IRIS newsletter 2019-6

Publisher:

European Audiovisual Observatory
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F-67000 STRASBOURG

Tel. : +33 (0) 3 90 21 60 00
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E-mail: obs@obs.coe.int
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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 • Lucy Turner

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

The Internet is very often compared to the printing press. Indeed, both revolutionised the way people accessed and distributed information. In the case of Gutenberg’s invention, for the first time in the history of civilisation, anybody who owned a printing press could easily reproduce any written text and distribute it in great numbers. That was obviously not acceptable for the powers that be, so laws regulating “the press” were swiftly introduced all around Europe.

The same evolution can be observed in the case of the Internet. There is little left from the original idea of absolute freedom of expression dreamed by tech pioneers, and a growing number of rules apply nowadays to speech made available online. Is a new Inquisition thus in place? Nothing can be further from the truth. The legal standards applied today are very different (at least in liberal democracies) to those in place at the time of Gutenberg and aim principally at protecting the interests of the people, not at suppressing criticism of the rich and powerful. The circumstances are also completely different. For starters, the Internet has made national borders online practically irrelevant and has created a number of new jurisdictional issues, as one can see in the ECtHR’s recent judgment in Richard Williamson v. Germany. And yet, there are countries that believe that locking the stable door is still possible (and a good idea); see, for example, the Russian Federation’s new Federal Statute that aims at enabling the Russian sector of the Internet to operate independently from the World Wide Web in the event of an emergency or foreign threat. The Internet has also multiplied to infinity the printing press’ reach, making any one of us a potential journalist, with rights and duties attached thereto. In this regard, an interesting judgment issued by the Strasbourg court highlights the role of bloggers as “public watchdogs”.

But of course, in the same way as one can legitimately divulge valuable facts and opinions to the public, one can also choose to spread misinformation and fake news. In order to fight against this scourge, the French regulator CSA has adopted a draft recommendation with a view to accompanying online platforms in setting up a specific action plan to promote the circulation of reliable news and combatting fake news that is “likely to disturb public order or compromise the sincerity of voting”. To do this, the collaboration of big US companies such as Facebook, Google and Twitter is indispensable, and judging by the actions they took during March 2019 to implement their commitments related to the Code of Practice on Disinformation, all three platforms appear to have stepped up their efforts to combat false and misleading information in the run-up to the European Parliament elections. On the subject of these and other US companies, the issue of market dominance is also a matter of concern for European public authorities, as we can see from the investigation started by the Dutch Authority for Consumers and Markets (ACM) into an alleged abuse of dominance by Apple in its App Store.

This newsletter also bears witness to the variety of interests and rights that have to be put in the public authorities’ balance when regulating speech on the Internet. Concerning the protection of minors on the Internet, we report on the Italian AGCOM’s criteria for the categorisation of both audiovisual works delivered via the Web and video-games, and the position paper on the protection of children and young people in the media of the Rhineland-Palatinate Media and Communication Authority in Germany. With regard to protection against harmful content, the UK’s Department for Digital, Culture and Media and Sport (DCMS) has launched a consultative Online Harms White Paper which deals with issues such as the misuse of online sites by terrorist groups and sex offenders, online bullying and the use of disinformation, all of which threaten to undermine democratic values and principles.

This and so much more awaits you inside this month’s newsletter.

Enjoy your read!

Maja Cappello, editor
European Audiovisual Observatory

International

COUNCIL OF EUROPE

On 2 May 2019 - the eve of World Press Freedom Day - the Information Society department of the Council of Europe (COE) published a report on Freedom of Expression in 2018. The 22-page report assesses the state of freedom of expression in the COE member states on the basis of the findings of the Council of Europe’s monitoring mechanisms and bodies, which include the COE’s Platform for the Promotion of Journalism and the Safety of Journalists. The Platform compiles a record of alerts regarding serious concerns about media freedom and the safety of journalists in COE member states issued by certain...

The European Court of Human Rights (ECtHR) delivered a decision in a case of Holocaust denial expressed in an interview broadcast on Swedish television, published on YouTube and reported in German media. The ECtHR found that the statements in the interview at issue were not protected by the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The applicant is Mr Richard Williamson, a British national and former member of the Society of Saint Pius X, opposing the ecclesiastical reforms of the Second Vatican Council. He was excommunicated under the Code...

The European Court of Human Rights (ECtHR) delivered an interesting judgment on the freedom of expression of a blogger (see also Egill Einarsson v. Iceland (No. 2), IRIS 2018-9/2 and Savva Terentyev v. Russia, IRIS 2018-9/3). The ECtHR values the statements of the blogger as those of a “public watchdog” and finds that his conviction for defamation violated Article 10 of the European Convention on Human Rights (ECHR). In 2015 Mr Maksim Sergeyevich Rebechenko published on YouTube a video with the title “Kolkhoz TV on Ukrainian crisis”. In the video he made a series of critical comments about a speech...

EUROPEAN UNION

On 23 April 2019, the European Commission published the monthly reports from Facebook, Google and Twitter concerning actions taken during March 2019 to implement their commitments related to the Code of Practice on Disinformation. The reports demonstrate that all three platforms appear to have stepped up their efforts to combat false and misleading information in the run-up to the European Parliament elections. In particular, measures have been taken to ensure the findability and labelling of political advertising. The Code of Practice on Disinformation, drawn up last year by the working group...

NATIONAL

In a ruling of 2 April 2019 (Case no. OVG 11 S 72.18), the Oberverwaltungsgericht Berlin-Brandenburg (Berlin-Brandenburg Administrative Appeal Court - OVG) decided that live streams available on the website of the Bild newspaper could continue to be broadcast for the time being without the need for a broadcasting licence. It therefore rejected a complaint from the Medienanstalt Berlin-Brandenburg (Berlin-Brandenburg media authority - mabb) about a decision taken by the Verwaltungsgericht Berlin (Berlin Administrative Court - VG) in 2018 (see IRIS 2019-1/13). The case at hand concerned various Internet...

At its meeting on 11 April 2019, the media council of the Bayerische Landeszentrale für neue Medien (Bavarian New Media Authority - BLM) adopted a set of digital ethics guidelines. Its position paper, focusing on the ethical and socio-political aspects of digitisation, is designed to stimulate debate on the consequences of the increasing use of technology in the media and on future approaches to regulation. It forms part of the media council’s efforts to identify how social rules on the use of new technologies can be established. The BLM is the regulatory body for broadcasting and telemedia services...

In a decision of 25 April 2019, the Bundesgerichtshof (Federal Supreme Court - BGH) submitted the following question to the Court of Justice of the European Union (CJEU): does embedding on a third-party website a work that, with the consent of the rightsholder, is available on a freely accessible website (“framing”) constitute communication to the public in the sense of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society if the work is embedded in a way that circumvents protective measures taken or ordered by the...

At its closed meeting on 22 March 2019, the assembly of the Landeszentrale für Medien und Kommunikation Rheinland-Pfalz (Rhineland-Palatinate Media and Communication Authority - LMK) adopted a position paper on the protection of children and young people in the media. The LMK is the regulatory body for broadcasting and telemedia services in Rhineland-Palatinate. The paper talks in particular about a technical paradigm shift. Despite legislation and the involvement of numerous actors, protection from content and the risks of Internet use is still inadequate. Children and young people are now only...

In a decision of 12 February 2019, the Verwaltungsgericht Stuttgart (Stuttgart administrative court) rejected a request from TV broadcaster tm3 for a temporary injunction against the suspension of its broadcasting licence. The court therefore confirmed the immediate enforceability of the decision to withdraw the broadcaster’s licence to organise and distribute the channel, which had been broadcast under the name “Family TV” until January. In July 2017, the Landesanstalt für Kommunikation (LFK), the regulatory body for broadcasting and telemedia services in Baden-Württemberg, had withdrawn tm3’s...

On 25 April 2019, a decision from the Junta Electoral Central (Central Electoral Commission - JEC) upheld an action brought by Ciutadans-Partido de la Ciudadanía against a decision of the Junta Electoral Provincial de Barcelona (Barcelona Electoral Commission - JEPB) of 15 April 2019, rejecting its complaint lodged against the Corporació Catalana de Mitjans Audiovisuals (Catalan Audiovisual Media Corporation - CCMA), for the broadcast of the programme 'Sense Ficció: Un procés dins el procés' on TV3 on 9 April 2019. According to Article 66.1 of the Ley Orgánica del régimen electoral general (Representation...

The Act of 22 December 2018 on combatting the manipulation of news imposed a duty of cooperation on the principle on-line platform operators in a bid to combat the circulation of “fake news”. Under the Act, the national audiovisual regulatory authority (Conseil Supérieur de l’Audiovisuel - CSA) may make recommendations to operators with a view to aiding them in implementing specific actions aimed at promoting the circulation of reliable news and combatting fake news that is “likely to disturb public order or compromise the integrity of any poll”. Following a series of hearings involving representatives...

On 5 April 2019, the Conseil d’Etat (Council of State) issued an interesting decision concerning the age rating of a documentary film containing violent images. Previously, the company that produced the documentary “Salafistes” had asked the administrative court, on the grounds of misuse of power, to annul the Minister of Culture’s decision to grant the film an “18” certificate, at the same time ordering that the following warning be given: “This film contains extremely violent and intolerant language and images that viewers may find upsetting”. The administrative court had overturned that decision,...

The criminal chamber of the Court of Cassation has issued an important decision concerning the use of hyperlinks to criminally punishable content - in this case, a video. The case was brought after a police officer in charge of a regional département’s public security lodged a claim for damages after discovering a video containing death threats against him on the Internet. Under Article 433-3(1) and (4) of the Penal Code, the penalty for making such threats is three years’ imprisonment and a fine of EUR 45,000. The defendant, who had created a direct link to the disputed video on his own website,...

As part of plans to reform the audiovisual sector (whose implementation - initially scheduled to begin before the summer but now likely to be delayed in view of the need to “make room in the legislative calendar”), the Minister for Culture announced on 26 April the launch of a public consultation process regarding the possibility of relaxing the rules for broadcasting cinematographic works on television. The rules covered by the consultation are a product of Decree No. 90‑66 of 17 January 1990 (“the Broadcasting Decree”). This text limits total broadcasting time for cinematographic works - imposing...

On 8 April 2019, the Department for Digital, Culture and Media and Sport (DCMS) launched its consultative Online Harms White Paper, which sets out the United Kingdom’s proposals for regulations that would enable the UK to be the safest place in the world to go online, as well as the best place to start and grow a digital business. The main online problems concern the misuse of online sites by terrorist groups and sex offenders, online bullying, and the use of disinformation that risks undermining democratic values and principles. Social media platforms use algorithms, which lead to “echo chambers”...

The service in question is an Urdu-language news and current affairs channel, UK44 - the United Kingdom’s first and only news and current affairs channel for the Pakistani and South Asian diaspora - which is licensed by City News Network. The issue concerned the broadcasting of abusive content amounting to “hate speech” against members of the Ahmadiyya Muslim community. Two episodes of the current affairs discussion show, Point of View, were broadcast in December 2017. According to the UK’s communications regulator, Ofcom, a guest - the same one in each programme, columnist Umar Riaz Abbas - made...

On 6 March 2019, the Italian Communication Authority (AGCOM) adopted resolution no. 74/19/CONS, by which, in accordance with Law no. 220/2016 (so-called Franceschini Law), it established the criteria to categorize audiovisual works delivered via the Internet and video-games in order to protect minors from inappropriate content. The notion of audiovisual content delivered via the Internet includes all the works that are primarily distributed via electronic communication services and networks. Video-games are defined as interactive multimedia works having recreational nature that users can enjoy...

On 18 April 2019, the Italian Data Protection Authority (Garante per la protezione dei dati personali, Garante) issued the Resolution on Electoral Propaganda and Political Communication. The Resolution, in view of the imminent 2019 European elections, provides rules that data controllers (including political parties, organizations, promoters’ and supporters’ committees as well as candidates) shall follow when processing personal data for electoral propaganda or political communication purposes. Firstly, the Resolution clarifies the point at which data controllers must obtain data subjects’ consent...

On 11 April 2019, in response to its market study into mobile-app stores, the Netherlands Authority for Consumers and Markets (Autoriteit Consument & Markt, ACM), announced that it will investigate whether Apple abuses its dominant position in its App Store. Under competition law, if a business enjoys a dominant position, this should not undermine competition, and businesses should be able to compete fairly with each other. ACM’s remit is to ensure that markets work well for businesses and their consumers. Since Apple and Google have attained strong positions in the market of mobile app stores,...

In two decisions of 26 February 2019 and 12 March 2019, the Dutch Media Authority (Commissariaat voor de Media - CvdM) fined two Dutch public service broadcasters for infringing the Dutch Media Act (Mediawet 2008). According to the CvdM, the public broadcasters are both liable for prohibited forms of expression in one of their television shows. Under the Dutch Media Act, media offered by public service broadcasters are not allowed to contain avoidable expressions (vermijdbare uitingen) that clearly have the effect of promoting the purchase of certain products or services (article 2.89). This provision...

The Consiliul Naţional al Audiovizualului (National Audiovisual Council, CNA) reminded on 9 April 2019 all the audiovisual broadcasters involved in the editorial coverage of the electoral campaign for the 26 May European elections to be held in Romania that they have the obligation to observe the legislation in the field (see IRIS 2009-6/28, IRIS 2011-3/29, IRIS 2014-5/27). Considering that in the audiovisual area between 27 April 2019, from 00:00 to 25 May 2019 to 7:00, the electoral campaign for the European elections is underway, the CNA reminded the public and private radio and television stations...

The wording of the Federal Statutes “On amendments to the Federal Statutes ‘On Communications’ and ‘On Information, Information Technologies and the Protection of Information’” states its aim to be that of enabling the Russian sector of the Internet to operate independently of the World Wide Web in the event of an emergency or foreign threat. On 16 April 2019, the Russian State Duma approved the bill in its third reading, and on 22 April, the Federation Council (the upper house of the Russian Parliament) approved it. It was signed by President Vladimir Putin on 1 May 2019 and enters into force...