IRIS newsletter 2019-4
European Audiovisual Observatory
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Tel. : +33 (0) 3 90 21 60 00
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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)
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
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Paul Green • Katherine Parsons • Marco Polo Sarl • Nathalie Sturlèse • Brigitte Auel • Erwin Rohwer • Sonja Schmidt • Ulrike Welsch
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
Coordination: Cyril Chaboisseau, European Audiovisual Observatory • Development and Integration: www.logidee.com • Layout: www.acom-europe.com and www.logidee.com
© 2019 European Audiovisual Observatory, Strasbourg (France)
After two years of intense discussion, the procedure for approving the EU Copyright Directive seems to be drawing to an end. This new directive aims to adapt EU copyright rules to a context in which digital technologies have transformed the way audiovisual works and other creative content are produced, distributed and accessed.
As you are surely aware, certain aspects of this directive have given rise to a harsh polemic, notably with regard to its Article 13 (renumbered as Article 17) which provides that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public … when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.
Article 11 (renumbered as Article 15), introducing what some critical voices have nicknamed the “link tax”, has also been the subject of controversy.
The Copyright Directive was submitted to a plenary vote in the European Parliament on 26 March 2019, and now the final say belongs to the Council of the European Union, which should release its decision shortly. Once adopted, the directive will have to be transposed by the EU member states into their national legislation, which will surely provide for more political infighting. Future issues of this newsletter will keep you updated on any major developments in this regard.
Another development at EU level with ground-breaking potential is the European Commission’s decision to accept film studios’ commitments on licensing contracts for cross-border pay-TV services. This decision has important implications for the future of the debate on the territoriality of copyright law, and its effects will be closely followed by the Observatory.
There are many other interesting issues available on the electronic pages of this newsletter. Moreover, as if this were not enough, we have just published an in-depth “Mapping of national rules for the promotion of European works in Europe”, which is freely available here.
Enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
CoE: Committee of Ministers
Committee of Ministers: Financial sustainability of quality journalism in the digital age
On 13 February 2019, the Council of Europe’s Committee of Ministers adopted a Declaration on the financial sustainability of quality journalism in the digital age. The Declaration encourages the 47 Council of Europe member states to put in place a regulatory and policy framework that facilitates the operation of quality journalism in Europe, while not constraining media outlets’ editorial and operational independence. The Declaration, which emphasises the importance of media in serving public interests and safeguarding core values and principles of democracy, recommends the implementation of a...
CoE: Committee of Ministers
Committee of Ministers: Warning on risk of algorithms being used to manipulate social and political behaviour
In a Declaration adopted on 13 February 2019, the Committee of Ministers of the Council of Europe warned its 47 member states against the risk presented by algorithmic processes, particularly micro-targeting techniques, with regard to individuals’ decision-making and the formation of opinions. Public awareness remains very limited regarding the extent to which everyday devices generate and use vast amounts of data. Apart from the notion of the protection of such data, the way in which it is used to train machine-learning technologies presents serious risks for the process of forming opinions and...
European Court of Human Rights: Catt v. the United Kingdom
The European Court of Human Rights (ECtHR) has delivered a judgment on the compatibility of the right to privacy under Article 8 of the European Convention on Human Rights (ECHR) with the collection, retention and further use of personal data for purposes of police intelligence, while two earlier cases reported in IRIS on the bulk interception of personal communications for intelligence purposes and the right to privacy are pending before the Grand Chamber of the European Court of Human Rights (ECtHR) (Centrum för Rättvisa v. Sweden, IRIS 2018-8/3, and Big Brother Watch and Others v. the United...
EU: European Commission
European Commission: Agreement on new Regulation on fairness and transparency of online platforms
On 14 February 2019, the European Parliament, the Council of the European Union and the European Commission announced a political deal had been reached on a new Regulation on promoting fairness and transparency for business users of online intermediation services. The Regulation was first proposed by the European Commission as part of its Digital Single Market Strategy for Europe (see IRIS 2015-6/13, IRIS 2015-10/4, IRIS 2017-7/7). The purpose of the Regulation is to ensure a fair and transparent legal environment for business users of online platforms and corporate website users of online search...
EU: European Commission
European Parliament: Modernising the EU copyright
After two years of intense discussion, the European Parliament, the Council and the European Commission have finally reached a political agreement on a new Copyright Directive, which aims to adapt EU copyright rules to a context in which digital technologies have transformed the way audiovisual works and other creative content are produced, distributed and accessed. The Copyright Directive was submitted to a plenary vote in the European Parliament on 26 March 2019, and now the final say belongs to the Council of the European Union, which should release its decision shortly. Once adopted, the directive...
European Commission: Decision on film studios’ commitments over licensing contracts for cross-border pay-TV services
On 7 March 2019, the European Commission adopted a decision accepting commitments made by a number of well-known film studios and the broadcaster Sky UK to address the Commission’s concerns regarding clauses in the studios' licensing contracts for pay-TV with Sky UK. The film studios are Disney, NBCUniversal, Sony Pictures, and Warner Bros., and according to the Commission, the clauses at issue “prevented Sky UK from allowing EU consumers outside the United Kingdom and Ireland to subscribe to Sky UK's pay-TV services to access films via satellite or online”, and also required NBCUniversal, Sony...
Court of Justice of the European Union: Sergejs Buivids v. Datu valsts inspekcija
On 14 February 2019, the Court of Justice of the European Union (CJEU) clarified the possibilities for the processing of personal data for journalistic purposes, as guaranteed under Article 9 of Directive 95/46 of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. The CJEU was requested by the Latvian Supreme Court to deliver a preliminary ruling on the question of whether Mr Buivids, who had posted a video on the Internet showing public officials of the Latvian national police force without their consent, could...
[DE] Social networks publish their second transparency reports
The Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Act to improve law enforcement in social networks - NetzDG), which is designed to force social networks to deal more quickly and more comprehensively with complaints about hate crime and other criminal content, entered into force in Germany on 1 October 2017 (see IRIS 2018-1/15). Under the Act, social networks must ensure, through an effective and transparent procedure, that complaints are immediately noted and checked, and that illicit content is deleted within specified deadlines. Social network providers that receive...
[DE] Concession in longstanding German film aid dispute: Netflix will pay film levy
According to numerous media reports based on information provided by the Filmförderanstalt (German Film Board - FFA), the US streaming service Netflix, which has been providing services aimed at German viewers since 2014, has announced that it intends to start paying the film levy required under German law in September 2019. This could mark the end of a dispute that has lasted several years concerning the company’s obligations under the German Filmförderungsgesetz (Law on the funding of film production - FFG). The FFA has the task of supporting the German film industry and the creative and artistic...
[DE] Federal Cartels Office prohibits Facebook’s unlawful data processing under competition law
On 6 February 2019, the Bundeskartellamt (Federal Cartels Office - BKartA) issued a prohibition notice against Facebook Inc. (USA), Facebook Ireland Ltd. and Facebook Germany GmbH, primarily concerning their plans to combine user data from Facebook-owned services. On competition law grounds, Facebook was prohibited in particular from allowing private users resident in Germany to use its social network only if it could assign data collected from its other services - WhatsApp, Oculus, Masquerade and Instagram - and from third-party websites that contain Facebook interfaces to their Facebook account...
[DE] Federal Supreme Court submits questions to the CJEU on YouTube’s duty to publish information on copyright infringements
In a decision of 21 February 2019, the I. Zivilsenat (first civil chamber) of the Bundesgerichtshof (Federal Supreme Court - BGH), which is responsible for copyright-related cases, submitted to the Court of Justice of the European Union (CJEU) a number of questions concerning the scope of information that the YouTube video platform must disclose in relation to users who infringe copyright. In the case at hand, a film distributor had launched an action against YouTube LLC and its parent company, Google Inc., claiming an infringement of its exclusive rights to exploit the films “Parker” and “Scary...
[ES] Catalan Audiovisual Council analysis of online content that promotes betting and gambling
Current epidemiological data demonstrate that in Spain, up to 4.6% of teenagers show risk behaviour in relation to betting and gambling, and that the average age at which addicts start to gamble is 19 years old. In addition, 37% of adult addicts started gambling before they had reached the minimum legal age to do so. Bearing in mind this data, the Catalan Audiovisual Council (Consell de l’Audiovisual de Catalunya, CAC) report examines audiovisual content that promotes betting and gambling in various ways, with a view to informing the debate on the rise in betting and gambling addictions. To do...
[FR] Application for interim suspension of showing of the film “Une Intime Conviction”
Following the first screening in cinema theatres on 6 February 2019 of the film “Une Intime Conviction”, which recounts the appeal lodged by a law professor suspected of having killed his wife and the work of his defence lawyers to obtain his acquittal - in March 2010 - , the wife’s lover had the production company summoned under the urgent procedure in an effort to have showing of the film stopped on the grounds of invasion of his privacy. In its decision of 22 February, the court began by stating that, since the application sought to prevent the showing of an intellectual work, the applicant...
[FR] Competition authority urgently calls for regulatory constraints on traditional audiovisual providers to be relaxed
On 21 February 2019, at the request of the National Assembly’s Committee on Cultural Affairs and Education, the French competition authority published its opinion on the forthcoming audiovisual reforms. The authority’s key proposal is for the relaxation of restrictions on traditional audiovisual providers in order to enable them to compete on equal terms with online video platforms (e.g. Amazon and Netflix). The evidence is clear: these new platforms, which entered the market in 2014 and have more subscribers in France than Canal Plus (Netflix has over 5 million subscribers) have adopted an innovative...
[FR] New Composition for the French CSA
Following the proposal by the French President Emmanuel Macron and the endorsement by the National Assembly and the Senate, Roch-Olivier Maistre was appointed as President of the French “Conseil supérieur de l’audiovisuel” (CSA) for a six-year mandate, as of 4 February 2019. He replaces Olivier Schrameck, whose term came to an end on 23 January 2019. Roch-Olivier Maistre was, inter alia, an Adviser to the Office of the Minister of Culture and Communication, an Adviser for Education, Culture and Communication to the French President, President of the Regulatory Authority for Press Distribution (Autorité...
[FR] Shelved documentary and defamation - abuse of right confirmed
Vivendi, which owns Canal Plus and whose majority shareholder is Vincent Bolloré, sued a journalist who co-authored a television documentary entitled “Evasion fiscale, enquête sur le Crédit Mutuel” (“Tax evasion -, investigation into Crédit Mutuel”). Initially due to be broadcast on Canal Plus in May 2015, the documentary was finally shown five months later on France 3. While Canal Plus claimed that it had not broadcast the programme for author-exclusivity reasons, the journalist said that the programme had been shelved on account of the relationship between the President of Canal Plus and the...
[FR] Urgent application for release of François Ozon’s latest film, “Grâce à Dieu” to be delayed
On 31 January 2019, a Catholic priest suspected of abusing boy scouts lodged an application for emergency proceedings to be initiated against the film production company responsible for the film “Grâce à Dieu” (“By the Grace of God”), which was due to be released on 20 February 2019. Copies had already been delivered to 307 cinemas and a huge publicity campaign costing EUR 1 million had already been launched. Directed by François Ozon, the film depicts the battle fought by victims of child abuse allegedly carried out by the priest, whose real name is used in the film. Claiming a violation of his...
[GB] Department for Digital, Culture, Media and Sport publishes its final report on disinformation and fake news
On 18 February 2019, the Department for Digital, Culture, Media and Sport (DCMS) Committee published its Final Report on disinformation and fake news (“the Report”), following on from its July 2018 Interim Report. Since then, the Committee has held three further evidence sessions, inviting UK regulators and the Government to give evidence, as well as receiving a further 23 written submissions. In November 2018 the Committee hosted an “International Grand Committee”, inviting parliamentarians from nine countries. The Report develops the areas covered in the Interim Report,...
[GB] Regulator rejects complaint that the BBC breached “due impartiality” rules in its treatment of Brexit
Ofcom, the UK communications regulator, has rejected a collective complaint from ten pro-Brexit politicians that BBC coverage had breached the rules of due impartiality in the Communications Act and in the Broadcasting Code. The complaints concerned sets of broadcasts on BBC Radio Four. These were: coverage of the fifth round of Brexit negotiations in the flagship ‘Today’ programme; Series 3 of ‘Brexit: A Guide for the Perplexed’; and a special day of broadcasts on ‘Britain at the Crossroads’. They were broadcast between 9 October 2017 and 29 March 2018. The complainants claimed that pro-Brexit...
[GB] Report with recommendations to ensure and promote public-interest news
The findings of the Cairncross Review (“the Review”), chaired by Dame Frances Cairncross were published on 12 February 2019; it made nine recommendations for addressing two primary issues: (i) is the market in which publishers operate a fair one or has the growth of large online platforms, such as Google and Facebook, created distortions that justify government intervention? (ii) how should society continue to support the monitoring of, and reporting on, the activities of public bodies - not just central government, but also local councils, courts and inquests. The Review referred to this type...
[GB] Talk Radio in breach of Ofcom’s rules on harm and offence
On 25 February 2019, the Office of Communications (Ofcom) ruled that commercial radio station Talk Radio presenter James Whale had breached the Ofcom Broadcasting Code over an “insensitive” interview with a victim of sexual assault. Earlier in July 2018, James Whale and his co-presenter Asher Gould interviewed a journalist and invited her to comment on remarks made by author Jilly Cooper that the #MeToo movement, which was launched following the multiple sexual misconduct accusations against film producer Harvey Weinstein, had changed the way in which people interact. In particular, Mr Whale asked...
[GB] The High Court refuses to disclose of cockpit footage of air accident to the media
On 28 January 2019 the High Court of Justice in England ruled that cockpit footage from the Shoreham Airshow crash cannot be released to the press, after it had been played to a jury. The background to this trial began on 22 August 2015, when a Hawker Hunter fighter jet crashed during a display at the Shoreham Airshow at Shoreham Airport, England, after failing to complete an aerobatic manoeuvre. Eleven people died in the resulting fireball. In 2018 former Royal Air Force pilot Andy Hill was charged with eleven counts of manslaughter by gross negligence and one count of endangering an aircraft....
[IE] Communications Minister proposes new law to protect children online
On 4 March 2019, the Minister for Communications, Climate Action and Environment, Richard Bruton, announced that he would introduce a new Online Safety Act to improve online safety and ensure that children can be protected online. In announcing the proposed law, the Minister stated that while "digital technology is transforming the world in which we work and live and learn” and “provides huge opportunities for us all”, it also “presents new risks which did not exist previously.” Minister Bruton asserted that the “situation at present where online and social media companies are not subject to...
[IT] AGCOM public consultation on a draft resolution on hate speech
On 22 January 2019, the Italian Communication Authority (AGCOM) launched a public consultation on a draft regulation aimed at fostering the protection of human dignity and the principle of non-discrimination, as well as combating hate speech. The scope of the application of the draft regulation includes both audiovisual media service providers and video-sharing service providers. Article 1 firstly sets out certain definitions. Inter alia, “video-sharing service providers” are defined as entities operating a service that, even in part, makes available to the public programmes and user-generated...
[IT] Public consultation on draft guidelines on the definition and scope of exploitation rights for public service broadcaster
Pursuant to Article 25, paragraph 3 of the service contract (as renewed for the years 2018 to 2022) between the Italian Ministry of Economic Development and the Italian public service broadcaster, RAI, a Commission composed of members of the Ministry and members of RAI has been established and assigned with the task of drafting guidelines. These guidelines aim at underpinning current negotiations between RAI and representative associations of producers on the extension and the scope of the exploitation rights of audiovisual works for radio, television and multimedia platforms. The Commission was...
[NL] Charging two different fees to private and professional music streaming users is unlawful
In a judgment of 12 December 2018, the District Court of Amsterdam ruled that the Dutch collective rights management organisation Buma/Stemra acted unlawfully by charging two different fees based on a distinction between “private use” and “professional use” to users of online music streaming services. The lawsuit was filed against Buma/Stemra by several producers of background music - all members of the Associated Business Music Distributors (hereafter: “ABMD” or “the claimants”). AMBD members offer background-music subscriptions to several businesses, such as shops, restaurants and gyms. Their...
[NL] Internet service provider does not have to hand over contact data of alleged infringers to a movie distributor
In a judgment of 8 February 2019, the Midden-Nederland District Court dismissed an action brought by a Dutch movie distributor seeking to obtain Internet users’ contact data held by a Dutch Internet service provider (ISP). The movie distributor requested data that would enable it to identify Internet users who illegally downloaded a certain movie. Between 21 December 2017 and 2 Februar 2018, the movie distributor was permitted by the Dutch data protection authority (Autoriteit Persoonsgegevens) to collect the Internet Protocol (IP) addresses of Internet users who illegally downloaded the movie...
[RO] A new step for the TV digital switchover in Romania
On 22 February 2019, the Societatea Naţională de Radiocomunicaţii S.A. (National Radiocommunications Society S.A. - RADIOCOM), a company that is part of the portfolio of the Ministry of Communications and Information Society (MCSI), signed the contract for the provision of the broadcasting equipment necessary for the implementation of the Multiplex 1 national network on which the public television stations will be broadcast (see IRIS 2009-9/26, IRIS 2010-3/34, IRIS 2010-7/32, IRIS 2010-9/35, IRIS 2011-4/33, IRIS 2013-5/38, IRIS 2013-6/30, IRIS 2014-4/26, IRIS 2014-5/29, IRIS 2014-9/27, IRIS 2015-5/33,...
[RO] Support for the Romanian cinema industry
On 15 February 2019, the Romanian Government decided to add soap operas, television series and sitcoms to the list of productions that could be funded under the state aid scheme for the film industry (see IRIS 2003-2/23, IRIS 2005-8/28, IRIS 2010-7/34, IRIS 2011-2/5, IRIS 2013-9/22, IRIS 2016-10/23, IRIS 2018-2/29, IRIS 2018-3/29, IRIS 2018-8/37, IRIS 2019-2/22). The Romanian Government adopted Decision No. 90/2019 regarding the modification and completion of Government Decision No. 421/2018 for the establishment of a state aid scheme to support the cinematographic industry. The new document, in...
[RO] The Audiovisual Law, modified by the Senate
On 18 February 2019, the Senate (upper chamber of the Romanian Parliament) adopted a draft law on the modification and completion of Audiovisual Law No. 504/2002 (see IRIS 2010-1/36, IRIS 2011-4/31, IRIS 2011-7/37, IRIS 2013-3/26, IRIS 2013-6/27, IRIS 2014-1/37, IRIS 2014-2/31, IRIS 2014-7/29, IRIS 2014-9/26, IRIS 2015-10/27, IRIS 2016-2/26, IRIS 2016-10/24, IRIS 2017-1/30, IRIS 2017-7/28, IRIS 2018-6/30, IRIS 2018-8/36, IRIS 2018-10/22, IRIS 2019-1/3, IRIS 2019-2/21). The draft law was adopted by the Chamber of Deputies on 21 November 2018. The Senate’s decision was final. The document introduces...
[UA] Court decision on Russian broadcasts annulled
At a hearing on 29 January 2019, the Sixth Appeals Administrative Court annulled the decision taken on 29 May 2018 by the Kyiv District Administrative Court on the merits of the case relating to the legality of Russian rebroadcasts via cable systems in Ukraine (see IRIS 2018-8/39). The case started in 2014 (see IRIS 2015-5/38 and IRIS 2017-1/33). The current appeal was brought by the Ukrainian cable TV distributor “Vertikal-TV”. The case originated with the national media regulator’s claim for the illegal nature of the content of unspecified Russian TV programmes to be acknowledged and for further...