IRIS newsletter 2021-10
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
© 2021 European Audiovisual Observatory, Strasbourg (France)
The work of the European Audiovisual Observatory resembles the cultivation of a field: it takes time and effort, but then comes the rewarding harvest. In the present case, we have recently reaped the fruits of months of incessant toil in the following form:
- a Mapping report on the rules applicable to video-sharing platforms with regard to illegal and harmful content, which covers the different approaches of the EU27 countries plus the UK and Norway.
- an in-depth publication titled Unravelling the Digital Services Act Package which aims at complementing and expanding the discussions in our series of webinars dealing with topics directly affected by this new proposed legislation and its interplay with existing regulation (content moderation, copyright protection, gatekeeping VOD services, fight against disinformation).
- a new version of our AVMSDatabase, which allows interactive searches across the national transpositions of the revised Audiovisual Media Services Directive in the EU member states. A first set of nine countries is available today (AT, BG, FI, HU, LT, LV, MT, PT and SE), the national rules of the remaining EU member states will be gradually fed into the AVMSDatabase as soon as they are available.
- Our AVMSD Tracker shows the progress in the transposition process for all the EU27 countries and is integrated with complete correspondence tables and easy reading info-sheets with the highlights for the first set of nine countries.
Needless to say, we are not the only ones labouring in the audiovisual field: by way of example, the European Parliament has adopted a resolution on the European Media and Audiovisual Plan, Spain has transposed two Copyright directives, France has created a new regulatory authority, Italy’s AGCOM has taken action concerning the webcasting of the Serie A Championship, and the UK’s Ofcom has published its research on offensive language on TV and radio.
We are rounding off this year but already preparing for new challenges in 2022 by expanding our team: maybe you know a young professional interested in media law who would like to join the Department for Legal Information at the Observatory? Or maybe you are the one? Take a look at our vacancy! The deadline for applications is 30 November
You can read about these and many other interesting developments in our electronic pages. As usual the Newsletter will take a break until the end of the year, so I take the opportunity to wish you all a very good Festive Season ahead!
Stay safe and enjoy your read!
Maja Cappello, editor European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Volodina v. Russia (No. 2)
In a case about domestic violence in Russia, the European Court of Human Rights (ECtHR) emphasised the State’s obligation to protect people from acts of cyberviolence — including the publication of intimate photographs without consent, stalking and impersonation — and to carry out an effective investigation into these acts. The case concerns Ms. Valeriya Volodina's allegation that the Russian authorities had failed to protect her against repeated cyberviolence by her partner who had created fake profiles in her name, published intimate photos of her, tracked her movements...
EU: European Commission
Commission sends reasoned opinion to nine EU member states over lack of implementation of the revised AVMS Directive 2018
On 23 September 2021, the European Commission announced that it had sent a “reasoned opinion” to nine EU member states (Czechia, Estonia, Ireland, Spain, Croatia, Italy, Cyprus, Slovenia and Slovakia) for failing to provide information about the implementation of the revised Audiovisual Media Services Directive 2018 (AVMS Directive) (see IRIS 2019-1/3) into their national law. Notably, the revised AVMS Directive had been 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...
EU: European Parliament
European Parliament: Resolution on European Media and Audiovisual Plan
On 20 October 2021, the European Parliament adopted a resolution on Europe’s Media in the Digital Decade: an Action Plan to Support Recovery and Transformation. The Action Plan (see IRIS 2021-2/3) focuses on three areas of activity and 10 concrete actions, with the overall aim of helping the media sector recover from the crisis. This will be achieved by facilitating and broadening access to financial support, transforming by stimulating investments to embrace the twin digital and green transitions, while ensuring the sector's future resilience, and empowering European citizens and companies. In...
[CY] A legal proposal for abolishing media ownership restrictions
A proposal for amending Article 19 of the Law on Radio and Television Organisations N.7(I)1998, regulating ownership, has been made by a deputy of the Δημοκρατικό Κόμμα (Democratic Party – DIKO]. The proposal would bring drastic changes to the system of restrictions on ownership, and the Parliamentary Committee on Internal Affairs of the House of Representatives is expected to discuss it soon. Legal restrictions currently in force provide for a system of "share-holding ceilings" for legal or natural persons...
[DE] Several public service broadcasters introduce three-step test for telemedia services under Article 32(5) MStV
Alongside their traditional offer of radio and television channels, German public service broadcasters are increasingly providing telemedia offers in accordance with Article 27 of the Medienstaatsvertrag (state media treaty – MStV). According to Article 30(2) MStV, such offers particularly include “broadcasting of their programmes on demand before and after their scheduled broadcasting”, sometimes with time limitations, e.g. for sports events, “as well as independent audiovisual content”, and “historical/cultural archives with informative, formative and cultural...
[DE] Cable operator’s compensation claim for anti-competitive non-payment of fees upheld
In a ruling of 6 July 2021 (case no. KZR 11/18), the Kartellsenat (Cartel Division) of the Bundesgerichtshof (Federal Supreme Court – BGH) decided that a public service broadcaster’s failure to pay feed-in fees to a cable network operator breached the anti-discrimination rules of the Gesetz gegen Wettbewerbsbeschränkungen (Act Against Restraints of Competition – GWB) and therefore created a compensation liability if (and because) payments were made to other cable network operators. In a previous case, the BGH followed an action brought by a cable network operator to the...
[DE] German court rules that YouTube’s deletion of COVID-19 videos was unlawful
In a press release of 12 October 2021, the Landgericht Köln (Cologne regional court – LG Köln) announced that it had decided in summary proceedings (case nos. 28 O 351/21 and 28 O 350/21) that YouTube had unfairly deleted two user-generated videos, featuring reports and interviews concerning COVID-19, on the basis of its general terms and conditions. As part of the “#allesaufdentisch” campaign, which went viral at the end of September this year, various German artists uploaded onto the YouTube video-sharing platform video clips of interviews with comments by so-called...
[DE] October entry into force for NetzDG appeal procedure
On 1 October 2021, new rules establishing an appeal procedure for social networks and video-sharing platform services entered into force in Germany. The rules were introduced as part of the latest reform of the Netzwerkdurchsetzungsgesetz (Network Enforcement Act – NetzDG) under the Gesetz zur Änderung des Netzwerkdurchsetzungsgesetzes (Act to Amend the Network Enforcement Act) of 3 June 2021. For video-sharing platform services, the appeal procedure has been applicable to user-generated videos and programmes since 28 June 2021. Since 1 October 2021, as well as social networks, video-sharing...
[ES] CNMC analyses proposals to market football broadcasting rights
On 19 October 2021, the Spanish regulator Comisión Nacional de los Mercados y la Competencia (CNMC) approved three reports in which it analysed the conditions proposed by the National Professional Football League (LNFP) for marketing the broadcasting rights of the Liga championship for the coming seasons in national territory and in international markets. These reports are issued pursuant to Article 4 of the Royal Decree-Law 5/2015 which regulates the conditions for joint marketing of rights to exploit audiovisual content of professional football competitions. In its report on the exploitation...
[ES] Transposition of Copyright Directives
On 2 November 2021, the Council of Ministers adopted a Royal Decree-Law transposing into Spanish law Directive (EU) 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive). The Royal Decree-Law recognises a new related right for press publishers and authors. This is a right in its own right, held by publishers of press publications...
[FR] Access for minors to pornographic websites: ARCOM’s powers stipulated by decree
Decree no. 2021-1306 of 7 October 2021 sets out the conditions for the application of the intervention measure devolved to the French audiovisual regulator (CSA, now known as ARCOM) under Article 23 of the Law of 30 July 2020 with regard to providers of online public communication services that allow minors to access pornographic content in violation of Article 227-24 of the Penal Code. Incorporated in the Law on Domestic Violence, this provision aims to protect minors from exposure to pornographic content. Therefore, if a provider of an online public communication service is found to be allowing...
[FR] Agreement signed between authors and producers on model clauses for cinema contracts
On 11 October, following the signature of a similar agreement with audiovisual producers at the Festival de la Rochelle in September, professional authors’ organisations including the SACD, ARP, FAMS and ACID, along with representatives of the cinematographic production industry (API, SPI, UPC), signed, in the presence of the French Minister of Culture, a professional agreement establishing model clauses designed to protect copyright in cinema contracts. This collective agreement provides film authors with the assurance that principles relating to the fixing of their remuneration (proportional...
[FR] Collecting society for press neighbouring rights established
Two years after the Lsaw of 24 July 2019 (no. 2019-775) was adopted, Europe’s first collective management body dedicated to the management of neighbouring rights of press publishers and agencies was established in France on 26 October. Chaired by Jean-Marie Cavada, a former MEP who was heavily involved in the adoption of the EU Directive on copyright and related rights in the Digital Single Market, the société des Droits Voisins de la Presse (Press Neighbouring Rights Collecting Society – DVP), which was launched on the initiative of the FNPS, SEPM and SPIIL press unions,...
[FR] Refusal of request for Internet access providers to block pornographic websites accessible to minors
Two child protection organisations filed a motion for a summary hearing in the hope that the courts would order France’s largest Internet access providers to take appropriate measures to block access to nine pornographic websites. Their claims were based, firstly, on the provisions of Article 6-I-8 of the Law on Confidence in the Digital Economy (LCEN) of 21 June 2004, and secondly on the provisions of Article 835(1) of the Code of Civil Procedure. They were not, however, based on Article 23 of Law no. 2020-936 of 30 July 2020, which assigns jurisdiction in the dispute to the president of...
[FR] Regulatory Authority for Audiovisual and Digital Communication (ARCOM) officially established
The hotly anticipated law on the regulation and protection of access to cultural works in the digital age has been promulgated, six months after it was presented to the Council of Ministers. The text incorporates some of the provisions of the bill on audiovisual communication and cultural sovereignty in the digital age that was tabled by the government in late 2019, examination of which was interrupted by the health crisis. The law has two main objectives. Firstly, in Chapters 1 and 2, it provides for the creation of the Autorité de régulation de la communication audiovisuelle...
[GB] Ofcom publishes its research on offensive language on TV and radio
On 22 September 2021, Ofcom, the UK’s communications regulator, published its latest research into people’s attitudes towards offensive language on scheduled TV and radio. The findings provide an insight into how audiences feel about language they might encounter in programmes they watch or listen to. A mixed-methods approach was adopted for this research. A quantitative strand captured spontaneous responses on the acceptability of 186 words, whereas the qualitative survey comprised 37 online discussion groups and 25 depth interviews involving participants from a variety of locations...
[IT] AGCOM intervenes in the broadcasting of the Italian Serie A Championship on the DAZN platform
This year, the OTT platform DAZN, operating under German authorisation, has acquired the audiovisual rights to the Italian Serie A Championship, obtaining the possibility of broadcasting all Serie A football matches (380 in total) for three years (2021-2024), of which 70% would be broadcast on an exclusive basis. The Autorità per le Garanzie nelle Comunicazioni (Authority for Communications Guarantees — AGCOM) welcomed the web-broadcasting of such a major sporting event in Italy as an important step towards the digitalisation of the country. It also pointed out that this represented...
[LT] The Supreme Administrative Court sets guidelines for publishing personal information on popular top richest listings
This case relates to a popular article published annually about the richest people in Lithuania. The article discusses the people included in the list, identifies their possible wealth, and analyses their dynamic through the years. The article in this case identified the richest woman in Lithuania – Ms. A – who had complained to the Žurnalistų etikos inspektoriaus tarnyba (Office of the Inspector of Journalist Ethics — the Defendant) about a breach of the Visuomenės informavimo įstatymas (Law on the Provision of Information to the Public — the Law) and the General Data...
[NL] Broadcaster’s news and opinion website is not subject to objectivity rules
On 1 October 2021, the Rechtbank Midden-Nederland (District Court of Midden-Nederland — the Court) delivered a notable judgment on the media standards applicable to news and opinion websites operated by broadcasters. Notably, the Court laid down important principles on the freedom of broadcasters to criticise public figures, including in online news articles, and refused to order a rectification against a broadcaster sought by a public figure over various online articles. The case involved a well-known activist who campaigns against Covid-19 measures implemented by the Dutch government,...
[NL] LinkedIn ordered to restore Dutch politician’s account closed over COVID-19 disinformation
On 6 October 2021, the Rechtbank Noord-Holland (District Court of Noord-Holland - the Court) delivered a significant judgment on the issue of politicians’ social media accounts and ordered the online platform LinkedIn to restore the account of a Member of Parliament (MP) that had been closed under its COVID-19 disinformation policy. However, the Court refused to order that LinkedIn reinstate specific posts concerning COVID-19 published by the politician which had been removed. The case involved Mr. Wybren van Haga, a Dutch politician and member of theTweede Kamer (House of Representatives),...
[RU] Fines amass as social networks violate law
On 8 November 2021, Justice of the Peace T.Vakhrameev in Moscow issued two resolutions in relation to violations by social networks of Article 13.41 (paragraph 2) of the Code of Administrative Offences of the Russian Federation. Under the provisions of the Code, a failure to comply with the requirement of Roskomnadzor (the Federal Service for Supervision of Communications, Information Technology and Mass Media) to block access to information banned in Russia or to remove information recognised as illegal in Russia under the Federal Statute “On Information, Information Technologies and...