IRIS newsletter 2019-5

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

Last month we reported on the European Commission’s decision to accept the commitments of film studios on licensing contracts for cross-border pay-TV services. We recalled thereby the possible important implications of this decision for the future of the debate on the territoriality of copyright law. This month it is the turn of the new Directive on copyright and online transmissions of broadcasting organisations and retransmissions of television and radio programmes (formerly so-called “SatCab regulation”) to make the headlines for our newsletter. Some will see in its adoption a further step towards the European Commission’s alleged aim to eliminate the territoriality principle from copyright law in the EU. Others may argue that the final directive is miles away from  Commission’s original intentions on this matter. Whether a watered-down attempt at opening walled gardens or a torpedo under the floating line of the European audiovisual industry, time will tell how things develop from here, and we will certainly come back to this subject in the future.

And talking about Europe, I am sure you are aware that we have European Parliament elections coming up in May! Of course, elections mean debates and controversies, and our pages bear witness to this. We report how in France courts were asked to issue urgent decisions by three politicians who wanted to participate in a televised debate involving nine other candidates heading party lists in the European elections, which was broadcast on public-service TV. We also present the rules governing the audiovisual electoral campaign for the election of the members from Romania to the European Parliament and two Spanish decisions the legislation concerning media and elections.

Otherwise, in the wonderful month of May flowers bloom, birds sing, and the Festival de Cannes opens its doors to the whole fauna and flora of international cinema. As usual we will be present at the Croisette with a conference on “Film financing – European strategies to boost cultural diversity”. The conference will look at how today’s European films are financed: Who are the new financial players? How does public policy channel money into film funds and financing mechanisms? How is the structure of film financing in Europe changing? This free entry conference will take place on Saturday 18 May from 9.30 – 11.30 at the Olympia cinema in Cannes as part of the Marché du film (doors open at 9.10). The conference is open to all Cannes 2019 Film Market, Festival and Press accreditations, but you need to register here: https://forms.gle/gTt1yd4JoJTb15d16.

Enjoy your read!

Maja Cappello, editor
European Audiovisual Observatory

International

COUNCIL OF EUROPE

The European Court of Human Rights (ECtHR) has delivered a new judgment with regard to the liability of an Internet portal for offensive content allegedly tarnishing one’s reputation (see also Delfi v. Estonia (Grand Chamber), IRIS 2015-7/1; Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, Iris 2016-3/2 and Pihl v. Sweden, Iris 2017-5/3). The ECtHR agreed with the findings by the Norwegian courts that although some anonymous comments were inappropriate and tasteless, the expeditious removal of the offensive comments upon actual knowledge by the media company and the editor exempted...

EUROPEAN UNION

On 28 March 2019, the European Parliament voted to adopt a Directive on the exercise of copyright and related rights applicable to certain online transmissions by broadcasting organisations and retransmissions of television and radio programmes. The Directive was first proposed as a Regulation by the European Commission in 2016 (see IRIS 2016-9/4 and IRIS 2018-1/10). However, in December 2018, the Council and European Parliament announced that an agreement had been reached and that the “originally proposed Regulation will have to be redrafted so that it takes the form of a Directive” (see IRIS...

NATIONAL

The advertising landscape for German private TV broadcasters has, for many years, included advertisements for gambling services that are illegal under the Glücksspielstaatsvertrag (Inter-State Gambling Agreement - GlüStV) of the German Länder. It has long been disputed whether these advertising campaigns can be based on the online gambling licences that were awarded in Schleswig-Holstein at a time when the Land followed its own path by relaxing the rules on gambling. The online gambling licences awarded in Schleswig-Holstein expired at the start of February 2019. As a result, television, radio...

On 21 March 2019, despite criticism from media associations and the opposition, the German Bundestag adopted a draft act tabled by the federal government to implement Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure, as contained in a recommended resolution drawn up by the Bundestag Law and Consumer Protection Committee.  Directive 2016/943 obliges member states to protect trade secrets through civil law provisions. According to the act’s explanatory memorandum, trade secrets have considerable...

In a recently published judgment of 17 January 2019 (Case no. 12 O 1982/2018), the Landgericht München (Munich district court) decided that customers were unreasonably disadvantaged by a unilateral, groundless change to programme packages sold by pay-TV provider Sky Deutschland. In its terms of business, the pay-TV provider had reserved the right to change or limit programme packages and services as long as their ‘overall character’ was not affected. The terms of business also stated that the programme content of sports channels was seasonal and could vary depending on the availability of broadcasting...

On 27 March 2019, following applications from two people who are required to pay the German broadcasting contribution (cases BVerwG 6 C 5.18 and 6 C 6.18), the Bundesverwaltungsgericht (Federal Administrative Court - BVerwG) decided that the Court of Justice of the European Union (CJEU) should rule on whether the broadcasting contribution can and should be payable in cash. The decision primarily concerns the interpretation of the concept of legal tender and the scope of the European Union’s exclusive jurisdiction over monetary policy. In Germany, the obligation for private individuals to pay the...

In a recently published decision of 18 December 2018 (Case no. 5 B 229/18), the Sächsische Oberverwaltungsgericht Bautzen (Saxony Higher Administrative Court Bautzen - OVG) ruled that, if a competitor’s complaint about the allocation of broadcast transmission capacity appears unlikely to succeed, the public interest in the provisional allocation of transmission capacity takes precedence over the competitor’s interest in suspending the implementation of the allocation decision. Although the decision concerns radio transmission capacity, it contains important general principles for the allocation...

The Spanish BOE (Official Gazette) published Law 2/2019 of March 1, amending the Intellectual Property Law and implementing the following EU directives into Spanish law: EU Directive 2014/26/ on the collective management of copyright and related rights, and the granting of multi-territorial licences of rights in musical works, and EU Directive 2017/1564 on certain permitted uses of certain works protected by copyright and related rights and other benefits in favour of blind people, people with visual impairment or people with other difficulties in accessing printed texts. The criteria followed...

On 25 February 2019, the Constitutional Court of Spain ruled out, in a judgement, the use of hidden cameras for journalistic purposes. The Constitutional Court ruled that “the Constitution does not permit the use of hidden cameras for journalistic purposes as it constitutes a serious illegitimate interference with the fundamental rights to privacy and to one’s own image”. The judgement of the First Chamber partially upheld the appeal for constitutional protection brought by an individual who considered that journalists of a television channel had violated his rights to privacy, own image and honour...

On 27 March 2019, two separate decisions from the Junta Electoral Central (Central Electoral Commission - JEC) and from the Junta Electoral Provincial de Barcelona (Barcelona Electoral Commission - JEPB) ruled that the public service Corporació Catalana de Mitjans Audiovisuals (Catalan Audiovisual Media Corporation - CCMA) had infringed the legislation concerning media and elections. According to the Ley Orgánica del régimen electoral general (Representation of the People Institutional Act - LOREG), which regulates the use of mass media for electoral campaigning, the Electoral Administration has...

A recent judicial order issued by the Juzgado de lo Mercantil (Commercial Court) nº 11 of Barcelona has ordered that seven “stream-ripping” websites be shut down. The judicial order was requested by the Asociación de Gestión de Derechos de Propiedad Intelectual (AGEDI). The judicial order was issued three months after the lawsuit was filed by AGEDI. The Commercial Court ordered precautionary measures preventing access from Spain to seven “stream-ripping” websites. The websites in question are flvto.biz, flvto.com, flvto.co/es, flvv2mp3.org, flv2mp3.com, flv2mp3.by, and 2conv.com. Under the order,...

In 2016, the Minister of Culture awarded a “12” rating without a separate warning for the original subtitled version of the animated film “Sausage Party”. The “Juristes pour l’enfance” association asked the Paris Administrative Court to suspend this decision on the grounds of misuse of power, arguing that the film should have carried a “16” rating. The court refused this request, as did the relevant administrative appeal court. The association then appealed to the Conseil d’État (Council of State). In a judgment of 4 March 2019,...

At the international “Series Mania” festival held in Lille from 22 until 30 March 2019, Frédérique Bredin, President of France’s National Centre of Cinematography and the Moving Image (Centre National du Cinéma et de l’Image Animée - CNC), announced the first measures in the “Series Plan” initiated last year by the then Minister for Culture. “We have to help our TV series acquire an industrial logic, making it easier to pass from one season to the next. It’s what audiences expect,” she said. The first section of the plan includes three key measures, which would only apply to original TV series. The...

The Paris Administrative Court, followed by the Conseil d’État (Council of State), was recently asked to issue urgent decisions by three politicians who wanted to participate in a televised debate involving nine other candidates heading party lists in the European elections, which was broadcast on France 2 at 9 p.m. on 4 April 2019. They were Benoît Hamon, François Asselineau and Florian Philippot, who headed the lists for Génération.s, the UPR and Les Patriotes respectively. On 1 April 2019, the urgent applications judge of the Paris Administrative Court allowed the politicians’ requests. He pointed...

Laetitia Avia (MP for Paris, REM party) has tabled a bill to “combat online hate” which should be examined within the coming weeks. The wording is in line with the desire that Emmanuel Macron has expressed to oblige all the parties concerned (platforms, Internet users, and Internet access providers) to face up to their responsibilities in the fight against hate on the Internet. As noted in the explanatory statement to the bill, the current legal provisions governing online hatred are mainly those contained in the Law on confidence in the digital economy (Loi pour la confiance dans l’économie numérique...

On 5 March 2019, the Attorney General’s Office published the Government’s response to its call for evidence examining the impact of social media on the administration of justice. The response revealed that although the risk to the legal process has increased with the proliferation of social media in recent years, it nevertheless remains relatively minor and it is still at a level whereby it does not pose a serious threat to the criminal justice system. The call for evidence was launched in September 2017 by the then Attorney General, Jeremy Wright, and closed on 8 December 2017. It asked for examples...

That’s Manchester is a local television service serving the city of Manchester and its surrounding area, however, it was held to have breached Ofcom’s Rule 9.5 by giving undue prominence to a product, service or trademark during two news reports. The first report concerned an initiative by the Greater Manchester Chamber of Commerce to encourage small businesses in the area to adopt their own website. The Greater Manchester Chamber of Commerce was working in conjunction with a digital marketing service called UENI. The That’s Manchester newsreader, in their introduction, referred to the pairing...

On 19 March 2019, the Italian Supreme Court of Cassation issued its judgment in the appeal filed by RTI (Reti Televisive Italiane S.p.A., one of the main Italian broadcasters) against the landmark Milan Court of Appeals’ decision issued in January 2015 in the RTI v. Yahoo! case. The case arose in 2009 when RTI filed a suit against Yahoo!, provider of the Yahoo! Video service, to have the latter condemned for copyright infringement against RTI, based on the fact that several of RTI’s videos were hosted on the Yahoo! Video platform, uploaded by users without RTI’s consent. The first instance Court...

In a press release of 7 March 2019, the Dutch Data Protection Authority (DPA) declared that websites must remain accessible for Internet users who refuse to give consent to the placement of tracking cookies. Websites that only grant access to their site after visitors have given consent do not comply with the free consent standard set by the General Data Protection Regulation (GDPR). In the Netherlands, cookie placement is regulated under the Dutch Telecommunications Act (Telecommunicatiewet). Under article 11.7a of this Act, consent is required to store or to receive access to information on the...

In a judgement of 22 December 2018, the District Court of Limburg ruled that a Dutch political party, the Socialist Party (SP), had not acted unlawfully by posting on a website called foutevastgoedbazen.nl (wrongrealestatebosses.nl)) and on a Facebook page statements about a real estate company, Metroprop, which owns a large number of properties in Heerlen, a city in the South of the Netherlands, and about its managing director. The website was an initiative of citizens of Heerlen and the political party aimed at protesting against what they call “wrong real estate bosses”, such as the managing...

On 26 March 2019, the Consiliul Naţional al Audiovizualului (National Audiovisual Council - CNA) adopted Decision No. 308/2019 with regard to the rules governing the audiovisual electoral campaign for the election of the members from Romania to the European Parliament (see IRIS 2009-6/28, IRIS 2011-3/29, IRIS 2014-5/27). The elections will be held on Sunday 26 May 2019. The audiovisual electoral campaign will start on 27 April at midnight and will end on 25 May at 7 a.m. local time, 24 hours before the opening of the voting sections, according to Article 1(1). The television and radio broadcasters...

On 20 March 2019, the President of Romania, Klaus Iohannis, promulgated the Law on the modification and completion of Audiovisual Law No. 504/2002 (see latest IRIS 2018-6/30, IRIS 2018-8/36, IRIS 2018-10/22, IRIS 2019-1/3, IRIS 2019-2/21 and IRIS 2019-4/29). The new Law No. 52/2019 had been adopted by the Senate (upper chamber of the Romanian Parliament) on 18 February 2019 and by the Chamber of Deputies on 21 November 2018. The law establishes the obligation to provide information on the telephone number "Telverde for Victims of Domestic Violence" in television and radio programmes addressing...

On 18 March 2018, Russian President Vladimir Putin signed into law a set of amendments to the Federal Statute on information, information technologies and protection of information (or the IT Law, see IRIS 2018-1/39, IRIS 2017-8/34, IRIS 2014-6/31 and IRIS 2014-3/40) that aim to stop online dissemination of certain categories of offensive information. A new Article 15-1-1 bans spreading information that “exhibits blatant disrespect for the society, State, official state symbols of the Russian Federation, Constitution of the Russian Federation or governmental bodies of the Russian Federation.” The...

On 18 March 2018, Russian President Vladimir Putin signed into law a set of amendments to the Federal Statute on information, information technologies and the protection of information (or the IT Law, see IRIS 2018-1/39, IRIS 2017-8/34, IRIS 2014-6/31 and IRIS 2014-3/40) that aim to stop online dissemination of certain categories of false information under the guise of truthful information. The amendments are to the existing Article 15-3 (“Procedures for restricting access to information disseminated illegally”) of the IT Law. They prohibit the dissemination in “network publications” (or registered...

OSCE

The Organization for Security and Co-operation in Europe’s High Commissioner on National Minorities (OSCE HCNM) has issued the Tallinn Guidelines on National Minorities and the Media in the Digital Age in February 2019. The Office of the OSCE HCNM was established in 1992 as a mechanism to provide early warnings of, and prevent, conflicts involving national minorities within the OSCE region. The Tallinn Guidelines provide the 57 participating OSCE States with detailed guidance on how to create and safeguard an inclusive space for public debate in diverse societies. The Guidelines pay particular...