IRIS newsletter 2022-5
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 • Glenn Ford • Claire Windsor
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2022 European Audiovisual Observatory, Strasbourg (France)
Following the banning of the state-owned Russian broadcasting services RT and Sputnik by the European Council on the 1st March this year following the Russian invasion of Ukraine, EU members have implemented the Council Decision and Regulation and suspended such services. As reported in this issue, the largest Internet service providers in the Netherlands (VodafoneZiggo, T-Mobile, and KPN) have blocked the websites of the Russian state-owned media outlets RT and Sputnik. In addition, the National Audiovisual Council (CNA) in Romania has imposed fines on domestic broadcasters for failing to provide objective information to favour the free formation of opinions in relation to the coverage of the war in Ukraine. Moreover, Latvia has also banned access to 71 websites in the country that allegedly distributed Russian propaganda, also prohibiting the broadcast of 18 television programmes owned by Gazprom Media Holdings or its subsidiary Red Media. On the other hand, a Russian court found certain content on Facebook and Instagram to be “extremist” and generating disinformation about the so-called “special military operation”; as a result, the two American social networks have been banned in Russia. Moreover, the Code of the Russian Federation on Administrative Offences has been amended to prohibit the denial of the “decisive role of the Soviet people in the defeat of Nazi Germany and the humanitarian mission of the USSR in the liberation of European countries”. Our current issue also explains the legislative framework implemented by Ukraine so as to fight the information aggression and ensure "a unified information policy under martial law".
On a different topic, on 23 April a political agreement was reached between the EU institutions on the proposal on the Digital Services Act (DSA). The “trilogue” deal is now subject to formal approval by the two co-legislators. This means that a final adoption of the DSA is to be expected very soon!
You can read about these and many other interesting developments in our electronic pages.
More than ever, stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: OOO Memo v. Russia
The European Court of Human Rights (ECtHR) has delivered a judgment in which, for the first time, it refers to the notion of SLAPP (Strategic Litigation Against Public Participation). In its judgment of 15 March 2022, in the case of OOO Memo v. Russia, the ECtHR expresses its concerns about the risk for democracy of court proceedings instituted with a view to limiting public participation. The case concerns a civil defamation suit brought by a Russian regional state body against a media company. The ECtHR found that allowing executive bodies to bring defamation proceedings against members of the...
EU: European Commission
Proposed Directive on Strategic Lawsuits Against Public Participation
On 27 April 2022, the European Commission published a new proposal for a Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”, or “SLAPPs”). The proposal establishes tools for all persons engaged in issues of public interest to fight back against abusive court proceedings. It follows a public consultation (launched by the European Commission between October 2021 and January 2022) and an own-initiative report adopted by the European Parliament on 11 November...
EU: European Commission
Digital Markets Act – Parliament and Council reach a political agreement
On 24 March 2022, a little over a year after the Commission published its proposal, the European legislators reached a provisional political agreement on the Digital Markets Act (DMA). The DMA aims at making the online sector a fairer and more competitive one by redistributing the cards between the actors. The past few years have seen online intermediaries massively develop and several platforms now largely dominate the digital market, both economically and socially. The DMA, which applies to the largest and most powerful ones, will make the so-called “gatekeepers” abide by new...
EU: European Commission
The European Parliament and EU member states reach an agreement on the DSA
Following the Commission’s proposal of 15 December 2020 (see IRIS 2021-2:13), the journey towards the adoption of the DSA has taken another step forward: on 23 April 2022, the trilogues came to an end with the reach of a political agreement between representatives of the Parliament, the Council and the Commission. uUp until now, the online sphere was regulated through a set of measures contained in the e-commerce directive and by a range of targeted and sector specific initiatives, among which the Copyright Directive, the Audiovisual Media Services Directive and the regulation on addressing...
[RU] Court decision on “extremism” of Facebook and Instagram
On 21 March 2022, the Tverskoy District Court in Moscow issued its decision on the civil lawsuit of the First Deputy Prosecutor-General of the Russian Federation to the Meta Platforms Inc. Acting in the public interests, the plaintiff requested the court to ban the activities of the “American transnational holding company” on the territory of the Russian Federation on the basis of its extremist activity, with the additional circumstance that the company’s corporate policy “is directed against the interests of the Russian Federation and its citizens, establishes a threat...
[BG] CEM report on the presidential and legislative election campaigns
On 14 February 2022, Съветът за електронни медии (the Council for Electronic Media – CEM) published its Report on the specialized monitoring of the election campaign for the president and vice president of the Republic of Bulgaria, and for the snap elections for the 47th Parliament. Through its monitoring, CEM establishes how media service providers reflect upon the election campaign of political parties, and to what extent media outlets comply with the requirements of Изборен кодекс (the Election Code) and Закон за радиото и телевизията (the Radio and Television Act). Through...
[DE] Federal Council adopts position on proposed European Media Freedom Act
In a resolution adopted on 11 March 2022, concerning the European Media Freedom Act announced by the European Commission, the German Bundesrat (Federal Council) expressed support for sector-specific rather than fully harmonised regulation in the media sector. The Federal Council welcomed the Commission’s decision to launch a debate on how media freedom could be protected and strengthened in Europe, as well as an open public consultation on the subject. The German Länder believed the answer to this question was crucial for Europe’s future because the EU was not only a single...
[DE] KEK publishes 7th German media concentration report
On 15 March 2022, the Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media – KEK) published its 7th concentration report, which describes the current status and development of media concentration in Germany and the measures taken to safeguard diversity of opinion in private broadcasting. This year, the report, which is published at regular intervals, focuses on the clear change in the media usage habits of younger age groups in particular, which also has an impact on the protection of media pluralism. The KEK, which comprises six broadcasting...
[DE] NDR’s constitutional complaint concerning Tagesschau app rejected
In a ruling issued on 23 February 2022 and published on 25 March 2022, the Bundesverfassungsgericht (Federal Constitutional Court – BVerfG) rejected a constitutional complaint lodged by Norddeutscher Rundfunk (NDR) regarding the admissibility of the Tagesschau app on the grounds that the complaint was inadmissible. The dispute dates back to 2011, when eight newspaper publishers, in coordination with the Bundesverband Digitalpublisher und Zeitungsverleger (Federal Association of German Newspaper Publishers – BDZV), filed a complaint against ARD and NDR with the competition chamber...
[DE] VG Berlin confirms mabb’s RT DE broadcast ban in interim proceedings
In a ruling of 17 March 2022, the Verwaltungsgericht Berlin (Berlin Administrative Court – VG Berlin) provisionally upheld the decision taken by the Medienanstalt Berlin-Brandenburg (mabb) in early February, banning the organisation and distribution of the television channel RT DE, which was broadcast throughout Germany (see IRIS 2022-3/23). The decision had been based on the fact that the channel’s Berlin-based operator, RT DE Productions GmbH, did not hold the licence it required under the German Medienstaatsvertrag (state media treaty) to broadcast at national level. The VG Berlin...
[FR] Court hearings may be filmed under certain conditions
Article 38b of the Loi sur la liberté de la presse (Press Freedom Act) of 29 July 1881 prohibits the recording of images of court proceedings, stipulating that “as soon as an administrative or judicial court hearing begins, the use of any device capable of recording or transmitting sound or images is prohibited”. Under Article 1 of the Loi pour la confiance dans l'institution judiciaire (Law on trust in the courts) of 22 December 2021, a new Article 38c created the possibility, by way of derogation from the first paragraph of Article 38b, to record or film civil, criminal...
[FR] New film exploitation regulations
Under two decrees adopted on 25 February and 10 March 2022, the regulatory part of the French Code du cinéma et de l'image animée (Cinema and Animated Image Code) and Article 2 of Decree no. 90-66 of 17 January 1990 defining cinematographic works within the meaning of the code were amended. The decree of 25 February 2022 modernises the work of the Centre national du cinéma et de l'image animée (National Centre for Cinema and the Moving Image – CNC), safeguards the legal mechanism for the payment of fees for managing the Registres du cinéma et...
[FR] The name “France” belongs to the French state
An American company, France.com, which had registered the domain name “france.com” in 1994, discovered several years later that a Dutch company had registered various French and EU trademarks under the name “France.com” in 2009. It therefore sued the Dutch company on the grounds that it had registered the marks fraudulently, demanding that it transfer them to it and compensate it for the losses it had suffered. The French state then intervened in the proceedings and the court ruled that the marks should be declared void and the domain name transferred. The economic interest...
[GB] The Supreme Court find Bloomberg’s reporting of a criminal investigation before any charge breached an individual’s reasonable expectation of privacy
The Supreme Court has determined that Bloomberg LP (Bloomberg) misused private information when it published an article regarding ZXC, the CEO of a public international company. The article relied upon a confidential Letter of Request (LOR), concerning ZXC and his company, issued by a UK law enforcement body to another jurisdiction. ZXC argued the use of the LOR by Bloomberg before any investigation and charge had been made constituted a breach of his reasonable expectation of privacy. The High Court agreed, considering Bloomberg had published information that should have remained private....
[IT] AGCOM establishes quality parameters for the fruition of live streaming broadcasting services of the Italian Serie A Championship on the DAZN platform
The OTT platform DAZN, operating under German authorization, has acquired the audiovisual rights on the Italian Serie A Championship, obtaining the possibility to broadcast all Serie A football matches (380 in total) for three years (2021-2024), of which 70% are on an exclusive basis. Although AGCOM welcomed the web-broadcasting of such a major sporting event in Italy as an important leeway for the digitalization of the Country, several problems arose concerning the quality of the streaming services offered. For this reason, through Resolution No. 334/21/CONS, AGCOM initiated a proceeding...
[LV] Restrictions on harmful or illegal content and Russian propaganda channels
As already reported, at the beginning of 2022 (Iris 2022-2/10), the National Electronic Mass Media Council of Latvia (NEPLP) banned the distribution of nine Russian television programmes in Latvia which, in NEPLP’s view, disseminated content and appeals that endangered national security. Since then, Latvia has continued to restrict content endangering national security. Media monitoring by NEPLP has resulted in new bans, as well as legislative changes. Since 24 February 2022 - the beginning of the war started by Russia in Ukraine - NEPLP has prohibited the retransmission into Latvia of...
[MD] Audiovisual Code amended to strengthen parliamentary control and change advertising rules
Several noteworthy legal changes happened in the regulation of the audiovisual sector in Moldova at the end of 2021. On 4 November 2021 the Code of the Audiovisual Media of the Republic of Moldova (see IRIS 2019-3/24 and IRIS 2021-3/11) was amended to introduce new levers of parliamentary control. The amendments subject the Director-General of the public service broadcaster TRM to the political choice of the Parliament, including the decisions regarding his/her appointment, performance assessment, and dismissal. This parliamentary control replaces the control over these matters previously...
[MT] The Bolder and Better Cash Back Scheme for Audio-Visual Productions
The Malta Film Commission (MFC) has recently launched a new financial scheme to assist producers in their work. Established in 2000, the MFC was tasked with assisting Maltese film producers while strengthening the film service sector. Over the years Malta has managed to attract multi-million dollar productions including blockbusters like Gladiator (2000), Munich (2005) and more recently Murder on the Orient Express (2017) The MCF has recently launched the 40% Cash Back Scheme. Dubbed as "Bolder and Better", the scheme runs until the end of December 2023 and contemplates a...
[NL] Court of Appeal upholds ruling on investigative crime programme using hidden-camera footage
On 15 March 2022, the Gerechtshof Amsterdam (Amsterdam Court of Appeal) delivered an important judgment largely upholding an earlier District Court judgment on the lawfulness of allegations contained in an investigative crime programme using hidden-camera footage (IRIS 2020-10/10). The Court of Appeal conducted a fundamental rights balancing exercise similar to that of the District Court, with the important difference that it assessed the original TV broadcast and the modified online episode as separate communications. It ruled that because of the implementation of privacy-preserving measures,...
[NL] Dutch ISPs block RT and Sputnik websites
On 8 March 2022, the largest Internet service providers (ISPs) in the Netherlands (VodafoneZiggo, T-Mobile and KPN) announced that the websites of the Russian state-owned media outlets Russia Today and Sputnik would be blocked in the Netherlands. This followed the adoption of a regulation by the Council of the European Union on 1 March 2022, which prohibited “operators to broadcast or to enable, facilitate or otherwise contribute to broadcast, any content by [Russia Today and Sputnik], including through transmission or distribution by any means such as cable, satellite, IP-TV, internet service...
[NO] Sanctions on RT and Sputnik not to be adopted in Norway
Freedom of expression has a high level of protection under the Norwegian Constitution. Based on a constitutional assessment, the Norwegian government has decided not to adopt sanctions on Russian state-controlled media. In a statement presented at the Norwegian Parliament on 18 March 2022, Prime Minister Jonas Gahr Støre stressed that media literacy should, as far as possible, be the main tool to fight disinformation. The Prime Minister also expressed concerns that sanctions against the Russian controlled media outlets, Russia Today (RT) and Sputnik could be exploited by Putin's...
[RO] Sanctions in the context of the war in Ukraine
The Consiliul Naţional al Audiovizualului (National Audiovisual Council – CNA) has issued further sanctions on media outlets which have not observed the legal framework in connection to the war in Ukraine (for previous similar decisions, see inter alia IRIS 2012-4/36, IRIS 2017-6/27, IRIS 2019-8/35). Additional radio and TV stations have also been fined or received summons for breaches of the audiovisual legislation with relation to their coverage of the war in Ukraine. Gold FM commercial radio station was fined on three occasions with a total of RON 160 000 (EUR 32,320) for failing...
[RU] Liability for violation of “truth protection”
On 24 April 2022, certain amendments to the Code of the Russian Federation on Administrative Offences that had been adopted by the State Duma on 6 April and signed into law on 16 April 2022, entered into force. They relate, in particular, to the ban on public denial (including in the media and on the Internet) of the “decisive role of the Soviet people in the defeat of Nazi Germany and the humanitarian mission of the USSR in the liberation of European countries.” Such a ban had been introduced earlier as Article 6.1 of the 1995 Federal Statute “On Perpetuating the Victory...
[UA] Efforts to counteract information aggression
On 24 February 2022, following the imposition of martial law in Ukraine, the National Council on Television and Radio Broadcasting (see IRIS 1997-8/20) relieved broadcasters of their content obligations for its duration, to enable them to focus on war-related content. On 25 February, the Ministry of Culture and Information Policy (see IRIS 2017-4/33) announced the launch of an “information marathon” with the participation of four national channels (three more channels joined the next day). The “marathon” presents a single round-the-clock programme, co-produced by the participating...