IRIS newsletter 2019-3

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 • Brigitte Auel • 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

A conundrum shared by every media legislator in Europe nowadays is how to regulate freedom of expression in broadcasting and on the Internet. The challenges are indeed numerous, and the present newsletter bears witness to all of them. Take the so-called “fake news” phenomenon: in our electronic pages you will be able to read about the first reports by the signatories to the “Code of Practice on Disinformation”, signed in October 2018 by a number of global companies, namely Google Inc, Facebook Inc, Twitter Inc, and Mozilla Corp, and a number of trade associations representing online advertising companies, in order to identify actions that could be put in place to address the challenges related to “disinformation" online. You will also find material about two major reports: one by the European Regulators Group for Audiovisual Media Services (ERGA) concerning internal media plurality in the audiovisual area, and the other by the Media and Internet Governance Division of the Council of Europe on European practices of the regulatory authorities of electronic media regarding media literacy.

Another topic linked to freedom of expression that still gives courts of law a headache is that of copyright in the online environment. Here it seems that the “safe harbour” protection of Article 14 of the eCommerce Directive seems to be less safe than it used to be. For example, in Italy, the Court of Rome ruled Vimeo liable for multiple copyright infringements concerning audiovisual content on its platform. In a similar case, the District Court of Amsterdam ruled that Facebook did not fall within the scope of the safe harbour of Article 14 of the eCommerce Directive with regard to advertisements infringing a third party’s trademarks. In Germany, the Cologne Regional Court of Appeal decided that domain registrars are liable for copyright infringements on filesharing platforms if they fail to shut down a domain reported by a copyright holder.

Otherwise, if you want to read about the hottest topics of the moment, we report on Italy’s progress on drafting national strategies on artificial intelligence and blockchain, and on the latest Brexit news.

Enjoy your read!

Maja Cappello, editor
European Audiovisual Observatory

International

COUNCIL OF EUROPE

A recent judgment delivered by the European Court of Human Rights (ECtHR) reveals how powerful persons and their entourage sometimes use clearly illegal and immoral techniques to intimidate investigative journalists in order to make them stop critically reporting on their actions, policy or corruptive activities. The judgment in the case of Khadija Ismayilova v. Azerbaijan once more illustrates the practice of harassment and intimidation, and the blatant lack of respect for the rights of journalists to critically report on the government or the president in Azerbaijan (see IRIS 2010-8/2, IRIS 2015-3/1...

On 20 December 2018, within the context of an event held in Belgrade, Serbia, the Media and Internet Governance Division of the Council of Europe presented a study on European practices of the regulatory authorities of electronic media regarding media literacy. The publication was authored by Robert Tomljenović, Vice-Chairperson of the Croatian Agency for Electronic Media (AEM) and was prepared thanks to the support of the joint project of the European Union and the Council of Europe on "Reinforcing Judicial Expertise on Freedom of Expression and the Media in South-East Europe” (JUFREX), at the...

ERGA

A major report by the European Regulators Group for Audiovisual Media Services (ERGA) has been published. The report looks at internal media plurality from the perspective of all the EU national regulatory authorities (NRAs) in the audiovisual area. Firstly, the report provides a comprehensive analysis of the framework and application of the rules on news and current affairs programmes and electoral media campaigns available to independent audiovisual media regulators in the EU. The report thereby offers a rare opportunity to look into the internal functioning and thinking of NRAs in this area....

EUROPEAN UNION

On 29 January 2019, the European Commission published the first reports by the signatories to the “Code of Practice on Disinformation”, signed in October 2018 (IRIS 2019-1/7). The Code is a non-binding agreement between a number of companies, namely Google Inc, Facebook Inc, Twitter Inc, and Mozilla Corp, and a number of trade associations of online advertising companies, to identify actions that could be put in place to address the challenges related to “disinformation" online. The companies also agreed to regularly report on their progress and the implementation of the Code, and to cooperate...

NATIONAL

In a ruling of 29 November 2018 (G 296/2017-10), the Österreichische Verfassungsgericht (Austrian Constitutional Court) stated that a rule on the Austrian storage media tax was unconstitutional because the upper limit of 6% of the typical price level violated the principle of equal treatment. The Austro-Mechana collecting society had submitted a claim against a sole trader who sold blank CDs for payment of the storage media tax provided for in Article 42b of the Copyright Act (UrhG). The storage media tax, which is levied on the initial sale of recordable storage media, is designed to provide copyright...

The regulatory body for the audiovisual sector in the French-speaking community in Belgium (Conseil Supérieur de l’Audiovisuel Belge - CSA) has issued an opinion regarding the extent to which the Belgian French-language public broadcasting body (Radio-Télévision Belge de la Communauté Française - RTBF) met its public-service obligations during 2017. The CSA carries out an annual check on the RTBF’s actions on the basis of the RTBF’s annual report on its activities, and gathers its observations in the form of an opinion. This was published on 18 January 2019. The obligations incumbent on the RTBF...

In a ruling of 8 January 2019, the Kammergericht Berlin (Berlin Court of Appeal - KG Berlin) addressed the question of when influencers should label social media posts as advertising. It decided that posts containing links to product providers do not generally need to be labelled as advertising. Rather, the question of whether the content of a post is functionally linked to the promotion of the company concerned should be checked on a case-by-case basis. The judgment is the first to set out principles for distinguishing between advertising and the editorial content of influencers and is relevant...

In a ruling of 31 August 2018 (Case no. 6 U 4/18), the Oberlandesgericht Köln (Cologne Regional Court of Appeal - OLG Köln) decided that domain registrars are liable for copyright infringements on filesharing platforms if they fail to shut down a domain reported by a copyright holder. The case concerned copyright breaches committed on the filesharing platform “The Pirate Bay”. The Court of Justice of the European Union had previously examined this platform in 2017 (Case no. 610/15, see IRIS 2017-7:1/4), when it had decided that the making available and management of an online filesharing platform...

The Bayerische Landeszentrale für neue Medien (Bavarian New Media Authority - BLM), one of 14 German regional media authorities which licenses and monitors private radio and television services in Bavaria, has lodged a constitutional complaint against two Bavarian court rulings in which its decision to ban the broadcast of various Ultimate Fighting programmes on German television had been declared unlawful. The case concerns various broadcasting formats featuring the Ultimate Fighting Championship (UFC), a well-known US mixed martial arts organisation owned by the Las Vegas-based American sports...

On 21 January 2019, the Bayerische Landeszentrale für neue Medien (Bavarian New Media Authority - BLM), one of 14 German regional media authorities that monitor radio, television and telemedia services, announced that it had prohibited Amazon Instant Video Germany GmbH from broadcasting an episode from a German series with immediate effect because it infringed the ban on surreptitious advertising. The case concerns the German-produced sitcom “Pastewka”, which depicts the day-to-day struggles of the protagonist, Bastian Pastewka. The first seven series were broadcast by German TV channel Sat.1 until...

In a referendum on 23 June 2016, 51.89% of UK voters decided that their country should leave the European Union. The precise conditions of the United Kingdom’s departure are still being negotiated. Only recently - on 15 January 2019 - did the British Parliament reject the Brexit agreement that Prime Minister Theresa May had negotiated with the European Union by 432 votes to 202. Fears of a ‘no deal’ or ‘hard’ Brexit without an agreement to govern the future relationship between the European Union and the United Kingdom are therefore growing. A ‘hard Brexit’ would have a significant impact on the...

The Spanish Ministry of Economy and Business has opened a public consultation process to gather the opinions of stakeholders in the audiovisual industry and other interested parties on the implementation of the EU’s Audiovisual Media Services Directive (“the AVMS Directive”), which will modify Law 7/2010 on Audiovisual Communication (the AVMS Directive). The Ministry seeks the participation of audiovisual-sector agents, public administrations, agents from other sectors linked to the audiovisual sector, representatives of consumer associations and user associations, and members of society in general. The...

More than a year after the draft bill was submitted to the Congress on 14 November 2017, Spain finally adopted its Organic Law No. 3/2018 of 5 December on the Protection of Personal Data and the Guarantee of Digital Rights. The law entered into force on the day following its publication in the Official Gazette of 6 December 2018, Constitution Day in Spain. The law applies to the public and private sector, is organised into ten chapters and includes ninety-seven articles, one repealing the provision as well as several additional, transitory and final provisions. It repeals Organic Law No. 15/1999...

France’s high Authority for the Broadcasting of Works and the Protection of Rights on the Internet (Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet - HADOPI) has updated its analysis of the piracy ecosystem that it first undertook in 2012. The new study covers all services that enable or facilitate illegal access to copyright-protected cultural goods, not only in the audiovisual sector (films, series, television programmes, music), but also in the e-book and video-game industries. Services offering the retransmission of sports events are also analysed. A number...

On 11 January 2019, the urgent applications judge of the Paris regional court issued a decision that demonstrates the difficulties that can arise when someone gives written permission to be interviewed for a film. In the case in question, a psychoanalyst had given an interview, parts of which were used in a film entitled “Le Mur” on the subject of developmental disorders (psychosis and autism). The film’s producer then embarked on a second film, entitled “Le Phallus et le Néant”, which included further excerpts from the interview and was due to be broadcast in January 2019. The interviewee considered...

On 31 January 2019 during a New Year address, the Minister for Culture, Franck Riester, announced that he would be submitting new legislation reforming the audiovisual sector to the Council of Ministers in the summer. This will consist of three parts: one governing regulation, one in respect of Act No. 86-1067 of 30 September 1986, as amended, on Freedom of Communication, and one on the public audiovisual sector. The Minister had earlier announced that the bill would be debated in Parliament after the summer recess, in September or October - at any rate no later than the start of 2020. He explained...

On 18 January 2019, Sheffield Magistrates’ Court acquitted the BBC Asian Network head of news Arif Ansari of breaching the Sexual Offences (Amendment) Act 1992 after a reporter named a rape victim live on air. Ansari was the editor of a radio programme when a reporter, Rickin Majithia, revealed in a live news bulletin the identity of a female victim of sexual abuse whilst reporting on the trial of her abuser in February 2018 outside Sheffield Crown Court. Majithia had wrongly assumed that the name read out in court was a pseudonym. Although Majithia was in error, the charge was brought against...

Ofcom has published its Children and parents: Media use and attitudes report 2018 (“the Report”). Ofcom’s definition of media literacy is the ability to use, understand and create media and communications in a variety of contexts. The Report is a consequence of Ofcom’s responsibility under The Communications Act 2003 to promote and to carry out research into media literacy. In fulfilment of this responsibility, the Report focuses on children and parents. Ofcom used its quantitative Children and Parents’ Media Literacy Tracker to gather detailed evidence regarding media use, attitudes and understanding...

Ofcom determined that RT failed the impartiality Code of Conduct for having lacked impartiality on seven out of the ten complaints arising from their coverage of the Sergei Skripal and his daughter Yulia poisoning incident in Salisbury on 4 March 2018 - broadcast on RT over a period of approximately seven weeks between 17 March 2018 and 4 May 2018 (see IRIS 2018-7/18). The Ofcom licence for the RT service is held by the autonomous non-profit organisation TV-Novosti. The programmes subject to complaint were: Sputnik, RT, 17 March 2018, 7.30 p.m.; Sputnik, RT, 7 April 2018, 7.30 p.m.; Worlds Apart,...

On 12 December, 2018, by way of Resolution No. 595/18/CONS, AGCOM issued the Regulation governing programming and investment obligations for the promotion of European works and works by independent producers (“the Regulation”). The Regulation was adopted pursuant to Article 44-quinquies of the AVMS Code (Legislative Decree No. 177 of 31 July, 2005), as recently amended by Legislative Decree No. 204 of 7 December, 2017 as part of the so-called Franceschini Reform (Law No. 220 of 14 November, 2016).  On 22 January, 2019, the Regulation was amended by AGCOM Resolution No. 24/19/CONS to take into account...

The Autorità per le garanzie nelle comunicazioni (Italian Communications Authority - AGCOM), pursuant to Article 43 of the Italian AVMS Code (Legislative Decree No. 177/2005), has to periodically conduct a specific analysis to estimate the resources included in the so-called SIC (Sistema Integrato delle Comunicazioni - Integrated Communications System). The provision aims at ensuring pluralism in the communications field by preventing dominant positions from being attained in the sector, meaning that providers registered as communications operators cannot collect, either directly or indirectly,...

On 10 January 2018, the Court of Rome handed down another judgment in the ongoing saga on the Internet Service Providers’ liability for third-party illegal content and activities. The Court ordered Vimeo to pay damages amounting to EUR 8.5 million to the national broadcaster RTI because of multiple copyright infringements concerning the latter’s audiovisual content which occurred on the Vimeo platform. The Court drew this conclusion addressing the debated qualification of modern hosting providers as active rather than passive operators as a prerequisite for the applicability of the liability exemptions...

In September, the Ministry of Economic Development launched two calls for applications for the selection of up to 30 members of a group of experts to draft a national strategy on artificial intelligence (hereinafter AI) and 30 members of a group of experts to draft a national strategy on distributed ledger technologies (hereinafter DLTs) and blockchain. The ministry considers that it is a crucial priority for Italy, as mentioned by the Minister of Economic Development, Mr. Luigi Di Maio, last July in his programmatic lines, to deepen the knowledge of AI, DLTs and the blockchain and the related...

After several setbacks, on 18 October 2018, the Parliament of the Republic of Moldova adopted in its final reading the Audiovisual Media Services Code of the Republic of Moldova, which creates the framework required for implementation of the EU’s Audiovisual Media Services Directive (“the AVMS Directive”). As the President refused to sign it, it was promulgated on 8 November 2018 by the chairman of the Parliament. The new law replaces an earlier Audiovisual Code from 2006 (see IRIS 2006-9/27). It brings national legislation more into line with the AVMS Directive, especially in the fields of the...

On 25 January 2019, the Broadcasting Authority issued a new directive to radio broadcasters which is totally innovative in so far as it allows - for the very first time in Maltese broadcasting history - paid electoral advertisements on nationwide radio stations. However, the advertisements allowed are restricted to the announcement of information meetings to be held by prospective electoral candidates not to serve as “propaganda” for these candidates. The directive allows national radio stations to provide airtime to Maltese candidates standing for election to the European Parliament. National...

On 21 December 2018, the provisional relief judge of the District Court of Amsterdam (“the District Court”) ruled on a dispute between PVH B.V. (“PVH”) and two of its subsidiaries on one side, and Facebook Ireland Limited and Facebook Netherlands B.V. (“Facebook”) on the other side. Most notably, the District Court ruled that Facebook did not fall within the scope of the safe harbour provided by Article 14 eCommerce Directive, as implemented by Article 6:196c(4) of the Dutch Civil Code (Burgerlijk Wetboek - “the DCC”). The dispute arose after numerous advertisements were shown on Facebook’s platforms,...

In a judgment of 11 December 2018, the Court of Appeal of Arnhem-Leeuwarden (“the Appeal Court”) ruled that a journalist had not acted unlawfully by taping and sharing a recording or the contents of a phone call in which a municipal council member (“the council member”) provided him with confidential information. As a party chairman, the council member was a member of a committee responsible for the appointment of an acting mayor. While the appointment procedure was underway, and days before the official announcement of the nominee, the council member spoke over the phone about, inter alia, that...

On 29 January 2019, the audiovisual watchdog Consiliul Naţional al Audiovizualului (National Audiovisual Council, CNA), adopted Decision No. 155/2019 on the modification and completion of CNA Decision No. 72/2012 with regard to the conditions for issuing and amending the retransmission notification (see, inter alia, IRIS 2014-3/39, IRIS 2015-8/29). The new Decision simplifies and clarifies Chapter II of CNA Decision No. 72/2012 ”Procedure and conditions for issuing, modifying and withdrawing the retransmission notification”, with a focus on the documents required for issuing and amending the retransmission...