IRIS newsletter 2019-8

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 •  Erwin Rohwer • Ulrike Welsch

Corrections:

Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Julio Talavera Milla • 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

September is the month of wine harvesting in many regions of Europe. After one year of patient cultivation, grapes are carefully picked from the grapevines to be selected, fermented and bottled as Bacchus' divine nectar. Red, white or rosé, still or sparkling, there is one for every palate.

Our september newsletter also provides a rich harvest with articles catering for every interest. For example: are you interested in the transposition of the Audiovisual Media Services Directive? We report on legislative amendments in Cyprus aimed at harmonising the Law on Radio and Television Organisations with the AVMS Directive.

Do you care about the development of case law in the field of the media? We report, among other things, on four decisions of the Court of Justice of the European Union: 1) on the use of protected works in the reporting of current events; 2) on the importance of freedom of information and freedom of the press in relation to the Copyright Directive; 3) on how imposing pay-to-view restrictions on foreign TV channels owing to “incitement to hatred” is permissible under the AVMS Directive; 4) on the legality of sampling.

And if you want more, we have on our menu a decision of the German Federal Constitutional Court on the difference between expressing an opinion and making defamatory statements, plus a judgment of the European Court of Human Rights on Brzeziński v. Poland.

You can also read about media literacy in the United Kingdom, about the European Commission’s clearing of the Vodafone/Liberty Global cable deal, about Facebook being fined EUR 2 million in Germany, about the Turkish Regulation on Radio, Television, and Optional Broadcasting Services Provided on the Internet, and many, many other interesting issues – it's all there in the current pages of our newsletter.


Enjoy your read!

Maja Cappello, editor
European Audiovisual Observatory

International

COUNCIL OF EUROPE

In its committee judgment in the case of Brzeziński v. Poland, the European Court of Human Rights (ECtHR) unanimously held that there has been a violation of Article 10 of the European Convention on Human Rights (ECHR) with regard to the applicant’s right to freedom of expression as a politician at election time. The case concerns in particular a provision in Poland’s election law which allows a court, within 24 hours, to consider whether ‘untrue information’ has been published, and to issue an order prohibiting its further distribution. In October 2006, during a political campaign for election...

EUROPEAN UNION

In a judgment of 29 July 2019 (Case no. C-516/17 – Spiegel Online v Volker Beck), the European Court of Justice (ECJ) decided that, in principle, the use of a protected work in the reporting of current events does not require the author’s prior consent under the Copyright Directive (2001/29/EC). The quotation of a work by means of a hyperlink is also permitted as long as the quoted work, in its specific form, has previously been made available to the public with the rightsholder’s authorisation or in accordance with a non-contractual licence or statutory authorisation.  The dispute concerned politician...

In a judgment of 29 July 2019 (Case no. C-469/17, Funke Medien NRW GmbH v Bundesrepublik Deutschland), the European Court of Justice (ECJ) explained that freedom of information and the freedom of the press cannot justify derogations from the rights of authors beyond the exceptions or limitations provided for in the Copyright Directive (Directive 2001/29/EC). The court’s decision was surprisingly clear, given that, both at national level and in the Opinion of the Advocate General, the right to protection of the disputed ‘Afghanistan papers’ had been seriously questioned.  The decision follows a...

In a ruling of 29 July 2019, the Court of Justice of the European Union strengthened the rights of artists with regard to so-called sampling and decided that the use of sound samples taken from a phonogram may, under certain circumstances, be used in a new piece of music without the consent of the phonogram producer. At the same time, however, a special rule on ‘free use’ in German copyright law was classified as incompatible with EU law. The procedure concerned a legal dispute in Germany that has gone unresolved for more than 20 years. In 1997, the composers Moses Pelham and Martin Haas had copied...

The Commission has approved the proposed acquisition by Vodafone of Liberty Global's cable business in the Czech Republic, Germany, Hungary and Romania, subject to full compliance with a series of commitments proposed by Vodafone. These commitments reflect the Commission's competition concerns, in particular as regards the position of broadcasters and consumers on the German market. The proposed transaction as such would, for example, strengthen the market power of the merged entity, thereby hindering the position of broadcasters in the wholesale provision of signals for the transmission of television...

On 4 July 2019, the Court of Justice of the European Union (CJEU) delivered a judgment on whether Lithuania’s media authority could impose an obligation on all broadcasters requiring that a UK-based channel could be broadcast in Lithuania only in pay-to-view packages, as it had found that one of its programmes “contained information that incited hatred”. The CJEU held that such a measure did not infringe Article 3(1) of the Audiovisual Media Services Directive (AVMSD), which provides that member states “shall not restrict retransmissions” of broadcasts from another member state. The case concerned...

NATIONAL

In a decision of 23 July 2019 (KOA 1.960/19-197), the Austrian communication regulator KommAustria ruled that a video produced by the Freiheitliche Partei Österreichs (Freedom Party of Austria – FPÖ) on the theme of “E-Card fraud” was discriminatory and therefore violated Article 31(3)(2) of the Audiovisuelles Mediendienste-Gesetz (Audiovisual Media Services Law - AMD-G). The FPÖ operates the on-demand audiovisual service ‘FPÖ-TV’ and has registered its own YouTube and Facebook channels with KommAustria. Via its on-demand service, it posted a video about measures taken by the government at the...

On 11 July 2019, the Conseil supérieur de l’audiovisuel belge(Higher Audiovisual Council of the French-speaking community of Belgium – CSA) adopted a series of decisions allocating radio frequencies for the broadcastingof radio services(including digital services). The implementation of these decisions will help to increase the number of digital (DAB+) radio stations in Belgium. This is the final stage of a tender procedure lasting several months. Initially, on 21 December 2018, the government of the French-speaking Community of Belgium had adopted a decree setting out the tender procedureunder...

The House of Representatives amended the law on public service media (PSM) - the Cyprus Broadcasting Corporation (RIK) Law, so that, among other things, it is better harmonised with the acquis communautaire. Amendments were made on the basis, among other considerations, of observations in the framework of the EU Pilot  project. They relate to a variety of issues, such as the spectrum of services offered, membership of the corporation’s governing council, commercial messages, the protection of minors and the powers of the Cyprus Radio Television Authority over the PSM. The main provisions of the...

The House of Representatives has adopted a number of amendments to the basic law on Radio and Television Organisations 7(I)/1998 in order to fully harmonise its provisions with the AVMS European Directive. According to the explanatory report attached to the draft of the amended law, the amended sections of the law relate to a variety of issues, with some deemed necessary on the basis of observations made within the framework of "EU Pilot" (an ongoing informal dialogue between the Commission and the EU member states about issues related to potential non-compliance with EU law). The main amendments...

Eight years after the television digital switch-over in July 2011, Cyprus audiovisual media service providers continue operating with temporary digital licences. The latest extension of licences will be until the end of June 2020. Law 92(I)/2019 amending the basic Law on Radio and Television Organisations L. 7(I)/1998 authorises the Radio Television Authority to extend the validity of TV licences for all operating service providers for one more year. The law was published in the Official Gazette on 28 June 2019. The temporality of licences is justified by the pending amendments to the basic Law...

In a decision of 14 June 2019, the Bundesverfassungsgericht (Federal Constitutional Court) issued a decision explaining the conditions under whichthe expression of an opinion should be categorised as defamatory criticism, meaning it was not protected under the freedom of expression enshrined in Article 5(1)(1) of the Grundgesetz (Basic Law). Thedecidingfactor was whether the remarks had a factual basis. Whether they represented an insult under criminal law depended on the balance between freedom of expression and the personality rights of the individual concerned. In the case at hand, the plaintiff...

In a decision of 12 July 2019, the Oberverwaltungsgericht Nordrhein-Westfalen (North Rhine-Westphalia Higher Administrative Court) confirmed the decision of the Bundesnetzagentur (Federal Networks Agency) to ban Deutsche Telekom’s ‘StreamOn’ service in its current form and rejected an appeal against a first-instance summary judgment of the Verwaltungsgericht Köln (Cologne Administrative Court). ‘StreamOn’ is a so-called zero-rating service, which means that the data used to stream audio and video services from certain content providers is not deducted from mobile customers’ monthly data allowances....

On 3 July 2019, the Bundesamt für Justiz (Federal Office for Justice – BfJ) fined Facebook Ireland Limited EUR 2 million for infringing the Netzwerkdurchsetzungsgesetz (Network Enforcement Act – NetzDG) in its transparency report for the first half of 2018. Since 1 January 2018, as a social network provider, Facebook has been obliged under Article 2(1) NetzDG to submit a report in German twice a year explaining how it has dealt with complaints about illegal content, and to publish these reports in the Federal Gazette as well ason its own website. According to Article 1(3) NetzDG, unless it is justified,...

The Criminal Court nº 4 of Murcia acquitted the administrators of the websites "filmsyonkis.es", "seriesyonkis.es" and "videosyonkis.es" from 2008 to 2014of a crime against intellectual property. The judgement considered proven that the aforementioned pages contained links or hyperlinks, classified according to different criteria, preceded or not by a synopsis of the work and its cover, with a discussion forum, and limited themselves to redirecting visitors to external mega servers (mainly Megavideo and Megaupload) which host audiovisual works protected by intellectual property rights uploaded...

In recent weeks, Spanish courts have authorised the implementation of different measures proposed by the Sección Segunda de la Comisión para la Propiedad Intelectual (the Second Section of the Intellectual Property Commission) – also known as the "Anti-Piracy Commission" – ordering operators to block access to websites that have illegally made available for download copyrighted content without the rights holders’ authorisation. One case concerned the websites www.grantorrent.com and www.grantorrent.net, which illegally offered download links to hundreds of content material without authorisation....

Several years ago, a person registered a domain name that included the name of a law firm, without using it. The law firm, incorporated as a company in 2015, was using the .eu country code Top Level Domain (ccTLD), but also wanted to register the .es ccTLD that was registered by that person. The law firm contacted the domain owner in order to try to reach an agreement, but the domain owner instead asked for a high amount of money. The law firm filed a lawsuit against the domain owner. The Commercial Court (Juzgado de lo Mercantil) nº 1 of Valencia ruled that the law firm was entitled to register...

On 9 July 2019, French MPs adopted a bill to combat online hate speech by 434 votes to 33, with 69 abstentions. The bill, called for by the President of the Republic and tabled by majority party MP Laetitia Avia, requires Internet platforms and search engines – if they meet various thresholds that will be set by decree – to remove or block content that is "obviously"illegal within 24 hours of it being reported, or risk a fine of up to EUR 1.25 million. The content concerned is that which “obviously infringes the provisions of Article 6(I)(7)(3) of the Law ontrust in the digital economy (LCEN) and...

The French Minister of Culture, Franck Riester, has welcomed the adoption of the law of 24 July 2019 creating a neighbouring right for news agencies and news publishers, noting that “France is the first country to transpose the EU directive on neighbouring rights [Directive 2019/790 on copyright and related rights in the Digital Single Market] into national law.” In accordance with Article 15 of the directive, the law provides news publishers and news agencies with the right to remuneration for any reproduction and communication to the public of news content in digital form. The rights provided...

The Law creating a neighbouring right for news agencies and news publishers will not be the last piece of copyright legislation in France. At the start of July, the Minister of Culture, Franck Riester, announced the “next stages” of work to transpose the EU Copyright Directive. “The government is continuing to work on all the other topics in an effort to quickly transpose the essential provisions,” he said. Referring to Articles 17 and 18 of the new law, which aims to oblige online platforms to pay fair remuneration to creators for the content that they redistributeand fair and proportional remuneration...

Act No. 2019-759 of 24 July 2019 “creating a tax on digital services and changing the trajectory of corporate tax cuts” was gazetted on 25 July 2019. The "GAFA tax", which was promoted by Minister of the Economy and Finance Bruno Le Maire, is based on European draft legislation that was not passed because of reticence on the part of several European Union member States. That leaves France as a pioneer. The newly-created tax amounts to 3% of the turnover generated by certain digital activitiesin France. It covers revenue from targeted on-line advertising, connecting Internet users on platforms,...

Generally, under Section Four of the Broadcast Code of Advertising Practice, advertisements must not be harmful or offensive. Advertisements must take account of generally accepted standards in order to minimise the risk of causing harm or serious or widespread offence. The context in which an advertisement is likely to be broadcast must be taken into account in order to avoid unsuitable scheduling.  The newly-added rule states that “Advertisements must not include gender stereotypes that are likely to cause harm, or serious or widespread offence”. During August, the Advertising Standards Authority...

Ofcom has published two reports concerning public service broadcasters (PSBs) in fulfilment of its obligation under the Digital Economy Act 2017 to review the prominence of PSBs. The first report, entitled "Review of Prominence for Public Sector Broadcasting", explains the regulator's recommendations to government to ensure that PSBs remain easy for TV viewers to find and watch on connected services and devices. The second report, "The Future of Public Service Media", gives Ofcom’s view as to the future of public service media. In the first report, Ofcom proposes legislation to guarantee public...

RT has been fined GBP 200 000 by Ofcom following its previous decision (see Iris 2019-3/17) that the broadcaster had breached the regulator’s due impartiality Code of Conduct rules concerning seven programmes broadcast by the channel over a period of approximately seven weeks between 17 March 2018 and 4 May 2018, primarily concerning the poisoning of Sergei Skripal and his daughter, Yulia, in Salisbury on 4 March 2018. One of the seven programmes concerned coverage of the Syrian conflict and adopting a pro Russian stance without acquiring alternative or opposing opinions. The Ofcom licence for...

On 18 July 2019, Ofcom, the UK’s communications regulator, announced the launch of a media literacy network and the creation of a media literacy advisory panel as part of its "Making Sense of Media" programme. As Ofcom points out, “in an online environment, where the possibility for direct content regulation diminishes, the need for a media-literate public increases.” The regulator’s "Making Sense of Media" programme aims to help adults and children in the UK acquire the necessary skills, knowledge and understanding to make use of traditional and new communication services. The programme builds...

On 24 June 2019, the Broadcasting Authority of Ireland (BAI), the country's independent regulator for radio and television broadcasters, published its submission to the Irish Government’s "Public Consultation on the Regulation of Harmful Online Content on Online Platforms and the Implementation of the Revised Audiovisual Media Services Directive" (AVMSD (EU) 2018/1808). The public consultation was initiated by the Communications Minister, Richard Bruton, in March 2019, in response to the European Council’s adoption of the revised AVMSD, which all EU member states are required to transpose into...

On 2 August 2019, the Minister for Communications, Climate Action and Environment, Richard Bruton TD, published the Broadcasting (Amendment) Bill 2019 (hereinafter ‘the Bill’). The purpose of the Bill is to make amendments to certain provisions of the Broadcasting Act 2009. The Bill comprises eleven sections and contains several key provisions. The Bill makes three main amendments to section 33 of the Broadcasting Act 2009, which is the section that authorises the Broadcasting Authority of Ireland (BAI), the independent regulator for radio and television broadcasters, to impose a levy on broadcasters...

In a decision of 17 May 2019 the Icelandic Media Commission came to the conclusion that the national lottery draw in Iceland should be regarded as advertising and thus should count towards the total amount of advertising minutes permitted within an hour. The case is considered to be a landmark case since the national lottery draw has been allowed for decades without the event being categorised as a "commercial communication". In 2018 the Media Commission received a complaint from a commercial media company concerning a possible breach of advertising rules in connection with the national lottery...

With a landmark decision published on 12 July 2019, the Court of Rome found Dailymotion SA (Dailymotion) liable for copyright infringement against Reti Televisive Italiane S.p.A. (RTI) and condemned it to pay EUR 5.5 million in compensation for damages. The judges also ordered Dailymotion to (i) remove from its services all RTI’s audiovisual content examined during the proceedings; (ii) abstain from further exploiting for commercial purposes the same audiovisual content; (iii) pay EUR 5 000 for any future infringements; and (iv) pay the legal fees and expenses. In addition, RTI has been authorised...

On 14 June 2019 the Garante per la protezione dei dati personali(Italian Data Protection Authority – Garante) issued a EUR 1 million fine against Facebook Italy S.r.l. and Facebook Ireland (together “Facebook”) in relation to the Cambridge Analytica case. Specifically, the Garante took action following the news that Facebook had communicated its users’ personal data to Cambridge Analytica, a third company providing analytics services. The Garante found that the personal data of 57 Italian users (who downloaded the app “Thisisyourdigitallife”) had been unlawfully communicated to Cambridge Analytica....

On 12 June 2019, the Amsterdam District Court delivered a ruling on copyright and the use of portrait photographs in online news articles. In 2013 the claimant, a photographer, was asked by a third party to photograph an economist/journalist for an interview. Separately, the portrait was used several times on the website of Dutch News, a small online news outlet. The economist had sent his portrait photograph to Dutch News to accompany online news articles. The news platform used the portrait photograph at least 20 times on its website. The photographer who created the photograph, however, considered...

On 11 June 2019, the Commissariaat voor de Media (the Dutch Media Authority - CvdM) delivered a decision ruling that the planned introduction of targeted television advertising by the telecommunications company KPN and media company Talpa was permissible under the Media Act (Mediawet). KPN offers various TV packages via set-top box and the KPN iTV app, while Talpa owns the Dutch commercial television channels SBS6, SBS9 and Net5, which are distributed as part of KPN packages. Advertising spots are broadcast between programmes on these channels, and in order to increase revenue from television advertising,...

The Consiliul Naţional al Audiovizualului(National Audiovisual Council, CNA) adopted Decision No. 614 of June 11, 2019, for amending and completing Decision No. 220/2011 of the National Audiovisual Council with regard to the Code of Regulation of the Audiovisual Content. The decision was published in the Official Journal of Romania No. 517 of June 24, 2019, Part I (see, inter alia, IRIS 2014-5/28 and IRIS 2017-4/31). After Article 41 (1) c), a new paragpraph (d) was introduced which stipulates that audiovisual media service providers cannot broadcast: "images from funerals, except for news and/or...

The Consiliul Naţional al Audiovizualului (National Audiovisual Council, CNA) focused on very sensitive cases which have been covered intensively by the mass media over the last few months. The CNA issues sanctions or warnings (see IRIS 2010-8/42, IRIS 2011-1/44, IRIS 2012-1/39, IRIS 2012-4/36, ans IRIS 2017-6/27). On 29 July 2019, the National Audiovisual Council called onbroadcasters to act in a decent and responsible manner in the case of crimes in Caracal, southern Romania, and to respect fundamental human rights and freedoms, the protection of human dignity and the right to one's own image,...

As previously reported in the IRIS Newsletter (IRIS 2018-10/25), the Regulation on Radio, Television, and Optional Broadcasting Services Provided on the Internet (Radyo, Televizyon ve İsteğe Bağlı Yayınların İnternet Ortamından Sunumu Hakkında Yönetmelik) entered into forced on 1 August 2019. The regulation is applicable to national and foreign broadcasters offering radio, television, and on-demand broadcasting services via the Internet. Such broadcasters could be either media service providers or platform operators, and the regulation leaves out of scope the individual communication services (excluding...

OSCE

On 23 July 2019, the OSCE Representative on Freedom of the Media (RFoM) sent the Prime Minister of Albania, Edi Rama, a legal analysis that examines a series of proposed amendments to Law No. 97/2013 on Audiovisual Media in the Republic of Albania and to Law No. 9918 of 19 May 2008 on Electronic Communications in the Republic of Albania. This communication is part of a long process of consultation between the Office of the Representative and the government during the long – and still ongoing – drafting process of the legislation. Despite the fact that there have been important improvements compared...