IRIS newsletter 2022-1
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 • Ulrike Welsch
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Julio Talavera Milla • Aurélie Courtinat • Barbara Grokenberger • Glenn Ford • Claire Windsor
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2022 European Audiovisual Observatory, Strasbourg (France)
In Europe, there are many traditions associated with the end of the year’s festivities: decorated trees, manger scenes, carol singing, and naturally, presents! Be it on the 6th, the 24th or the 25th of December, or even on the 6th of January, children young and old receive gifts brought from faraway countries by Santa Claus, the Befana or the Three Wise Men, to name just a few. And while the European Audiovisual Observatory has neither flying reindeers nor camels or magical broomsticks, we would like to join this marvelous tradition by presenting you with our latest work: a Mapping report on national remedies against online piracy of sports content. Made at the behest of the European Commission, this report provides a comprehensive analysis of the remedies adopted at national level in the EU and in the UK against online piracy of sports content.
We are now in 2022, a year of great expectations. While we hope that Omicron will be the last letter of the Greek alphabet that we will need to remember, we will probably have to continue accepting painful but necessary restrictions for quite a while. And while the new German government has taken its first steps, elections in Portugal, France, Hungary and Sweden will certainly mark the future of the European Union for the next few years. Of course, while events unfold, we will continue providing you with information such as the one found in this newsletter: among other issues, you can read about three judgments of the ECtHR, a European Commission proposal for a Regulation on the transparency and targeting of political advertising, an amendment to the German State Media Treaty, the Italian transposition of the AVMSD and two copyright directives, and the signature of a media chronology agreement in France.
We wish you a happy and successful new year, in which by the way the Observatory will celebrate its thirtieth anniversary! Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights : Biancardi v. Italy
While the case of Hurbain v. Belgium (IRIS 2021-8:/27) on the right to be forgotten and the accessibility and integrity of online news archives is pending before the Grand Chamber of the European Court of Human Rights (ECtHR), the ECtHR has delivered a new judgment on this matter. In Biancardi v. Italy the ECtHR found no violation of the right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) in a case where the editor-in-chief of an online newspaper was held liable under civil law for not having de-indexed an article despite the request by the...
European Court of Human Rights: Vedat Şorli v. Turkey
Once again the European Court of Human Rights (ECtHR) has found a violation of the right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) in a case against Turkey. This time, the ECtHR found that the pre-trial detention and criminal conviction for insulting the Turkish president Recep Tayyip Erdoğan in two posts on Facebook amounted to a violation of the right to freedom of (political) speech. The case concerns the criminal proceedings instituted against Mr Şorli for insulting the President of the Turkish Republic, on account of two satirical...
European Court of Human Rights: A.M. v. Turkey
In a judgment of 19 October 2021, the European Court of Human Rights (ECtHR) found a violation of the right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) in a case where disciplinary sanctions had been imposed on the applicant for a video posted on Facebook. According to the Turkish authorities the video offended the Prophet of Islam, an offence that had to be qualified as an act aimed at humiliating Turkishness. At the time of the application, the applicant, A.M., was the president of the International Yoga Federation and a yoga trainer...
EU: European Commission
Proposal for a Regulation on the transparency and targeting of political advertising
On 25 November 2021, the European Commission published its much-anticipated proposal for a Regulation on the transparency and targeting of political advertising. The proposed Regulation is part of the Commission’s European Democracy Action Plan, which was published in late 2020, where the Commission recognised the need for new legislation to bring more transparency to political advertising across the EU (see IRIS 2021-2/4). The Commission stated that the Regulation is planned to enter into force and be fully implemented by member states by April 2023, a year before the 2024 elections to the...
[BG] Supreme Court of Cassation's decision on the right to refuse filming by journalists in the context of right to privacy
In a recent decision, Върховен касационен съд (the Supreme Court of Cassation/ the Supreme Court) ruled on the boundaries between journalists’ freedom, objectivity and dissemination of information, and the right of individuals not to be filmed without their consent. The case was formed following a claim for compensation for non-pecuniary/moral damages brought by an individual against one of the national broadcasters which owns several TV channels, websites, etc. The reason for the claim was video material, broadcast on one of the national television channels, in which the...
[DE] Draft second state media treaty amendment adopted
On 22 October 2021, the heads of the governments of the German Länder adopted the draft 2. Medienänderungsstaatsvertrag (second amendment to the state media treaty – 2. MÄndStV), known as the Barrierefreiheitsstaatsvertrag (state accessibility treaty), which transposes Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services, and therefore strengthens the provisions of the Medienstaatsvertrag (state media treaty – MStV) to protect people with disabilities from discrimination. The...
[DE] Federal Administrative Court: no right of access to ministries’ Twitter direct messages
In a decision of 28 October 2021, the Bundesverwaltungsgericht (Federal Administrative Court – BVerwG), Germany’s highest administrative court, ruled that the Informationsfreiheitsgesetz (Freedom of Information Act – IFG) does not entitle citizens and journalists, who enjoy the same rights under the IFG, to access direct messages sent and received by federal government ministries on Twitter. The case concerned an information request submitted by FragDenStaat, a non-profit Internet platform, through which requests can be submitted on the basis of Germany’s federal and...
[DE] Federal Supreme Court rules on operating costs for broadband cable connections
In a judgment of 18 November 2021, the 1st civil chamber of the Bundesgerichtshof (Federal Supreme Court – BGH), whose field of jurisdiction includes competition law, decided that residential tenancy agreements can bind a tenant to a paid broadband cable connection, provided by a landlord, for the entire duration of the agreement. The proceedings had been instigated by the Zentrale zur Bekämpfung unlauteren Wettbewerbs (Office Against Unfair Competition) against a landlord with more than 120 000 rental properties, around 108 000 of which are connected to a cable television network...
[DE] Media and digital policy in the ‘traffic light’ coalition agreement
The media policy section of the coalition agreement signed by Germany’s new ‘traffic light’ coalition parties, i.e. the SPD (Social Democratic Party), Bündnis 90/Die Grünen (Alliance 90/The Greens) and the FDP (Free Democratic Party), begins by highlighting the indispensability of free, independent media at public and private levels in a democracy, no doubt in response to an increase in defamatory statements linked to the refugee and coronavirus crises in Germany, as well as undesirable recent developments in EU member states, such as Poland and Hungary. This matter...
[FR] Conseil d’État rejects RMC Découverte appeal against CSA’s refusal to classify programmes as documentaries
On 3 July 2012, the company RMC Découverte, which operates the terrestrial television channel of the same name, signed an agreement with the Conseil supérieur de l’audiovisuel (the French audiovisual regulator – CSA), Article 3-1-1 of which requires it to ensure that “documentaries make up at least 75% of total airtime each year and cover a wide variety of topics.” In decisions of 11 July 2018, 17 June 2019 and 20 May 2020, the CSA refused to classify 16, 15 and 6 programmes broadcast by the channel as “documentaries”, as defined in the agreement....
[FR] Canal Plus and French cinema industry sign media chronology agreement
A key element of the current audiovisual reforms, media chronology, which determines when cinematographic works can be released via different methods of exploitation, is set out in Articles L. 231-1 et seq. of the Code du cinéma et de l'image animée (Cinema and Animated Image Code). Under the law, a professional agreement should be signed, setting out when a film can be made available by an on-demand audiovisual media service provider or when it can be broadcast on television. The current agreement, which was concluded on 6 September 2018, was extended to include all companies...
[FR] Creation of experimental fund for French works destined for non-European on-demand audiovisual media services
Through a decision taken on 5 November 2021 amending the General Aid Regulations, the Centre national du cinéma et de l'image animée (National Centre for Cinema and the Moving Image – CNC) set up an experimental fund to support the independent production of French audiovisual works prefinanced exclusively by non-European on-demand audiovisual media service platforms. The investment obligations that now apply to foreign platforms result from the transposition of the European Audiovisual Media Services Directive through an ordinance issued in December 2020. The detailed...
[FR] International on-demand audiovisual media service platforms reach agreement with CSA on their obligations towards French and European audiovisual and film production
Following on from the transposition of the European Audiovisual Media Services Directive through the Ordinance of 21 December 2020, the On-Demand Audiovisual Media Services Decree of 22 June 2021 obliges foreign platforms to invest in the French and European film and audiovisual sector. Previously, only French-based service providers had been required to finance the film-making industry. The Conseil supérieur de l’audiovisuel (the French national audiovisual regulator, CSA, which will become the Autorité de régulation de la communication audiovisuelle et numérique...
[FR] Text and data mining, out-of-commerce works, extended collective licensing: Ordinance of 24 November 2021 completes transposition of Directive 2019/790
After the Law of 24 July 2019 protecting the neighbouring rights of press publishers and agencies, and the Ordinance of 12 May 2021 that transposed into French law the new system of liability of content-sharing platforms and mechanisms for the fair remuneration of rightholders, the Ordinance of 24 November 2021 completed the transposition of Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market, the deadline for which had been 7 June 2021. In accordance with Articles 3 to 6 of the Directive, the Ordinance provides for and adapts exceptions to copyright and neighbouring...
[GB] Digital Culture Media and Sport Committee undertake enquiry into role and impact of social media influencers and the need for further regulation
Currently, Digital Culture Media and Sport Committee of the UK Parliament is undertaking an enquiry, which started in June 2021, into the influencer culture, including the radicalisation by some influencers. The enquiry is considering the power of influencers on social media, how influencer culture operates, and the absence of regulation on the promotion of products or services, aside from the existing policies of individual platforms. Research showed that more than three-quarters of influencers “buried their disclosures within their posts”. Also, the enquiry will assess...
[IT] Italy transposes Directive (EU) 2019/790 (DSM Copyright), Directive (EU) 2019/789 (Sat Cab) and Directive (EU) 2018/1808 (Audio Visual Media Services)
On 4 November 2021, the Italian Government approved the legislative decrees implementing, in Italy, EU Directive No. 2019/790 (“Copyright Directive”) and EU Directive No. 2019/789 (“Sat Cab Directive”), which will substantially amend the Italian Copyright Act (Law No. 633/1941). On the same day, the Italian Government also approved the new Italian Audiovisual Media Services (“AVMS”) Code, transposing into Italian law EU Directive No. 2018/1808 (which amended the AVMS Directive). A few months ago, following the guiding principles set forth by the European Mandate...
[NL] Judgment on use hidden-camera footage in investigative programme
On 12 November 2021, the Rechtbank Amsterdam (District Court of Amsterdam – the Court) issued an important judgment on the broadcast of hidden-camera footage used during an investigative programme. The Court also laid down important principles on when a broadcast may be prohibited before it is broadcast. The case involved the well-known Dutch television programme Undercover in Nederland, which is produced by Noordkaap TV productions, and broadcast by the commercial Dutch broadcaster SBS6. At issue was an upcoming broadcast of the programme, which was to feature reports of serious irregularities...
[NL] Facebook not required to reinstate posts by prominent public figure
On 29 October 2021, the Rechtbank Rotterdam (District Court of Rotterdam - the Court) delivered a notable judgment on Facebook’s removal of posts by a prominent activist, and whether Dutch courts may apply the right to freedom of expression under Article 10 of the European Convention on Human Rights to a platform’s removal of such content. The case involved Willem Engel, a well-known activist who campaigns against Covid-19 measures implemented by the Dutch government, and is director of a high-profile campaign group “Stichting Viruswaarheid” (Virus Truth Foundation)....