the Court found that the DDPA had erred, ruling that the commercial processing of personal data does not categorically exclude a legitimate interest in that processing under the General Data Protection Regulation (Algemene Verordening Gegevensbescherming - GDPR). Following a regulatory...
[NL] Media Act amended to incorporate the revised AVSM Directive 2018
On 1 November 2020, new legislation amending the Media Act 2008 (Mediawet 2008) came into effect, transposing the European Union’s revised Audiovisual Media Services Directive 2018 (AVMS Directive) (see IRIS 2019-1/3) into Dutch law. The revised AVMS Directive was enacted in November 2018, and under Article 2, EU member states were required to incorporate the Directive into national law by 21 September 2020. The revised AVMS Directive contained a range of new rules, including more flexibility in television advertising, increased obligations to promote European works for on-demand services...
[PT] Portugal transposes the Audiovisual Media Services Directive
On 19 November 2020, Law No. 74/2020 was published in the Diário da República (Official Gazette); this new law transposes the Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 to the internal legal order, amending Law Nº 27/2007 of 30 July, which approves the Law on Television and Audiovisual Services on Demand, and Law 55/2012 of 6 September on the promotion, development and protection of cinema and cinematographic and audiovisual activities and works. In line with European Directive 2018/1808, the Portuguese Parliament...
[RO] Rules for the 2020 parliamentary elections campaign coverage
On 21 October 2020, the Consiliul Naţional al Audiovizualului (National Audiovisual Council) adopted the Decision on the rules for the audiovisual campaign for the election of the Senate and the Chamber of Deputies in 2020, which is scheduled for 6 December 2020 (see, inter alia, IRIS 2009-1/29, IRIS 2009-10/24, IRIS 2011-3/29, IRIS 2011-9/31, IRIS 2012-6/30, IRIS 2014-5/27, IRIS 2014-10/30, IRIS 2016-10/25, IRIS 2019-5/23, IRIS 2019-6/21, IRIS 2019-9/22, and IRIS 2020-8/20). According to Article 3 (1), the campaign must serve the following general interests: a) of the electorate, to receive...
[RO] State aid scheme for the cultural sector
On 18 November 2020, the Government of Romania approved a Memorandum for the elaboration of a state aid scheme to support the cultural sector by allocating grants to cultural operators affected by the COVID-19 pandemic in order to help them resume their activity (see, inter alia, IRIS 2011-2/5, IRIS 2018-8/37, IRIS 2019-2/22, IRIS 2019-4/28, IRIS 2020-5/30, IRIS 2020-6/4, IRIS 2020-7/12, and IRIS 2020-8/19). The state aid scheme has a ceiling of EUR 100 million. Following a new series of discussions with representatives of Romanian artists, the Romanian Deputy Prime Minister, Raluca Turcan,...
[RU] Rules on labelling “foreign media agents” enforced
On 23 September 2020, Roskomnadzor, the Russian governmental supervisory authority in media and communications (see IRIS 2012-8/36), issued a decree that approved the standard text and procedure for publishing the imprint of a registered media outlet founded with the participation of a Russian legal entity that performs the functions of a “foreign agent” (see IRIS 2020-1/6). This was a requirement of Article 27 of the Statute of the Russian Federation “On the Mass Media” (О средствах массовой информации), as amended on 2 December 2019. The decree was duly registered by the...
[SI] Update on the third draft AVMS law and the establishment of a European Audiovisual Production Fund
On 6 July 2020, the Slovenian Ministry of Culture ( Ministrstvo za kulturo) published a draft proposal for amending the Law on Audiovisual Media Services (see IRIS 2020-9/12). A first consultation closed in August, and the Ministry of Culture re-drafted sections of the law and extended the consultation on the draft until 2 October 2020. The second version of the law was withdrawn on 25 October and a third version sent on 27 October for inter-ministerial consultation, which was due to end on 9 November. Since then, there has been no news about the procedure. An important aspect of the...
United States of America
[US] Sheet Music v. Sounds: Led Zeppelin case reminds us of copyright technicalities
The copyright infringement case brought against Led Zeppelin reached its final conclusion in October 2020, as the United States Supreme Court declined the opportunity to hear an appeal of the Ninth District Federal Appeals Court in California. Accordingly, the ruling in favour of Led Zeppelin in Michael Skidmore v. Led Zeppelin et al., Case no. 16-56057 (9th Cir., March 9, 2020) holds as good law, likely much to the relief of record labels and well-known artists alike. In the Skidmore v. Led Zeppelin litigation, the question before the court was whether the opening notes of Led Zeppelin’s...