IRIS newsletter 2021-7
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)
Last month, two important copyright-related EU directives, the Directive on Copyright in the Single Market (DSM) and the Directive on television and radio programmes (Sat-Cab), reached their implementation deadline. While it is true that not all member states have yet implemented them, this is partly due to delays forced by the COVID-pandemic. Germany, for example, adopted its implementing law just before the deadline; Denmark adopted a partial transposition that entered into force just in time to meet the deadline, while there are still other countries lagging behind. Two facts may also have had an impact in this delayed transposition: first, the European Commission took its time in delivering the highly expected Guidance on Article 17 DSM, concerning the responsibilities of online content sharing platforms; second, there is a pending judgment of the Court of Justice of the European Union (CJEU) in the case C-401/19 that will have implications for the implementation by the Member States of said Article 17. In fact, in the words of the Commission, the Guidance may need to be reviewed following that judgment. Interestingly, while waiting for this decision, the CJEU has further clarified the liability of video sharing platforms in the Google/Cyando case.
Beyond copyright issues, last month saw the Council of Europe Conference of Ministers responsible for Media and Information Society, entitled, ‘Artificial Intelligence – Intelligent Politics: Challenges and opportunities for media and democracy’, in which a Final Declaration and four Resolutions were adopted. In passing, if you are interested in how artificial intelligence is applied in the audiovisual sector, you can watch this entertaining video presentation of our IRIS Special, which you can read here.
You can read about these and many other developments in our electronic pages.
More than ever, we wish you a relaxing summer break!
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
CoE: Ministers Responsible for Media Policies
Ministerial Conference on Artificial Intelligence, Media and Democracy
The Council of Europe Conference of Ministers responsible for Media and Information Society, entitled, ‘Artificial Intelligence – Intelligent Politics: Challenges and opportunities for media and democracy’, organised jointly with the Republic of Cyprus, was held online on 10-11 June 2021. The previous ministerial conference on similar issues (‘Freedom of Expression and Democracy in the Digital Age: Opportunities, Rights, Responsibilities’) was held in Belgrade in 2013 (see IRIS 2014-2:1/3). Participating ministers in the Conference adopted a Final Declaration and...
European Court of Human Rights (Grand Chamber): Big Brother Watch and Others v. the United Kingdom
On 25 May 2021 the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its long awaited judgment on bulk interception of personal data and mass surveillance by security and intelligence services in the case of Big Brother Watch and others v. the United Kingdom. After its Chamber judgment of 13 September 2018 (IRIS 2018-10/1) the case was referred to the Grand Chamber of the ECtHR. The Grand Chamber judgment elaborates a general framework of principles regarding bulk interception and confirms that the UK regime of interception of communications not only violates the privacy rights...
European Court of Human Rights (Grand Chamber): Centrum för Rättvisa v. Sweden
In a judgment of 19 June 2018, the Third Section Chamber of the European Court of Human Rights (ECtHR) found that the bulk interception of electronic signals in Sweden for foreign intelligence purposes, on the basis of Swedish Signals Intelligence Act, did not violate the right to privacy and correspondence under Article 8 of the European Convention on Human Rights (ECHR), nor the right to an effective remedy under Article 13 ECHR (see IRIS 2018-8/3). After referral, the Grand Chamber of the ECtHR in its judgment of 25 May 2021 came to the final conclusion that the Swedish bulk interception regime...
Court of Justice of the EU: Case Google/Cyando
On 22 June 2021, the Grand Chamber of the Court of Justice of the EU (CJEU) issued a judgment on the joined cases C‑682/18 and C‑683/18. The case concerned several infringements of the intellectual property rights held by Mr Peterson and Elsevier committed by users of the video‑sharing platform operated by YouTube and the file-hosting and -sharing platform operated by Cyando, respectively. The judgment follows the German Bundesgerichtshof (Federal Court of Justice) request for a preliminary ruling concerning the interpretation of Article 3(1) and Article 8(3) of the InfoSoc Directive, of Article...
European Commission: Spain needs to recover incompatible aid from certain DTT operators
On 10 June 2021, the European Commission concluded that the aid received by terrestrial operators for the digitisation and extension of the terrestrial television network in remote areas of Spain was against EU State aid rules. Following the annulment of a 2013 Commission decision (see IRIS 2013-7/5) by the Court of Justice for inadequate reasoning as to the selectivity of the measure (see IRIS 2018-2/5), an additional in-depth investigation confirmed that the measures adopted by Spain between 2005 and 2008 to facilitate the switch from analogue to digital television constituted incompatible...
EU: European Commission
European Commission: Guidance on Article 17 of Directive on Copyright in the Digital Single Market
On 4 June 2021, the European Commission released its Guidance on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market (DSM). According to the Commission, the aim of this guidance is to support a correct and coherent transposition of Article 17 across the member states, paying particular attention to the need to balance fundamental rights and the use of exceptions and limitations, as required by Article 17(10). The guidance could also be of assistance to market players when complying with national legislations implementing Article 17. Among the issues clarified by the...
European Commission: Decision to suspend broadcast of Rossiya RTR in Latvia compatible with AVMS Directive
On 7 May 2021, the European Commission delivered an important decision, finding that the Latvian National Electronic Mass Media Council’s 12-month suspension of the television channel Rossiya RTR in Latvia, due to incitement to violence or hatred, was compatible with the EU’s Audiovisual Media Service Directive (AVMDS). This follows a recent EU Court of Justice judgment on restricting transmissions of broadcasts from other EU member states on the basis of incitement to hatred (IRIS 2019-8/3), and earlier European Commission decisions on this issue (see IRIS 2018-7/7 and IRIS 2017-6/5)....
[BG] Court practice on the prohibition of surreptitious commercial communication
By Penalty Decree No. РД-10-2-15.01.2019 Съвет за електронни медии (the Council for Electronic Media - CEM) has imposed a sanction of the amount of BGN 3 000 on Българско национално радио (the Bulgarian National Radio – BNR) for violation of Article 75, paragraph 1, second sentence of the Закон за радиото и телевизията (the Radio and Television Act - RTA) for broadcasting a surreptitious commercial communication. The reason for this was a song performed by children within a children programme on the radio channel Радио София (Radio Sofia). What triggered the events is that the text of...
[BY] Media legislation tightened
The Parliament of Belarus has recently adopted a number of significant amendments to media law, law on assembly, and criminal law of the country. They were introduced to Parliament by the Council of Ministers on 31 March and 9 April 2021 and adopted less than two months later, on 26 May 2021. The Statute “On amending legislation in the sphere of mass media” introduces new provisions to the 2008 Statute “On the Mass Media” (see IRIS 2008-8/9). They include, among others, (1) general restrictions on the establishment of new mass media outlets by persons who were previously...
[DE] Bundestag adopts revised Film Support Act
On 20 May 2021, the German Bundestag (lower house of parliament) adopted the Gesetz zur Änderung des Filmförderungsgesetzes (Act amending the Film Support Act, doc. 10/27515). This so-called ‘minor amendment’ is designed to provide further guidance on the collection and use of the film levy and to adapt the Act to current pandemic-driven changes to market conditions. At the same time, it places greater focus on ecological aspects of the film production support mechanism. The Filmförderungsgesetz (Film Support Act – FFG) regulates the financial support provided...
[DE] Bundestag finally approves Copyright Act amendment
On 31 May 2021, the German Bundestag (lower house of parliament) adopted the federal government bill of 12 February 2021 bringing the copyright law into line with the requirements of the Digital Single Market. The new legislation is designed to implement the Digital Single Market Directive (DSM Directive (EU) 2019/790). The main purpose of the bill is to reform the copyright liability of online platforms. Under its provisions on platform liability and extended collective licences, new legal instruments are introduced in German copyright law. It also amends numerous provisions of the Urheberrechtsgesetz...
[DE] Injunction claim against future broadcasting of scenes from “Die Auserwählten” rejected
In a decision of 18 May 2021 (case No. VI ZR 441/19), the Bundesgerichtshof (Federal Supreme Court – BGH) ruled that the plaintiff was not entitled to an injunction against future broadcasting of scenes from the film “Die Auserwählten” in order to protect his own image rights and dismissed his application. The legal dispute was linked to sexual abuse suffered over a period of several years by the plaintiff, among others, as a pupil at the Odenwaldschule in the 1980s. Since 1998, he had been trying to raise awareness of the abuse through the press and by participating in...
[DE] Price increase clause in Netflix terms and conditions is unlawful
In a decision of 15 April 2021, the Bundesgerichtshof (Federal Supreme Court – BGH) rejected a complaint from Netflix about a court’s refusal to hear its appeal against a lower-instance decision concerning the general terms and conditions of the video-on-demand service and certain advertising practices in Germany. As a result, the previous ruling of the Berliner Kammergericht (Berlin Court of Appeal) of 20 December 2019 (5 U24/19) became final, forcing Netflix, among other things, to amend the clause in its terms and conditions regarding price increases which, at least where its service...
[DK] Partial transposition of the DSM Directive
On 3 June 2021 Denmark passed a bill in parliament, whereby the DSM directive Article 15 on press publications and Article 17 on online content-sharing service providers plus the SatCabII directive are implemented in the Danish Copyright Act. The key concept of the new legislation is rights clearance. Going further than the SatCabII directive, the new legislation also introduces a possibility of clearing rights via extended collective licensing when TV distributors and other third parties redistribute independent streaming services, i.e. non-broadcaster streaming services, such as Netflix, HBO...
[FR] CNIL issues formal notices to 20 organisations in breach of new rules on cookies
On 25 May 2021, the Commission nationale de l'informatique et des libertés (French data protection authority – CNIL) announced that it had issued 20 formal notices to organisations, including international players in the digital economy and public bodies, for breaching the new rules on cookies. On 1 October 2020, the CNIL had published its guidelines and a new recommendation on consent to targeted advertising and the use of trackers in order to implement the principles of the General Data Protection Regulation (GDPR), which include the need to obtain explicit consent to collect...
[FR] CSA issues CNews with formal notice concerning unbalanced airtime access for regional election candidates
The Conseil Supérieur de l'Audiovisuel (French audiovisual regulatory body – CSA) recommendation of 4 January 2011 concerning the principle of political pluralism on radio and television during election periods, which applied to all television services from 10 May 2021, required five weekly surveys to assess the amount of speaking time allocated to different candidates in the run-up to the first round of regional elections held on 20 and 27 June 2021. The various lists of candidates were entitled to fair access to airtime during the period concerned. The CSA takes into account...
[FR] Editorial reporting and opinion-based journalism: Council for Ethical Journalism issues two opinions on TV news programmes
On 26 May 2021, the Conseil de déontologie journalistique et de médiation (Council for Ethical Journalism and Mediation – CDJM), a self-regulatory body, published four new opinions, two of which concerned well-known television and radio journalists. Since it was created in December 2019, the CDJM has received 407 referrals from members of the public regarding 164 different journalistic activities. It has issued an opinion in 34 of these cases, including the two described below, and dismissed 111, while 19 are still pending. In the first case, the CDJM received a complaint...
[FR] Reassignment of Ligue 1 TV rights: competition authority rejects Canal Plus complaint against LFP
On 29 January 2021, the Canal Plus Group complained to the French competition authority about practices allegedly used by the Ligue de Football Professionnel (Professional Football League – LFP) when retendering the rights to broadcast Ligue 1 football matches following the collapse of Mediapro in January 2021. It accused the LFP of abusing its dominant position by only retendering the rights held by Mediapro without including those in package 3 (covering matches shown at 9pm on Saturdays and 5pm on Sundays) that had been awarded on 29 May 2018 to beIN Sports and subsequently sold on to Canal...
[IS] A media support scheme for private media
On 25 May 2021 the Icelandic Parliament agreed to provide financial state support to private media companies. With amendments made to the Media Act No 38/2011, state funding will provide for ad hoc subsidies to private media companies, covering part of their editorial costs for the dissemination of news, and news related content, and also the cost of social issues coverage. All private news media service-providers, tv, radio, print and web media, can apply to receive the media subsidies but will have to fulfil certain criteria put forth in the newly amended Media Act. The total funding...
[IT] Administrative Court orders RAI to allow access to documents related to journalistic investigation
On 18 June 2021, the Lazio Administrative Court (TAR Lazio, section III) ruled on a request lodged by an Italian lawyer against RAI, concerning the access to some documents related to a journalistic investigation carried out by “Report”, a popular TV show on RAI 3. According to the applicant, the investigation shed a negative light on his professional activities, depicting him as the person behind the unclear management of public funding by some local public bodies and some of their advisors. Therefore, he asked RAI to be granted access to the documents on which the investigation...
[IT] Public consultation on the parental control system in the electronic communications field
With the decision No. 160/21/CONS published on 7 June 2021, the Italian Authority for Communications (Agcom) launched a public consultation on the parental control system in the electronic communication field, pursuant Article No. 7-bis entitled “Protection system for minors from the risk of cyberspace”, provided by the Law Decree No. 28 of 30 April 2021. The abovementioned rule lays down that the electronic communication supply contracts – including television operators - must provide free and “activated by default” parental control systems, able to filter inappropriate...
[LT] Supreme Administrative Court on surreptitious advertising
On 5 May 2021, Lithuania's Supreme Administrative Court confirmed that the republishing of a private company’s press release can constitute surreptitious advertising. The case was initiated by the complaint of a private person P.P., asking whether the news media outlet UAB 15min have disseminated surreptitious advertising by publishing the article: "New travel trends: all-inclusive or everything unexpected?". In this article the media outlet basically republished the press release of the travel agency UAB Baltic Tours Group, thus P.P. claimed that this is surreptitious...
[NL] New law on online gambling and media advertising
On 1 April 2021, an important new law on online gambling and gambling advertising (Online Gambling Act) (Wet Kansspelen op afstand) came into force, including notable amendments to the Dutch Media Act (Mediawet) (see IRIS 2021-1/24). Due to the difficulty of regulating increasingly popular (illegal) foreign gambling websites, the Dutch parliament enacted a legal response. With this new law, the ban on online gambling and the advertising of gambling has been lifted to improve regulation of the market. With the amendment to the Dutch law on gambling, gambling service providers can now request a permit...
[NL] New support measures for film industry following easing of COVID-19 restrictions
On 27 May 2021, the Netherlands Film Fund (Nederlands Filmfonds), the national agency responsible for supporting film production and film-related activities in the Netherlands, launched an important new scheme of support measures for the film industry in the Netherlands. This followed the announcement by the Dutch government that COVID-19 restrictions on cinemas and movie theatres in the Netherlands would be eased from 5 June 2021, with cultural institutions such as theatres, cinemas and concert halls being allowed to open for a maximum of 50 visitors per room (for previous measures, see IRIS 2020-5/18,...
[RO] Prorogation of the analogue radio switchover
The President of Romania, Klaus Iohannis, promulgated on 13 May 2021 the Law on the approval of Government Ordinance No. 5/2019 for the extension of a term in order to ensure the continuity of public services of radio programs on the territory of the country. (see inter alia IRIS 2011-4/33, IRIS 2013-6/30, IRIS 2014-4/26, IRIS 2014-5/29, IRIS 2014-9/27, IRIS 2015-5/33, IRIS 2016-2/26, IRIS 2017-1/29, and IRIS 2019-4/30). The President promulgated the Law on the approval of Government Ordinance No. 5/2019 for the extension of a term provided in article 2 (1) of Government Emergency Ordinance...
United States of America
[US] Facebook bans Trump for 2 years
Former U.S. President Donald Trump has been banned from Facebook for two years. In a blog post sharing the decision on 4 June 2021, Facebook committed to being more transparent about content moderation decisions, and about how such decisions impact individuals. Account holders will now be able to see if and when any of their content was removed, why, and what the penalty was. However, Facebook also called for “thoughtful regulation” from legislators, and explained that its internal policies were not a replacement for such legislation. By way of background to the present case, a violent...