IRIS newsletter 2019-7
European Audiovisual Observatory
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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 • Ulrike Welsch
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
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)
In a 1942 short story entitled Runaround, science fiction author Isaac Asimov spelled out his Three Laws of Robotics, which aimed at protecting human beings from being harmed by robots. He later added a Zeroth Law: “A robot may not harm humanity, or, by inaction, allow humanity to come to harm”.
At the time Asimov put those Laws on paper, intelligent robots were no more than science fiction. Not anymore. Artificial Intelligence (AI) is happening, and, as in any other technological development, it has its good and bad sides. As intelligent machines increasingly take over jobs that were originally performed by humans, actual rules must be devised so that AI does not harm humanity, or, by inaction, allows humanity to come to harm. The issue has become fashionable at international fora such as UNESCO and the Council of Europe, and the European Commission has also jumped on the bandwagon. On 8 April 2019, the High-Level Expert Group on Artificial Intelligence, an independent expert group set up by the Commission, published its Ethics Guidelines for Trustworthy AI.
A particular group of human beings that deserve particular protection from machines are our little ones. There are many ways in which children may come to harm when interacting with online machines, but fortunately, there are also many ways of protecting them. One example: under section 123 of the UK Data Protection Act, the Information Commissioner must prepare a code of practice that contains such guidance as the Commissioner considers appropriate in respect of standards regarding the age-appropriate design of relevant “information society” services that are likely to be accessed by children. Another example: according to the German Inter-State Agreement on the protection of minors in the media, some telemedia content that may be harmful to minors may only be transmitted if the provider ensures, through closed user groups, that it can only be accessed by adults. Content that may impair the development of children may be distributed if, for example, the provider ensures through a technical system that it cannot normally be accessed by children and young people in the relevant age groups.
Of course, nobody denies the difficulties that the protection of fundamental rights in an online environment entails. For example, incitement to hatred and calls for terrorist action online are unfortunately too common, and monitoring all of them seems like a Herculean labour. Nevertheless, unity makes strength, so when intermediaries and platforms such as Amazon, Facebook, Google and Twitter join forces with 17 national governments in an international effort to eliminate terrorist videos on the Internet, at least we know that substantial muscle is being brought to the task.
On the subject of dystopian science fiction narratives, George Orwell has 1984’s hero Winston Smith work for the Ministry of Truth, a misnomer for an official propaganda body in charge of misleading the population. This topic, misinformation, has led some countries to develop legislation to block its dissemination. It is, of course, debatable whether is it better to allow a robust, unfettered exchange of ideas, allowing thereby factual inaccuracies (whether intentional or not) to slip into the debate, or whether some kind of ex ante filter should be introduced so that fake news does not mislead the public. As an example of the latter, in France, for the first time, we have a court of law dealing with the dissemination of “fake news” being blocked during an election campaign.
This, and so much more awaits you inside this month’s newsletter, which will be the last one before the summer break.
Enjoy your read (and the summer)!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Kablis v. Russia
On 30 April 2019, the European Court of Human Rights (ECtHR) found that the blocking by Russian authorities of an activist’s social networking account and entries on his blog had breached his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The applicant, Grigoriy Kablis, had called for participation in a ‘people’s assembly’ at a square in Syktyvkar, the capital of the Komi Republic, after the local authorities had already refused Kablis’ request to organise a public event at that venue, and had proposed another specially designated location for...
CoE: Committee of Ministers
European Commission: High-Level Expert Group on Artificial Intelligence publishes Ethics Guidelines for Trustworthy AI
On 8 April 2019, the High-Level Expert Group on Artificial Intelligence (AI), which is an independent expert group set up by the European Commission, published its Ethics Guidelines for Trustworthy AI. The Guidelines are timely, given that both the Council of Europe (see IRIS 2019-4/3) and UNESCO (see IRIS 2019-1/8) have also been examining the benefits and risks of AI, and indeed, on 17 May 2019, the Foreign Ministers of the Council of Europe member States agreed to examine the feasibility of a legal framework for the development, design and application of artificial intelligence. The purpose...
EU: European Commission
European Commission: Creative Europe MEDIA publishes an overview of good gender practices
During the 72nd Cannes Film Festival, the European Commission, represented by Creative Europe MEDIA, launched the first edition of “Women on the Move” day, unveiling a brochure summarising gender-equality good practices followed by the EU’s audiovisual industry and policymakers. The brochure is the result of previous discussions during the Berlinale film festival between Creative Europea MEDIA and representatives from the industry and the public sector on the current situation regarding the support given to women within the European audiovisual sector. This was followed by a public consultation...
EBU publishes position papers on the interpretation and application of new AVMSD rules
In April of this year, the European Broadcasting Union (EBU), an alliance of 72 public service broadcasters in 56 countries in Europe, North Africa and the Near East, published two position papers on the interpretation and application of new EU rules on video-sharing platforms (VSPs) and support for European audiovisual works. In particular, the papers are intended to influence the guidelines that the European Commission is required to publish concerning the practical application of the new rules. Directive (EU) 2018/1808 amending Directive 2010/13/EU on audiovisual media services (Audiovisual...
Christchurch summit in Paris calls for stronger action against terrorist content online
Intermediaries and platforms such as Amazon, Facebook, Google and Twitter have joined forces with 17 national governments in an international effort to eliminate terrorist videos on the Internet. The “Christchurch Call to eliminate terrorist and violent extremist content online”, issued by the participants in a summit held at the Elysee Palace on 15 May 2019, will result in the tightening of the rules on live streaming. The summit was convened as a direct consequence of the 17-minute Facebook live stream of the terrorist attack carried out in Christchurch, New Zealand on 15 March. The governments...
[CZ] Broadcasting Council issues bias fine
On 30 April 2019, the Council for Radio and Television Broadcasting decided that the television broadcasting operator Barrandov Televizní Studio was guilty of committing an offence by broadcasting the Moje zprávy (My News) programme on 20 November 2018 at 8.05 p.m. on Barrandov TV. Part of the reportage Ryba smrdí od hlavy (The Fish Stinks from the Head) included allegations of problematic orders that were presented as facts, with stakeholders and those against whom the allegations were made not being able to comment on the alleged facts, and of the case being presented unilaterally without including...
[DE] Courts decide on NPD European election ads
The Bundesverfassungsgericht (Federal Constitutional Court - BVerfG) of the Federal Republic of Germany recently took two decisions in urgent proceedings concerning election campaign ads for the NPD political party, while a third case was decided by the Hessische Verwaltungsgerichtshof (Hessian Administrative Court - VGH). A number of public service television and radio broadcasters had refused to broadcast the ads. In two of the three cases, the courts decided that they had been wrong to do so. Under provisions such as Article 11(1) of the ZDF-Staatsvertrag (Inter-State Agreement on ZDF), political...
[DE] International online platform liable for copyright infringement
In a ruling of 30 April 2019 (Case no. 11 O 27/18), the Oberlandesgericht Frankfurt (Frankfurt Court of Appeal) decided that an internationally-oriented Internet platform on which literary works are published free of charge is liable for copyright infringements in Germany if it publishes German-language works that are not yet in the public domain under German copyright law and claims ownership of their content. The defendant in this case was a US-based not-for-profit corporation that operates an internationally-oriented website, www.gutenberg.org, from which more than 50 000 books, including some...
[DE] KJM approves Sky’s “Family Feature” as technical system for protecting young people in the media
According to the German Jugendmedienschutz-Staatsvertrag (Inter-State Agreement on the protection of minors in the media - JMStV), some telemedia content that may be harmful to minors may only be transmitted if the provider ensures, through closed user groups, that it can only be accessed by adults. Content that may impair the development of children may be distributed if, for example, the provider ensures through a technical system that it cannot normally be accessed by children and young people in the relevant age groups. On 15 May 2019, the Kommission für Jugendmedienschutz (Commission for the...
[DE] KJM invalidates FSM’s assessment of “JusProg” youth protection system
On 15 May 2019, the Kommission für Jugendmedienschutz (Commission for the protection of minors in the media - KJM), which comprises 12 representatives of the highest federal and state authorities responsible for youth protection and directors of the Landesmedienanstalten (state media authorities), decided that the Freiwillige Selbstkontrolle Multimedia-Dienstleister e.V. (FSM) had exceeded its scope of discretionary power in its assessment of the suitability of “JusProg” as a youth protection system within the meaning of Article 11(1) of the Jugendmedienschutz-Staatsvertrag (Inter-State Agreement...
[DE] New online rules for public service broadcasters enter into force
Under the amended German Rundfunkstaatsvertrag (Inter-State Broadcasting Agreement - RStV), which came into force on 1 May 2019, some of the rules governing the public service broadcasters’ telemedia remit have been revised. The RStV, an agreement between the German Bundesländer concerning broadcasting and telemedia, is one of the legislative cornerstones of Germany’s dual broadcasting system. In the document that entered into force in May, the rules on the retention time of public broadcasters’ programmes in online media libraries were relaxed. The so-called “seven-day rule”, under which public...
[ES] Fiscal and labour measures for the protection of creators and artists
On 6 September 2018, the Plenary of the Congress of Deputies approved the report of the subcommittee for the elaboration of the Statute of the Artist, through which the government was requested to approve urgent measures which would improve the working conditions of Spanish creators. The Statute of the Artist includes up to 75 suggestions and measures in the domains of tax nature, labour protection and social security as well as the compatibility between retirement benefits and income from copyright, whose ultimate purpose is to try to adapt the regulatory scheme applicable to the specificities...
[FR] Broadcast of a report on events covered by proceedings in the criminal courts - Conseil d’État upholds notice served by CSA on France Télévisions
In its “Envoyé Spécial” (“Special Envoy”) programme broadcast on France 2 on 14 December 2017, the national broadcaster, France Télévisions, broadcast a report entitled “Celles qui accusent” (“The Women who Accuse”) covering events denounced by two women who had worked at their local municipal offices, which had resulted in the mayor of the municipality, who was also a former government minister, being brought to court on criminal charges of rape. Two days before the broadcast, the events had been examined by the criminal court (cour d’assises) in Bobigny. The report focused on one of the two people...
[FR] Decision by Competition Authority on historic channels’ exercise of preferential rights for films originally made in French
The French Competition Authority (Autorité de la Concurrence) received an application from the companies Groupe Canal Plus, D8 and D17 (which have since become C8 and C Star) denouncing the practices applied by TF1, France Télévisions and Métropole Télévision in the marketplace for the acquisition of rights in respect of ‘catalogue’ cinematographic works originally made in French (œuvres cinématographiques d’expression originale française - referred to as ‘EOF films’). The obligations to invest in cinematographic production incumbent on the free DTT channels are set out in Decree No. 2010‑747 of...
[FR] First urgent application to block dissemination of a tweet under the Act on combating the manipulation of information
For the first time, the Paris Regional Court has dealt with an urgent application aimed at blocking the dissemination of “fake news” during an election campaign in a procedure introduced under the Act on combating the manipulation of information of 22 December 2018. On 10 May 2019, an MEP and a Left Front senator filed a summons against Twitter under Article L. 163-2 of the Electoral Code, which was introduced under the above-mentioned Act. They requested that the platform be ordered to block the dissemination of the following tweet, which had been published on the French Interior Minister’s account...
[FR] Social network regulation taskforce presents its report
A year after it was launched last May by Emmanuel Macron and Mark Zuckerberg, and shortly before the French President and Facebook’s CEO met again at the Elysée Palace, the social network regulation taskforce published its report on 10 May. The taskforce’s remit was to lay the ground for a general regulatory framework, building on the fight against online hate speech and relying on Facebook’s voluntary cooperation outside any legal framework. Discussions between Facebook and the taskforce have been held, for example, at several meetings in Paris, Dublin (home of Facebook’s European headquarters)...
[FR] Towards a new chapter for public film policy?
On 13 May 2019, the President of the Republic announced the creation of a EUR 225 million public investment fund to support companies in the cultural sector and the development of equity loans in the sector. The announcement followed the publication of a report by Dominique Boutonnat on the private financing of film and audiovisual production and distribution. Everyone in the film and audiovisual industries agrees that the funding of French audiovisual production is about to be radically transformed. They point to a number of warning signs, including a structural decline in the average budget of...
[GB] Age-appropriate design
Under section 123 of the Data Protection Act, the Information Commissioner must prepare a code of practice that contains such guidance as the Commissioner considers appropriate in respect of standards regarding the age-appropriate design of relevant “information society” services that are likely to be accessed by children. The Code must be presented to Parliament; thereafter, under section 127, it must be taken into account by the Commissioner when considering whether an online service has complied with its data-protection obligations. The Commissioner in drafting the code is required to consider...
[GB] Prince Harry accepts damages from paparazzi agency over helicopter snaps of his home
On 16 May 2019, Prince Harry, Duke of Sussex, settled privacy and data protection claims against Splash News and Picture Agency, who used a helicopter to take photographs of his home in Oxfordshire. The property is located in a secluded area surrounded by private farmland which is not accessible to photographers. In January 2019, Splash, a paparazzi agency which takes and syndicates images for commercial gain, chartered a helicopter which flew over Prince Harry’s home at low altitude allowing it to take photographs “of and into the living area and dining area of the home and directly into the bedroom.” The...
[GB] The Supreme Court considers how alleged defamatory words in a Facebook post are interpreted by the hypothetical reader
The Supreme Court determined that the defendant’s words published on Facebook were not defamatory. The original trial judge was wrong to confine his meaning of the words to two dictionary definitions, and failed to properly consider the post’s context whereby readers would momentarily glance at words and not apply “a lawyerly analysis”. Nicola Stocker (the defendant) and Ronald Stocker were spouses, but their marriage ended with Mr Stocker subsequently forming a relationship with Ms Bligh. On 23 December 2012, a Facebook exchange occurred with Mrs Stocker informing Ms Bligh that Mr Stocker had...
[IT] AGCOM sets forth new guidelines defining the restrictions on gambling and betting advertisements
On 18 April 2019, through Resolution No. 132/19/CONS, the Italian Communications Authority (AGCOM) issued guidelines (Guidelines) to implement the provisions of Article 9 of the so-called Dignity Decree (“Decreto Dignità”, Decree Law No. 87/2018). The Guidelines aim at achieving a high degree of consumer protection, with particular emphasis on “vulnerable” categories (gambling addicts, minors and seniors) by ensuring the transparency of conditions and services offered in order to promote an educated gaming choice. Consumer protection is also ensured by using the recognisable logos of the Customs...
[NL] Dutch broadcaster not liable for infringing former mayor’s right to private life
On April 30th, 2019, the Amsterdam Court of Appeal ruled that the PowNed broadcasting organisation was not liable for broadcasting secretly taped private conversations between a former Dutch mayor and a 24-year old man with whom he was romantically involved. The Court thus overturned a judgment of 31 August 2016 delivered by the District Court of Amsterdam (see IRIS 2016-10/21). The facts of the case revolve around Onno Hoes, who during his time as mayor of the Dutch city of Maastricht became involved in a marital scandal in 2013, when he was seen kissing another man. A year later, when the initial...
[NL] Media authority to work more closely with Data protection authority
On April 23rd, 2019, the Commissariaat voor de Media (the Dutch Media Authority) and the Autoriteit Persoonsgegevens (the Dutch Data Protection Authority) announced that they are intensifying the level of their cooperation with each other and that they have accordingly agreed on a cooperation protocol. Their collaborative efforts will focus on supervision and enforcement in respect of media institutions. The aim of the protocol is to set out the relationship between the authorities in this context, and to improve transparency. The general principles of the cooperation are set out in chapter two...
[RU] Supreme Court on Copyright
Following its plenary meeting on 11 April 2019, the Supreme Court of the Russian Federation issued a Resolution “On the Judicial Practice Related to Part Four of the Civil Code of the Russian Federation”. Part Four of the Civil Code was adopted in 2006 and relates to the regulation of different aspects of intellectual property (see IRIS 2007-1/31). The resolution is extensive; it has 182 paragraphs on the procedural, general and specific provisions of Part Four, such as the protection of the results of intellectual activity, the use of exclusive rights, copyright, and neighbouring rights. In particular,...