IRIS newsletter 2021-6
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 • 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 •
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2021 European Audiovisual Observatory, Strasbourg (France)
These past weeks have been particularly productive in Brussels. In chronological order: in a speech delivered to the European Parliament's Committee on Culture and Education on 19 April 2021, Commissioner Thierry Breton expressed his belief that the EU should “prepare a European Media Freedom Act to complement our legislative arsenal in order to ensure that media freedom and pluralism are the pillars of our democracies”; on 21 April 2021, the European Commission published its landmark and much-anticipated Proposal for a Regulation laying down harmonised rules on Artificial Intelligence; on 18 May 2021, the Council of the European Union approved conclusions to support the recovery and transformation of the European media sector; on 19 May 2021, the European Parliament adopted ‘Creative Europe’, the EU’s support programme for culture and the audiovisual sector; the same day, the European Parliament adopted a Resolution on Artificial Intelligence in education, culture and the audiovisual sector and a report with recommendations to the European Commission on challenges of sports events organisers in the digital environment; in another resolution adopted on 20 May 2021, Parliament reiterated the need for common EU rules on accessible and human-centric technology; and, last but not least, on 26 May 2021, the European Commission adopted its Guidance on Strengthening the Code of Practice on Disinformation.
This state of “busyness” reflects the convoluted times we live in. The COVID pandemic requires extraordinary budgetary measures, while groundbreaking technological developments and threats to media freedom elicit urgent regulatory responses. But this is not the exclusive territory of the EU: there is also lots happening on national levels. This includes among many other issues the transposition of the key provisions of the Directive on copyright in the Digital Single Market in French law, and the adoption in Italy of the 2019-2020 European Delegation Law which provides, inter alia the criteria and principles for the implementation of the AVMSD. On the other side of the Atlantic, the US Supreme Court handed down a decision in Google LLC v. Oracle America, Inc. with important implications for copyright law.
But enough with the spoilers. Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Akdeniz and others v. Turkey
The European Court of Human Rights (ECtHR) has delivered another judgment finding Turkey in breach with the right to freedom of expression and information as guaranteed by Article 10 of European Convention on Human Rights (ECHR). The case concerns an interim injunction ordered by the domestic courts banning the dissemination and publication in the press, television and radio and on the Internet of any information on a parliamentary inquiry into allegations of corruption against four former ministers. The applicants in this case are Banu Güven who is a well-known TV-journalist in Turkey,...
EU: Council of the EU
Council of the EU: Conclusions to support the recovery and transformation of the European media, cultural and creative sectors
On 18 May 2021, the Council of the European Union approved conclusions to support the recovery and transformation of the European media sector. The conclusions respond to the Action Plan presented by the Commission on 3 December 2020 (see IRIS 2021-2/3). The audiovisual industry and the news media sector have suffered during the COVID-19 crisis and face enormous challenges such as changes to people's viewing habits and the loss of advertising revenue. Member states are invited to take advantage of the Recovery and Resilience Facility, (the EU's post-crisis financial instrument),...
EU: European Commission
European Commission: Guidance on Strengthening the Code of Practice on Disinformation
On 26 May 2021, the European Commission adopted its Guidance on Strengthening the Code of Practice on Disinformation (see IRIS 2019-1/7). The Guidance calls for the reinforcement of the Code by strengthening it in the following areas: - The Commission encourages platforms active in the EU, relevant stakeholders in the online advertising ecosystem, private messaging services, as well as stakeholders that can contribute with resources or expertise to the Code's effective functioning, to join the Code. The Code should include new tailored commitments corresponding to the size and...
EU: European Commission
European Commission: Proposal for an Artificial Intelligence Act
On 21 April 2021, the European Commission published its landmark and much-anticipated Proposal for a Regulation laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). This follows the publication of the European Strategy on Artificial Intelligence in 2018, and the publication of the Guidelines for Trustworthy AI in 2019 by the High-Level Expert Group on Artificial Intelligence, established by the European Commission (see IRIS 2019-7/3). The 108-page Proposal for an Artificial Intelligence Act runs to 85 Articles and, as the Commission states, is based upon a risk-based...
EU: European Commission
European Commission: Towards a European Media Freedom Act
On a speech delivered to the European Parliament's Committee on Culture and Education on 19 April 2021, Commissioner Thierry Breton expressed his belief that the EU should “prepare a European Media Freedom Act to complement our legislative arsenal in order to ensure that media freedom and pluralism are the pillars of our democracies.” While the pandemic has accentuated the vulnerabilities and structural challenges of this sector which is facing increased competition with large platforms in a fragmented market, Mr Breton also sees a multitude of opportunities, particularly...
EU: European Parliament
European Parliament: Creative Europe 2021-2027 adopted
On 19 May 2021, the European Parliament adopted ‘Creative Europe’, the EU’s programme for culture and the audiovisual sector. The new programme will invest EUR 2.5 billion in the EU’s cultural and creative sectors. This is almost double the budget when compared to 2014-2020 (up from EUR 1.4 billion). Creative Europe is divided into three different strands: - Culture focuses on networking, transnational and multi-disciplinary collaboration in cultural and creative sectors and fostering a stronger European identity and values with special attention for the music sector,...
EU: European Parliament
European Parliament: Report on illegal broadcasting of live sporting events
On 19 May 2021, the European Parliament adopted a report with recommendations to the European Commission on the challenges of sports event organisers in the digital environment. According to the Report, enforcement procedures concerning live broadcasts of sports events need to be as swift as possible, but the current legal framework for injunctions and for notice and takedown mechanisms does not always sufficiently guarantee an effective and timely enforcement of rights. Therefore, concrete measures should be adopted to adapt the current legal framework to these specific challenges. In...
EU: European Parliament
European Parliament: Resolutions on Artificial intelligence adopted
On 19 May 2021, the European Parliament adopted a Resolution on Artificial intelligence in education, culture and the audiovisual sector. The resolution calls to ensure that AI technologies are trained in a way that prevents gender, social or cultural bias and protects diversity. Addressing the different aspects of AI technology use in education, the resolution stresses that teachers must always be able to correct decisions taken by the AI’s, especially regarding student selection and evaluation. At the same time, it highlights the need to enhance digital skills across Europe and train teachers...
[BG] Amendment to the Film Industry Act
The Bulgarian Film Industry Act was amended in March 2021 after a two and a half years into making. The main changes are that two new schemes are introduced for a first time in the film industry in Bulgaria – for support of TV series in the minimum amount of BGN 3 Million per year (EUR 1.5 M) and a new scheme for cash rebate with a total minimum amount per year of BGN 15 Million (EUR 7,5 M). The Law also provides the unprecedented raise of the state support for national cinema, which is the highest ever – BGN 25 Million per year as a minimum (EUR 12,5 M). The amendments to...
[BG] Mandatory requirements for video-sharing platform providers already in force in Bulgaria
On 22 December 2020 the Act for amendment and supplement to Закон за радиото и телевизията (the Radio and Television Act - RTA) was promulgated in Държавен вестник (State Gazette) and Directive (EU) 2018/1808 (AVMSD) was transposed in Bulgarian national law (see IRIS 2021-2/22). One of the main novelties concerns the regulation of video-sharing platform services and providers within the meaning of the AVMSD. The Съвет за електронни медии (the Council for Electronic Media - CEM) is now empowered to regulate all video-sharing platform providers (platform providers) which are operating under the...
[BG] The consolidation of local telecommunications and media market continues
The Dutch-based holding United Group continues the consolidation of the local market by closing a couple of new deals for the acquisition of some of the major regional telecom operators. This comes shortly after the January transaction approved by the competition watchdog for the acquisition of one of the leading media service providers Нова Броудкастинг Груп (Nova Broadcasting Group) (see IRIS 2021-3/19). By Decision № АКТ-402-15.04.2021 of Комисия за защита на конкуренцията (the Commission for Protection of Competition – CPC), the competition regulator approved the acquisition of the...
[CZ] Decision of the Supreme Adminstative Court on defective advertising
On 31 March 2021, the Czech Supreme Administrative Court upheld the judgement of the Regional Court of Brno in the case INDEX ČECHY s.r.o. against the Ministry of Industry and Trade concerning unlawful advertising. In 29 June 2016, the Regional Office of the South Moravian Region imposed a fine of CZK 50,000 on the plaintiff for committing an administrative offence pursuant to Section 8a (3) d) of Act No. 40/1995 Coll., on the regulation of advertising. It produced an advertisement in the form of a double-sided leaflet, which was publicly distributed in a quantity of 213,689, and which...
[CZ] Decision of the Supreme Court on television and radio fees
On 15 December 2020, the Czech Supreme Court decided that television and radio fees are a mandatory payment similar to tax, within the meaning of Section 240 of the Penal Code. The decision granted the appeal of the Supreme Public Prosecutor in the case of two entrepreneurs who had not paid a total of over CZK 300 thousand in television fees. The criminal offene of evading tax, fees and similar mandatory payments, pursuant to Section 240 of the Penal Code, is committed by a person who evades tax, customs, social security premiums, contributions to the state employment policy, accident insurance...
[DE] Advertising industry adopts new code of conduct and strengthens youth protection
On 12 April 2021, the Zentralverband der deutschen Werbewirtschaft (German Advertising Federation – ZAW) presented a revised version of the code of conduct on commercial communication for foods and beverages, which will enter into force on 1 June 2021. These self-regulatory rules apply to commercial communication such as advertising on TV, radio, posters and in magazines, as well as Internet and social media advertising, cooperation with influencers, and advertising on social networks and video platforms. Under the revised version of the Verhaltensregeln des Deutschen Werberats über...
[DE] New MDR state treaty can enter into force following ratification by state parliaments
Following the decision of the Thüringen state parliament on 21 May 2021, all state parliaments of the Länder of Saxony, Saxony-Anhalt and Thüringen have now approved the amended Staatsvertrag über den Mitteldeutschen Rundfunk (state treaty on Mitteldeutscher Rundfunk – MDR-StV). The amended treaty can therefore enter into force on 1 June 2021. The broadcasting corporation Mitteldeutscher Rundfunk (MDR) is a member of the Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (German Association of Public Service Broadcasters...
[DE] New media company code to improve protection of journalists from violence and threats
A new code of conduct for media companies was unveiled on 22 April 2021. Drafted at the initiative of a number of organisations and associations, including Reporters Without Borders and the Deutsche Journalisten-Verband (German Journalists’ Association – DJV), the code is designed to improve the protection of journalists from violence and other threats. It contains a list of measures, including essential mechanisms that media companies should put in place in order to deal with threats aimed at their employed or freelance journalists. All media companies involved in journalistic activities...
[DE] State media authorities issue further rules on state media treaty
The 14 German Landesmedienanstalten (state media authorities) have jointly drafted further rules to implement the provisions of the new Medienstaatsvertrag (state media treaty – MStV). The boards of the individual media regulators are now gradually approving these rules, clearing the way for them to enter into force. Following the entry into force of an initial series of rules designed to implement the MStV’s provisions on exemption from prior authorisation, advertising and competition (see IRIS 2021-4/12), the latest rules concern, among other things, European productions (Article...
[ES] Audiovisual media service providers meet European film and series funding ratios for 2019
Law 7/2010 of 31 March 2010 on General Audiovisual Communication obliges audiovisual media services providers to earmark part of their revenue for the financing of European films and series in order to promote cultural and linguistic diversity. This provision stems from the Audiovisual Media Services Directive. The financing may take the form of a direct participation in the production or works or the acquisition of exploitation rights. The extent to which service providers must contribute varies depending on their type: public service broadcasters must invest 6% of their profits from the previous...
[ES] RTVE interview violated the principles of informative neutrality and equality
On 13 May 2021, the Junta Electoral Central (Central Electoral Board - JEC) partially upheld the appeal filed by the political party Vox against Decision no. 92 of the Provincial Electoral Board of Madrid of 1 May 2021, in relation to its complaint against the Corporación Radio y Televisión Española for the interview with the Vox candidate, in the programme "La Hora de la 1", broadcast on 26 April 2021. The decision rules that, in the terms in which the interview was carried out, there was a violation by RTVE of the principles of informative neutrality and equality...
[FR] Key provisions of Directive 2019/790 on copyright and related rights transposed into French law
The key provisions, namely Articles 17 to 23, of Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market, were transposed into French law by Ordinance No. 2021-580 of 12 May 2021. Article 15 of the Directive had previously been transposed by the Law of 24 July 2019 creating a neighbouring right for press publishers and agencies. Under Article 1 of the Ordinance, a new Article L. 137-1 of the Intellectual Property Code (IPC) defines the scope of the services concerned by the transposition of Article 17. It...
[FR] Satirical song did not cross the boundary of freedom of expression
During the France Inter programme “Par Jupiter!”, in response to a Brazilian court’s decision to ban a film portraying Jesus Christ as a homosexual, a singer performed a satirical song entitled “La chanson de Frédéric F...” in which Jesus Christ was described as a homosexual in obscene and vulgar terms. The political think tank Fondation de service politique asked the Conseil d'Etat (Council of State) to annul the decision of the Conseil Supérieur de l'Audiovisuel (French audiovisual regulatory body – CSA) of 26 February 2020 in...
[FR] Application for stay of CSA sanction against CNews rejected
On 17 March 2021, the Conseil Supérieur de l'Audiovisuel (French audiovisual regulatory body – CSA), pursuant to Article 42-1 of the Law of 30 September 1986, imposed a fine of EUR 200,000 against the CNews television channel following remarks made by political commentator Eric Zemmour during the programme “Face à l'info” broadcast on 29 September 2020 (see IRIS 2021-5:1/26). Zemmour then asked the urgent applications judge of the Conseil d'Etat (Council of State) to stay the execution of the decision. He argued that execution of the decision would infringe...
[GB] Channel 5 makes public apology for “Can’t Pay? We’ll Take It Away!” broadcast
On 19 April 2021, Channel 5 publicly apologised and agreed to pay damages to a couple who were shown in the television programme Can’t Pay? We’ll Take it Away! Channel 5 Broadcasting Ltd is a national broadcaster which broadcasts Channel 5, and also 5HD, 5 + 1, Spike, 5Star and 5USA. It also operates My5, a free video on-demand internet service. Can’t Pay? We’ll Take It Away! is a British factual documentary series which follows the work of High Court Enforcement Officers (HCEAs) as they go about their business of collecting alleged debts and repossessing homes. The...
[GB] High Court determine publication of Notice by the Daily Mail recording summary judgment awarded to HRH Duchess of Sussex
The Honourable Mr Justice Warby of the High Court of Justice gave summary judgment on 11 February 2021 (February judgment) for HRH The Duchess of Sussex (HRH) which declared that Associated Newspapers Limited (ANL) in a series of Daily Mail and MailonLine articles had breached HRH’s copyright and privacy by publishing a private letter that she had sent to her estranged father a few months after marrying Prince Harry. On 5 March 2021 Mr Justice Warby determined the extent and nature of the public apology notice from ASL (March judgment). In May 2021 the court received further evidence that...
[GB] TV network sanctioned by Ofcom for the third time over harmful coronavirus-related content
On 19 April 2021, Ofcom, the UK’s communications regulator, found that two episodes of the Loveworld TV Network’s programme Full Disclosure featured potentially harmful statements about the Coronavirus pandemic and vaccine rollout, without providing adequate protection for viewers. Full Disclosure is a current affairs programme which features two presenters discussing a range of news stories. It is broadcast by the religious channel Loveworld Television Network, the licence for which is held by Loveworld Limited. Ofcom found that during two Full Disclosure episodes (broadcast...
[IT] Agcom intervenes to avoid forms of spectacularization of events that can harm the personal sphere
On 29 April 2021, the Italian Authority for Communications (Agcom) adopted a decision against the company "La7 S.p.A." to ensure strict compliance with the principles enshrined in the Consolidated Law on Audiovisual Media Services (TUSMAR) and in the Authority's provisions to protect impartial information and correct the way of representing legal proceedings and the image of women. The issue concerns the way in which a case of alleged sexual violence committed by a well-known successful entrepreneur operating in the fintech sector (Genovese case) was dealt with by the very popular...
[IT] European Delegation Law setting criteria and principles for AVMSD implementation
On 21 April 2021 the Italian Parliament passed the 2019-2020 European Delegation Law (Law No. 53/2021). The European Delegation Law vests in the Executive the power to adopt, by a legislative decree, a set of provisions implementing in the Italian legal system the directives that Italy is bound to transpose according to the EU Treaties. When providing for such delegation of powers the law also establishes the criteria and principles that the national norms, to be adopted by the Executive branch, shall comply with. Article 3 of the 2019-2020 European Delegation Law provides the criteria and...
[IT] New regulation governing works of Italian original expression
On 29 January 2021, the Ministry of Culture and the Ministry of Economic Development issued a new regulation providing the definition of audiovisual works of Italian original expression, produced anywhere, in accordance with Article 44-sexies of the AVMS Code (Legislative Decree No. 177 of 31 July 2005). The regulation entered into force on 23 April 2021, although applications for obtaining the recognition as works of Italian original expression will be accepted only from 7 June 2021. According to Article 2 of the regulation, audiovisual works of Italian original expression include the following...
[NL] Dutch Press Council introduces criteria for anonymization requests
On 1 May 2021, the Raad voor de Journalistiek (Dutch Press Council) incorporated in its Leidraad (Guidelines) new criteria for assessing complaints from individuals who have unsuccessfully requested media to erase or anonymise their personal data in online publications. The Dutch Press Council also dealt with such requests prior to the introduction of these criteria in the Guidelines, pursuant to the general right to be forgotten (see, for example, IRIS 2018-6/7 and IRIS 2019-10/4), stressing the need for the creation of specific criteria. The Dutch Press Council is an organisation...
[NL] Facebook joins Dutch Advertising Code Foundation
On 29 April 2021, the Stichting Reclame Code (Dutch Advertising Code Foundation) announced that Facebook had joined, and officially endorsed the principles and objectives of the Advertising Code Foundation. The Foundation is the self-regulatory body for advertising in the Netherlands (see IRIS 2018-2/27 and IRIS 2013-7/21). Importantly, the Foundation maintains the Nederlandse Reclame Code (Dutch Advertising Code), and consumers, commercial companies and other organisations that have a complaint about an advertisement can submit it to the independent Reclame Code Commissie (Advertising...
[PL] Appeal court decides on obligation for ZDF and UFA Fiction to issue public apology
Following an appeal by Zweites Deutsches Fernsehen (ZDF) and UFA Fiction GmbH, the Kraków appeal court has amended a first-instance decision requiring them to issue a public apology for breaching the personality rights of members of the Polish Home Army (AK) and to pay compensation in relation to the broadcast and production of the film series Unsere Mütter, unsere Väter (Our mothers, our fathers). While the compensation order was quashed, the obligation to issue a public apology on Polish television and the German channels ZDF, ZDFneo and 3sat was upheld. The written grounds for...
[RO] Draft modification of the PSB Law
Romanian MPs from the center-right ruling coalition have initiated a legislative proposal for the modification of Law No. 41/1994 on the organization and functioning of the Romanian Radio Broadcasting Company and the Romanian Television Company, with subsequent amendments and completions (see inter alia IRIS 2014-7/30,IRIS 2015-6/33, IRIS 2015-8/26, IRIS 2016-5/28, IRIS 2017-3/26, IRIS 2017-8/31, IRIS 2017-10/31, IRIS 2018-1/35, IRIS 2018-2/30, IRIS 2018-6/29, IRIS 2018-7/27). The main modification consists of splitting the function of President of the Board of Administration and Director General...
[RU] New fines for media and "false journalists"
On 30 April 2021, President Vladimir Putin signed into law amendments to the Code on Administrative Offences. Under the new paragraph 2.4 of Article 13.15 of the Code, dissemination in the mass media and in online messages and materials of the mass media of messages and/or materials of foreign mass media performing the functions of a foreign agent and/or a Russian legal entity included in the Register of foreign mass media, performing the functions of a foreign agent, without indicating that these messages and/or materials were created and/or disseminated by foreign mass media performing...
United States of America
[US] Google v Oracle - when is it "fair use" to copy content?
On 5 April 2021, the United States Supreme Court handed down its decision in Google LLC v. Oracle America, Inc. 593 U.S. ___ (2021), thereby concluding over ten years of protracted and intensely followed litigation. Google ultimately won what has been called the “copyright case of the century”, with a 6-2 majority (the Court’s newest justice, Amy Coney Barrett, did not participate). Much has been written about the case, which focused on the copyrightability of approximately 11,500 lines of software source code, first published by Oracle. This code was used by Google as the...