IRIS newsletter 2019-2
European Audiovisual Observatory
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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)
Silvia Grundmann, 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 • Ulrike Welsch
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais et Francisco Javier Cabrera Blázquez • Aurélie Courtinat • Barbara Grokenberger • Lucy Turner • Jackie McLelland • James Drake
Distribution: Nathalie Fundone, European Audiovisual Observatory
Tel.: +33 (0)3 90 21 60 06
Coordination: Cyril Chaboisseau, European Audiovisual Observatory • Development and Integration: www.logidee.com • Layout: www.acom-europe.com and www.logidee.com
© 2019 European Audiovisual Observatory, Strasbourg (France)
Promoting European films and other audiovisual works can be quite an intricate regulatory exercise. Firstly, the works must be financed. This usually happens through a mix of public funding made up of levies and taxes imposed on the various actors in the audiovisual sector and, as a complement to state support, financial investment obligations placed on TV and VOD providers. But even this is not enough. What is the point of getting your film financed if you do not manage to get it shown to an audience? The answer to this question comes in the form of quotas and prominence obligations.
The legislative ecosystem for the promotion of European works is in constant evolution, and the present newsletter provides you with a couple of recent examples of this. In Italy, the parliament has postponed the entry into force of some modifications to the quota obligations introduced by the 2016 Reform. In Lithuania, the parliament has adopted a law on tax incentives for film production that offers the opportunity, through a private investment scheme, to save up to 30% of a film’s production budget spent in Lithuania.
These are only two examples of a nice variety of measures that exist in Europe, but this very variety makes the understanding of the whole system a rather cumbersome exercise. This is why the availability of comparative data and analysis on the different initiatives and rules in support of the promotion of European works has become crucial. We will publish a mapping report with a description of the above-mentioned existing initiatives and rules across Europe towards the end of this month, so stay tuned!
Promotion is indeed good, but (producers will agree) remuneration is better! And remuneration normally comes through copyright. In this field of law, some recent developments will certainly be of interest to our readership. After months of intense political negotiations, the Council and the European Parliament have announced that an agreement has been reached on a future Directive facilitating the licensing of copyright-protected material contained in online television and radio programmes. In Italy, AGCOM has amended the Regulation on Copyright Enforcement in Electronic Communications Networks which established an ad hoc accelerated administrative procedure, meant as a public enforcement scheme alternative to the private enforcement mechanism provided for by Italian law.
On the subject of remuneration, media windows also allow producers to organise the exploitation of their works across the entire value chain, and in this field, following in Italy’s footsteps, France has also recently modernised its rules, especially in light of new technology and market developments.
This and much more awaits you in our electronic pages!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Magyar Jeti Zrt v. Hungary
On 4 December 2018 the European Court of Human Rights (ECtHR) issued, unanimously, another landmark judgment on freedom of expression in the digital world (see also IRIS 2015-7/1, IRIS 2016-2/1, IRIS 2016-3/2, IRIS 2018-8/1 IRIS 2018-10/1). In the case of Magyar Jeti Zrt v. Hungary the ECtHR made clear that automatically holding media companies liable for defamatory content hyperlinked in their reports violates the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In its judgment the ECtHR emphasised that the very purpose of hyperlinks was to allow...
Court of Justice of the European Union: German broadcasting contribution confirmed
In a judgment of 13 December 2018 (case C-492/17), the Court of Justice of the European Union (CJEU) confirmed the broadcasting contribution used to finance public broadcasting in Germany. In the decision, the CJEU stated that the alteration to the criterion on which the contribution was based, introduced in Germany through the Rundfunkbeitragsstaatsvertrag (Inter-State Agreement on the Broadcasting Contribution - RBStV) in 2013, does not constitute an alteration to existing aid within the meaning of Article 1(c) of Council Regulation (EC) No. 659/1999, which should be notified to the Commission...
EU: European Parliament
Council of the EU: Agreement on cross-border access to online radio and television programmes
On 13 December 2018, the Council and European Parliament announced that an agreement had been reached on a future Directive facilitating the licensing of copyright-protected material contained in online television and radio programmes. In 2016, the Commission originally proposed a Regulation on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (see IRIS 2018-1/10). However, as the Council states, the “originally proposed Regulation will have to be redrafted so that it takes...
Court of Justice of the European Union: Playmédia case: CJEU replies to Conseil d’Etat’s questions on must-carry obligations
On 13 December 2018, the Court of Justice of the European Union (CJEU) delivered its replies to the questions referred for a preliminary ruling presented by the Conseil d’Etat with regard to a dispute between France Télévisions and the national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA). On 27 May 2015, the CSA served official notice on the public-sector television group, requiring it to comply in future with the provisions of Article 34(2) of Act No. 86-1067 of 30 September 1986 on freedom of communication by ceasing to oppose Playmédia’s carriage of France Télévisions’...
[DE] Damages for unauthorised YouTube footage not compulsory
In a ruling of 22 November 2018 (case no. I-4 U 140/17), the Oberlandesgericht Hamm (Hamm Regional Court of Appeal) held that the unauthorised use of a film recording of a person on the YouTube video platform only creates a right to damages if the resulting privacy breach is classified as serious. In the case at hand, a YouTube channel operator who regularly posted travel reports filmed a member of the check-in security staff at a German airport and published a two-second clip of the recording on the YouTube video platform. The clip, which showed the staff member finding the camera and briefly...
[DE] KEK report: media concentration law must be amended and adapted
On 11 December 2018, the Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media - KEK) published its sixth report on the development of concentration and measures to protect diversity of opinion in the German private broadcasting sector, entitled “Protecting Diversity of Opinion in the Digital Age”. The report, published every three years in accordance with Article 26(6) of the Rundfunkstaatsvertrag (Inter-State Broadcasting Agreement - RStV), is designed to identify concentration trends at an early stage in order to prevent television companies,...
[DE] Licence for national Sat.1 television channel is lawful but regional window obligation remains
In a decision of 29 November 2018 (cases 3 LB 19/14 and 3 LB 18/14), the third chamber of the Oberverwaltungsgericht Schleswig-Holstein (Schleswig-Holstein Administrative Court of Appeal - OVG) ruled that the licence granted to ProSiebenSat.1 TV Deutschland GmbH by the Medienanstalt Hamburg/Schleswig-Holstein (Hamburg/Schleswig-Holstein media authority - MA HSH) for the national television channel Sat.1 is lawful. However, it added that a regional television provider that holds a licence to broadcast a regional window programme in Rhineland-Palatinate and Hessen, whose right to do so was questioned...
[FI] Merger of Several Administrative Authorities
As of 1 January 2019, the Finnish Transport Safety Agency (Trafi), the Finnish Communications Regulatory Authority (FICORA) and certain functions of the Finnish Transport Agency have been merged in order to form the new Finnish Transport and Communications Agency (Traficom). Traficom will be responsible for serving people and businesses in licence-, registration- and approval-related matters. The Agency will also be entrusted with promoting the transport system and safety of traffic and ensuring that Finish citizens have access to high-quality and secure communications connections and services....
[FR] Conseil d’État confirms CSA sanction against Radio Courtoisie after broadcast of discriminatory comments
Following several comments made in 2015 and 2016 on Radio Courtoisie, a far-right radio station regularly examined by the regulator due to on-air infringements, the national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA) imposed a fine of EUR 25,000 on the company holding the license. The fine was imposed for infringing its obligations under Articles 2(4) and 2(10) of its licence of 8 February 2012, concerning incitement to racial or religious discrimination and control of the station respectively. The radio station asked the CSA to lift this sanction. As the CSA mentioned...
[FR] Conseil d’État confirms CSA’s decision to terminate Radio France president’s mandate
On 31 January 2018, the national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA) withdrew the mandate of Radio France’s president, Mathieu Gallet, following a first-instance criminal court judgment in which he was found guilty of favouritism while president of the French national audiovisual institute (Institut National de l’Audiovisuel - INA) between 2010 and 2014. The CSA judged that Mr Gallet’s criminal conviction, even though it was under appeal, meant that keeping him in post was incompatible with the smooth functioning of the public audiovisual service. Mr Gallet...
[FR] Law on manipulation of information, validated by the Constitutional Council, is published
The law on the fight against the manipulation of information, called for by the President of the Republic at the beginning of 2018, was adopted at the end of the year following a chaotic legislative process in which the Senate consistently rejected the text. After it was validated by the Constitutional Council (subject to reservations concerning interpretation), the law was published in the official gazette at the turn of the year. It will therefore be in force by the run-up to the next European elections in May, as intended by the Executive. The law is divided into three sections. The first, entitled...
[FR] New media chronology agreement finally signed
The French rules on media chronology, which cover all distribution windows for films, from their release in cinemas to free public access, were in urgent need of reform and modernisation. The previous agreement was more than ten years old, and was signed before subscription-based VoD platforms had appeared in the audiovisual landscape. In autumn 2017, following a breakdown in industry negotiations, the Minister for Culture asked mediators to unblock the situation so an agreement could be reached. More than a year later, on 21 December 2018, in line with their recent signature of agreements with...
[GB] High Court awards damages for libellous child grooming tweet
On 19 December 2018, Mr. Justice Nicklin handed down the judgment in Monir v Wood, ordering the defendant, the chairman of a local branch of a political party, to pay GBP 40 000 in damages for a defamatory message sent by a branch member through the branch’s Twitter account. The judgment highlights the potential liability of those who set up social media accounts and then delegate responsibility to others to post on their behalf. The claimant in this action was Zahir Monir, a businessman and Labour activist from Rotherham. He brought libel proceedings against Stephen Wood, the former chairman of...
[IE] Regulator consults public on Draft Media Plurality Policy
On 11 December 2018, the Broadcasting Authority of Ireland (BAI) launched a public consultation process regarding a new draft Media Plurality Policy. BAI's 2017-2019 Statement of Strategy states that the regulator should “promote a plurality of voices, viewpoints, outlets and sources in Irish media”. More precisely, the three key strategic objectives of the BAI in this regard are to: facilitate a mix of voices, opinions and sources of news and current affairs in the audiovisual media in order to enhance democratic debate and active citizenship in Ireland; increase the production and availability...
[IT] AGCOM amends the regulation on the administrative enforcement of copyright online
On 16 October 2018, the Italian Communication Authority (AGCOM), by resolution no. 490/18/CONS, amended the Regulation on Copyright Enforcement in Electronic Communications Networks (hereinafter the ‘Regulation’) which had been adopted by resolution no. 680/13/CONS. The goal of this Regulation, which became applicable on 31 March 2014, is to establish an ad hoc accelerated administrative procedure, meant as a public enforcement scheme alternative to the private enforcement mechanism provided for by the Italian law. The Regulation had vested AGCOM with the power to order providers to remove specific...
[IT] Developments in Italian legislation concerning the promotion of European works
On 30 December 2018 the Italian Parliament passed the 2019 Budget Law, which contains a variety of provisions affecting the legal framework applicable to audiovisual media services and electronic communications. Regarding legislation concerning audiovisual media services, Parliament has postponed the entry into force of some obligations introduced by Legislative Decree no. 203 of 7 December 2017 as part of the Franceschini Reform. In particular, the application of certain obligations has been postponed from 1 January 2019 to 1 July 2019, namely: - The increase of the quota (from 50% to 53% of the...
[IT] New measures provided for by the 2019 Budget Law governing the 700 MHz frequencies band repurposing and the transition from DVB-T to DVB-T2
On 30 December 2018 the Italian Parliament passed the 2019 Budget Law, which contains a variety of provisions affecting the legal framework applicable to electronic communications. In particular, the law has introduced some amendments to relevant norms of the Law no. 205 of 27 December 2017 (2018 Budget Law) governing the reframing of the 700 MHz frequencies band and the transition of digital terrestrial television from DVB-T to DVB-T2 standard. The law delegates to the Italian Communication Authority (AGCOM) and the Ministry of Economic Development (MISE) the responsibility to adopt the resolutions...
[LT] Tax incentive level for film production increased to 30%
On 11 December 2018, the Lithuanian Parliament adopted a law on tax incentives for film production in Lithuania. The offers the opportunity to save up to 30% of a film’s production budget spent in Lithuania through the private investment scheme. The new law will apply to the period 2019-2023 and replaces the expired 20% tax incentive scheme that was in effect from 2014 until the end of 2018. According to Lithuanian Film Centre, the previous tax incentive scheme demonstrated positive results - since its introduction in 2014 there has been a rapid growth in the number of foreign film productions;...
[NL] Column about a Dutch well-known comedian judged unlawful because it was needlessly offensive
In a judgement of March 14 2018, but published on October 31 2018, the District Court of Amsterdam ruled that a publisher of a Dutch free national newspaper had acted unlawfully by publishing multiple columns — both in print and on its website — in which a columnist accused a well-known Dutch comedian of sexual harassment and rape. The comedian had requested this declaratory decision, and claimed damages for the violation of his right to honor, good name, and reputation. In interim injunction proceedings, lodged by the comedian in 2015, the Court had already ordered the publisher to remove two...
[NL] Dutch government presents course of action against disinformation in the build-up to national and European elections.
In a letter sent to Dutch parliament on 13 December 2018, the Dutch Minister of the Interior and Kingdom Relations set out the Dutch governmental plans to tackle disinformation in the build-up to the European and national provincial elections of May and March 2019, respectively. The letter, in part, aims to implement motions that were adopted earlier in this context by the Dutch parliament. The Minister opens the letter by reiterating that the spread of disinformation with the goal to undermine and destabilize the democratic order poses a real threat. The government’s efforts are aimed at countering...
[RO] Support for the Romanian cinema industry
The Romanian Government and the national public broadcaster will continue to support the cinema industry in 2019 (see IRIS 2003-2/23, IRIS 2005-8/28, IRIS 2010-7/34, IRIS 2011-2/5, IRIS 2013-9/22, IRIS 2016-10/23, IRIS 2018-2/29, IRIS 2018-3/29, IRIS 2018-8/37). The Romanian Government will continue to support the film industry by granting state aid to film producers who will promote the national cultural identity and national minorities in Romania, as well as geographical areas or a city in the country. The National Commission for Strategy and Prognosis announced the opening of the 2019 session...
[RO] Support for the expansion of DTT broadcasting network in Romania
The European Investment Bank (EIB) is lending EUR 9.78 million to Romanian state-owned telecom services provider Societatea Naţională de Radiocomunicaţii SA (Radiocom) to partially finance the digitalisation of the country’s terrestrial broadcasting infrastructure (see IRIS 2009-9/26, IRIS 2010-3/34, IRIS 2010-7/32, IRIS 2010-9/35, IRIS 2011-4/33, IRIS 2013-5/38, IRIS 2013-6/30, IRIS 2014-4/26, IRIS 2014-5/29, IRIS 2014-9/27, IRIS 2015-5/33, IRIS 2016-2/26, and IRIS 2017-1/29). This transaction is backed by the European Fund for Strategic Investments (EFSI), the financial pillar of the Investment...
[RO] Three new draft laws to complete the Audiovisual Law
The Chamber of Deputies (lower chamber of the Romanian Parliament) has adopted three draft laws on the modification and completion of the Audiovisual Law no. 504/2002. The Senate (upper chamber) will take the final decisions (see IRIS 2010-1/36, IRIS 2011-4/31, IRIS 2011-7/37, IRIS 2013-3/26, IRIS 2013-6/27, IRIS 2014-1/37, IRIS 2014-2/31, IRIS 2014-7/29, IRIS 2014-9/26, IRIS 2015-10/27, IRIS 2016-2/26, IRIS 2016-10/24, IRIS 2017-1/30, IRIS 2017-7/28, IRIS 2018-6/30, IRIS 2018-8/36, IRIS 2018-10/22). On 14 November 2018, the Deputies adopted a completion of the Article 26 of the Audiovisual Law...