IRIS newsletter 2019-1

Publisher:

European Audiovisual Observatory
76, allée de la Robertsau
F-67000 STRASBOURG

Tel. : +33 (0) 3 90 21 60 00
Fax : +33 (0) 3 90 21 60 19
E-mail: obs@obs.coe.int
www.obs.coe.int

Comments and Contributions to: iris@obs.coe.int

Executive Director: Susanne Nikoltchev

Editorial Board:

Maja Cappello, Editor • Francisco Javier Cabrera Blázquez, Sophie Valais, Julio Talavera Milla,  Deputy Editors (European Audiovisual Observatory)

Silvia Grundmann, 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

E-mail: alison.hindhaugh@coe.int

Translations:

Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Paul Green • Katherine Parsons • Marco Polo Sarl • Nathalie Sturlèse • Erwin Rohwer • Ulrike Welsch

Corrections:

Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais et Francisco Javier Cabrera Blázquez • Aurélie Courtinat • Barbara Grokenberger • Jackie McLelland • James Drake

Distribution: Nathalie Fundone, European Audiovisual Observatory

Tel.: +33 (0)3 90 21 60 06

E-mail: nathalie.fundone@coe.int

Web Design:

Coordination: Cyril Chaboisseau, European Audiovisual Observatory • Development and Integration: www.logidee.com • Layout: www.acom-europe.com and www.logidee.com
ISSN 2078-6158

© 2019 European Audiovisual Observatory, Strasbourg (France)

Editorial

This first newsletter of the year comes with a plethora of interesting articles which deal with many different topics. Certainly, the most important development in the previous weeks has been the adoption of the revised Audiovisual Media Services Directive (AVMSD). In a very telling way, the title of the revised directive hints at the amendments being introduced “in view of changing market realities”. And indeed, there have been market changes since the adoption of the original AVMSD in 2010, notably in the way people access audiovisual content. Obviously, these changes pose new regulatory questions. For example, does a video channel operated for promotional purposes on the YouTube Internet platform constitute an audiovisual media service in the sense of the AVMSD? In response to this question, the German Federal Supreme Court answered with a clear nein in September. Are live streams provided by the digital version of a newspaper to be considered broadcasting? Again, the answer in German is nein, according to the Berlin Administrative Court’s ruling of October.

As market developments have changed the way people access audiovisual content, so too have they changed the way the same content is distributed. The traditional system of media windows regulating when a film appears on cinema screens, TV or video, has been subject to changes in different countries. Even though this system is mostly self-regulated by the industry, there are countries in which the state still intervenes. This is now the case in Italy, where the Minister of Cultural Heritage and Activities announced an upcoming Ministerial Decree which will represent the first regulatory intervention in Italy on theatrical windows. In France, the signature of an agreement between cinema organisations and Canal+ will pave the way for a new system of media windows.

Market changes have also allowed for so-called “fake news”. To counter this worrying phenomenon, representatives of online platforms, leading social networks, advertisers and the advertising industry have agreed on a self-regulatory Code of Practice to address the spread of online disinformation and fake news. At legislative level, France has adopted a set of laws aimed at fighting against the manipulation of information, despite claims that the new legislation impinges upon freedom of expression. And on the subject of restrictions to this fundamental right, the European Commission published its proposal for a Regulation on preventing the dissemination of terrorist content online.

We also report on two interesting cases concerning blasphemy, which is a restriction of freedom of expression in order to protect religious freedom. In Ireland, the criminal offence of blasphemy was recently removed from the Irish Constitution after a referendum on this matter. From now on, the publication or utterance of blasphemous matter in Ireland shall not be an offence punishable by law. Also, a recent judgment of the European Court of Human Rights dealt with the issue of blasphemy in Austria, where this is still a criminal offence. The Strasbourg court decided in E.S. v. Austria that expressions that go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance – for example in the event of an improper or even abusive attack on an object of religious veneration – may be legitimately considered as incompatible with respect for the freedom of thought, conscience and religion, as protected by Article 9 of the European Convention on Human Rights.

You will find all this and much more in the pages of our publication, which we hope will make the start of your year a very exciting one. And if you still have enough energy left to read, I recommend our latest IRIS Plus on “The legal framework for international co-productions”.

Maja Cappello, editor
European Audiovisual Observatory

International

COUNCIL OF EUROPE

Over the last 25 years the European Court of Human Rights (ECtHR) has been regularly asked to decide whether specific interferences with certain forms of religion, or specifically worded insults directed at a religion or the spreading of religious enmity were protected under the right to freedom of expression established by Article 10 of the European Convention on Human Rights (ECHR) (see, inter alia, Otto-Preminger Institut v. Austria, IRIS 1995-1/1; Wingrove v. the United Kingdom, IRIS 1997-1/8; I.A. v. Turkey, IRIS 2005-10/3; Giniewski v. France, IRIS 2006-4/1; Tatlav v. Turkey, IRIS 2006-7/2;...

In a new judgment with regard to Internet content, the European Court of Human Rights (ECtHR) found that a criminal conviction for insult was a justified interference with the right to freedom of expression as guaranteed under Article 10 of the European Convention on Human Rights (ECHR). The case of Annen (No. 6) v. Germany concerns a conviction for posting a press release on the Internet and distributing leaflets with insulting statements about a German professor at the University of Bonn, professor B., who was conducting embryonic stem cell research. Annen is a campaigner against abortion and...

EUROPEAN UNION

On 26 November 2018, the EU Commission initiated proceedings for infringement of the Treaty on the Functioning of the European Union against 17 member states for non-compliance with the Directive requiring the transposition into national law of the Marrakesh Treaty (Directive (EU) 2017/1564) (see IRIS 2017-9/4 and IRIS 2016-9/4). The Marrakesh Treaty is a WIPO-administered convention that was signed on 27 June 2013 and entered into force on 30 September 2016, after the first 20 ratifications. The Treaty facilitates access to print works in formats adapted for persons who are blind, visually impaired...

On 28 November 2018, the consolidated text of the revised “Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (the Audiovisual Media Services Directive) in view of changing market realities” was published in the Official Journal of the European Union. The last substantive amendment to the Council Directive 89/552/EEC, subsequently codified by Directive 2010/13/EU...

On 9 September, 2018, the European Commission published its proposal for a Regulation on preventing the dissemination of terrorist content online. The proposal addresses the need for a higher level of protection against the misuse of the Internet to prepare, inspire and facilitate terrorist activity; to groom and recruit supporters; and to instil fear in the general public. The Regulation aims to overcome the limitations encountered by the EU Internet Forum, which was launched in December 2015 under the European Agenda on Security to stimulate the voluntary cooperation of EU member states and hosting...

On 6 November 2018, the European Commission announced its approval, under the EU Merger Regulation, of Walt Disney Company’s proposed acquisition of 21st Century Fox Inc., subject to compliance with certain commitments. Walt Disney Company and 21st Century Fox Inc. are both US-based global media companies, and both are primarily active in the distribution of films, the supply/licensing of audiovisual content, and the operation and wholesale supply of television channels. In the European Economic Area (EEA), both companies are active as providers of audiovisual content and television channels to...

Representatives of online platforms, leading social networks, advertisers and the advertising industry have agreed on a self-regulatory Code of Practice to address the spread of online disinformation and fake news. The ‘Code of Practice on Disinformation’, which was initiated by the European Commission, was published on 26 September 2018. The signing of this code represents a commitment for industry parties to implement a range of voluntary measures to counter the spread of disinformation and ‘fake news’ within the European Union. It is a non-legally binding agreement listing relevant measures...

NATIONAL

In accordance with Article 31(1) of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (the Universal Service Directive), the Belgian audiovisual regulatory authority (the Conseil supérieur de l’audiovisuel - CSA) recently issued an opinion on the review of “must-carry” obligations in the French-speaking part of Belgium. Under the directive, these obligations must be reviewed periodically. The CSA’s most recent consolidated review had been conducted in 2014. As part...

An amendment to the Law on the Compulsory Deposit of Printed and Other Works and the Announcement of the Distributors and Providers of Media Services was published in issue 94 of State Gazette (dated 13 November 2018). Such “distributors” and “providers” are (i) public and commercial providers of media services under the Radio and Television Act and (ii) online news service providers (electronic newspapers, magazines, news agencies and other electronic publications, excluding social networks - such as Facebook and Twitter - and personal blogs). By 30 June each year, each provider must submit to...

On 17 September 2013, the Broadcasting Council of the Czech Republic issued decision no. 4143/2013 (pursuant to Section 8a (2) (g) and 8a (6) b) of Act no. 40/1995 Coll., on advertising regulation), establishing setting a fine of CZK 250000 (EUR 10000) for a breach of one of the rules laid down in section 5d (2) b) of the said law. The defendant, Biopol, broadcast a commercial during the teleshopping programme "Sunday Recipient Extra" on 11 November 2012 on the Prima television channel advertising the possible preventive and curative effect of a diet supplement (manufactured by Biopol), Barny's...

In a ruling of 18 October 2018 (case VG 27 L 364.18), the Verwaltungsgericht Berlin (Berlin Administrative Court - VG) upheld an emergency application from a publisher that sells the Bild newspaper and operates several Internet video services on the Bild website against a prohibition order issued by the Medienanstalt Berlin-Brandenburg (Berlin-Brandenburg media authority - mabb), which is responsible for monitoring broadcasting in the region. After a summary examination of the factual and legal elements of the case, in which the publisher’s interest in suspending the order was weighed against the...

In a judgment of 13 September 2018 (I ZR 117/15), the Bundesgerichtshof (Federal Supreme Court - BGH) decided that neither a video channel operated for promotional purposes on the YouTube Internet platform nor a video available on that channel constitute an audiovisual media service in the sense of the Audiovisual Media Services Directive (AVMSD - 2010/13/EU). In the specific case heard by the BGH, this meant that a video advertising new cars on a YouTube promotional channel had to contain information on the vehicles’ official fuel consumption and CO² emissions because the relevant obligation in...

At the #watchdog18 social media conference, the German Landesmedienanstalten (regional media authorities) presented a new “labelling matrix” for advertising in social media. The matrix contains recommendations for providers of content on YouTube, Instagram, Twitter and Facebook, for example, but also covers platforms such as Twitch and Pinterest for the first time. The guidelines, which were designed to provide practical advice in the field of influencer marketing, were introduced following an increase in infringements and court procedures linked to the inadequate labelling of advertising and product...

At 7 a.m. on 22 December 2017, the TV channel Canal Plus broadcast a programme about Togo, explaining in particular that this African state, in which Vincent Bolloré, the channel’s owner at the time, has numerous interests, has “modern infrastructure” and “an ambitious development policy that encourages investment from all over the world”. The programme, which was just under seven minutes long and resembled an “infomercial”, had not been listed in the schedule and did not contain any opening or closing credits. Viewers were therefore uninformed about its nature or its purpose. As a result, the...

On 29 October 2018 the national audiovisual regulatory authority, the Conseil Supérieur de l’Audiovisuel (CSA), published a report, which will be sent to the national parliament; the aim of the report is to assess the action taken by the audiovisual communication services in respect of (and to determine the level of compliance with the obligations contained in) its Food Charter. The principle of compiling a report on this area, in order to provide better information regarding television channels’ actions, was incorporated into the Act of 30 September 1986 by the Act of 20 December 2016, which abolished...

On 20 November 2018, having been firmly rejected twice by the Senate, draft ordinary and organic laws on the fight against the manipulation of information have been adopted following the final reading by the National Assembly. Under the new law, an emergency procedure can be used to stop the dissemination, during election campaigns, of “inaccurate or misleading allegations or statements likely to affect the sincerity of the vote” when they are “disseminated on a massive scale in a deliberate, artificial or automated manner via an online public communication service”. Digital platforms are also...

On 29 October 2018, France’s high authority for the broadcasting of works and the protection of rights on the Internet, the Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI), delivered its opinion on the effective implementation of the private copying exception with regard to television programmes received via the Molotov TV platform. It is HADOPI’s mission to ensure that the technical restrictions implemented by online services do not have the effect of depriving anyone of the effective benefit of the private copying exception. Molotov TV, which offers...

Discussions have been ongoing for the past few months between French television Canal+ and the country’s film-industry professional organisations regarding the channel’s future investment in French films. Canal+, the leading player in financing for French cinema (EUR 160 million 2017), has the benefit of exclusive “exploitation windows” in respect of the works that it pre-finances. After talks broke down a few weeks ago, an agreement hailed by the Ministry of Culture as “very positive for the entire branch” was finally reached on 6 November 2018. The provisions of the agreement include the renewal...

Channel 5 News, produced by Independent Television News Limited (ITN), was found in breach of rules 5.1 and 5.2 by Ofcom when its newscaster incorrectly stated during its bulletin on the 6th September 2018 that former Russian spy Sergei Skripal and his daughter, Yulia Skripal, who were victims of a Novichok (a nerve agent) attack which occurred in Salisbury, England on 4th March 2018, had died from their poisoning, when in fact they had survived. Furthermore, the news channel had failed to act quickly, taking over a week to broadcast a correction. Rule 5.1 of the Ofcom Code states: “News, in whatever...

The issue concerned the showing of an advertisement for a granola product placed by the Kellogg Marketing and Sales Company (UK) Ltd. The advertisement appeared between episodes of the Mr Bean cartoon. The complainant was the Obesity Health Alliance which argued that it was an ad for a product that was high in fat, salt or sugar (HFSS product) that was advertised in programmes commissioned for, principally directed at or likely to appeal to audiences below the age of 16. As such, it infringed the Broadcasting Committee of Advertising Practice’s (BCAP) Code rules 32.5. and 32.5.1, namely: These...

On 21 November 2018, the High Court of Justice in England held in EasyGroup Ltd v Easy Fly Express Ltd & Chowdhury that a court had erred in granting permission to serve the Claim Form and Particulars of Claim on the defendants outside the jurisdiction. This was because the claimant had no real prospect of establishing that the defendant had targeted the UK and EU markets. The claimant in this case was the well-known proprietor of several “easy-” prefixed registered UK and EU trademarks, including the words “EasyJet” and “easyFlights”, registered in relation to the transportation of goods by air....

On 1 November 2018, the Law Commission, an independent body set up by Parliament in 1965 to promote the reform of the law of England and Wales, published its Scoping Report on Abusive and Offensive Online Communications. The Commission reviewed the current criminal law in order to identify any gaps or deficiencies that cause problems in tackling online and social media-based abuse. Terrorism offences, liability of social media platforms, child sexual exploitation offences, online fraud and contempt of court were excluded from the scope of this review. The report analysed the scale of online offending...

The judiciary, national regulatory authorities, self-regulatory bodies, and media literacy programmes play an important role in combating hate speech in the media, as the international conference held in Zagreb on 6-7 November 2018 showed. The event was organised by the Council of Europe (CoE) and the Agencija za elektroničke medije (Croatian Agency of Electronic Media - AEM). It gathered together more than 130 participants and speakers from 28 CoE member states, the European Court of Human Rights (ECtHR) and UNESCO. The big tech industry was represented by the market leader, Facebook. The conclusions...

In October 2018, the Compliance Committee of the Broadcasting Authority of Ireland (BAI), by majority, upheld a complaint in part regarding a report of court proceedings broadcast by public service broadcaster RTÉ One on their Six-One News, a news programme broadcast each evening at 6.01 p.m. Under section 48 of the Broadcasting Act 2009, individuals may make a complaint to the Authority that a broadcaster failed to comply with the broadcasting codes. The complainant referred to a report of court proceedings at a district court in which the complainant appeared as the defendant. The complainant...

On 26 October 2018, a referendum was held in Ireland on whether the offence of blasphemy should be removed from the Bunreacht na hÉireann (Irish Constitution); 65% voted in favour and 35% voted against. As a result, Article 40.6.1 of the Irish Constitution no longer provides that the publication or utterance of blasphemous matter is an offence which shall be punishable by law. Following the referendum, the Irish Minister for Justice and Equality commented that the Irish people had sent a “message to the world - a strong message that laws against blasphemy do not reflect Irish values and that we...

On 25 September 2018, the Autorità Garante della Concorrenza e del Mercato(Italian Competition Authority - AGCM) condemned the Società Italiana degli Autori ed Editori(Italian Society of Authors and Publishers –SIAE) to pay a symbolic fine of EUR 1 000 for abusing its dominant position in breach of Article 102 TFEU in the markets for (i) the provision of services for the management of copyrights to authors; (ii) the licensing of copyrights to users; and (iii) the provision of services for the management of copyrights on behalf of foreign collecting firms. The AGCM alleges that, since at least 1...

On 14 November 2018, the Italian Minister of Cultural Heritage and Activities announced an upcoming Ministerial Decree - which he was about to sign  to be sent to the competent supervisory bodies - adopted pursuant to Law No. 220/2016 (see IRIS 2017-1/23), representing the first law intervention in Italy on theatrical windows. Until now, this matter was ruled in accordance with a well-established and largely respected practice, which the Decree enshrines, basically, into law. Firstly, it is worth highlighting that the scope of the Decree is limited to Italian works and that it does not include...

On 5 September 2018, the District Court of The Hague delivered its judgment in a class action lawsuit filed by several film producers against the Dutch State. The Court ruled that the Dutch State was liable for statements made by a former State Secretary for Security and Justice about the permissibility of reproducing material from illegal sources. The statements concerned the question of whether, under the implementation in Dutch law of the Directive 2001/29/EC (Copyright Directive), reproductions from illegal sources fell within the scope of the private copying exemption. In short, this exemption...

On 1 October 2018, the District Court of The Hague resolved a case concerning the question of whether two children - aged four and two - could be included in the video logs and messages (together: content) that their mother, a professional online influencer, had uploaded to and posted on her social media accounts. After considering the children’s best interests (Article 1:253a Dutch Civil Code (Burgerlijk Wetboek; DCC)), the Court ruled in the negative. Consequently, the Court ordered the mother to permanently delete all previously uploaded and posted content concerning the children. Moreover,...

On 14 November 2018, the Romanian Parliament validated seven new members of the Consiliul Naţional al Audiovizualului (National Audiovisual Council - CNA), the audiovisual watchdog (see, inter alia, IRIS 2015-10/27). The seven new members will occupy seats that have been left vacant. A seat was left vacant after the recent resignation of a CNA member, and six mandates expired on 20 December 2018. The new members are Cristina Pocora (appointed by the presidential administration), Răsvan Popescu (nominated by the Romanian Government), Nicolae Bălaşa, Monica Gubernat and Elena Sorescu (all three proposed...

The President of Romania, Klaus Iohannis, on 2 November 2018 promulgated Law no. 246/2018 on the modification and completion of the Audiovisual Law (no. 504/2002) on the protection of hearing-impaired persons. On the other hand, the Chamber of Deputies adopted on 14 November 2018 a modification to the Audiovisual Law’s provisions regarding the need to draw a clear distinction between opinions and facts within a broadcast or a programme that addresses health issues (see, inter alia, IRIS 2013-3/26, IRIS 2014-1/37, IRIS 2014-7/29, IRIS 2014-9/26, IRIS 2015-10/27, IRIS 2016-2/26, IRIS 2016-10/24,...

On 1 November 2018, Roskomnadzor (the Federal Service for Supervision in the Sphere of Telecoms, Information Technologies and Mass Communications - a governmental watchdog authority) (see IRIS 2012-8/36) - hosted a ceremony at which major Russian audiovisual content owners co-signed (along with providers of online search engines and owners of web resources that allow for video hosting) a memorandum that aims to strengthen the protection of intellectual property of online audiovisual products. A database of copyright-infringing webpages and audiovisual content in Russia is being established by content...

UNESCO

The thirteenth edition of the Annual Meeting of the Internet Governance Forum (IGF) took place at the UNESCO headquarters in Paris from 12 to 14 November 2018. This multi-stakeholder event, held under the guidance of the United Nations (UN), where states represented by their governments gather together with intergovernmental organisations, civil society and the private sector (hi-tech industry, press and media, among others) as well as with scholars and academics, aims at facilitating discussions about Internet governance. This year’s edition was marked by the governments’ willingness to engage...