IRIS newsletter 2019-9
European Audiovisual Observatory
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Tel. : +33 (0) 3 90 21 60 00
Fax : +33 (0) 3 90 21 60 19
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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)
Artemiza-Tatiana Chisca, 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 • Erwin Rohwer • Ulrike Welsch
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
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)
We have been quite busy during the summer break. On top of putting in place the newsletter you are currently reading, we have produced two legal publications that will surely meet your interest. The first concerns the so-called release (or exploitation) windows, that is, the business model whereby cinematographic films are exploited in different markets (cinema theatres, VOD, Pay TV, and free TV) at different times in order to maximise profits by avoiding competition between those markets. This IRIS Plus (which you will find here) answers a.o. the following questions: why should anybody, be it the state or an industry association, tell a producer how to exploit his or her film? Why should a producer follow this chronology if he or she does not want to? Is such a system legal? Is it compatible notably with competition law? With the freedom to provide services and goods? Otherwise, which are the different systems operating in Europe?
The second publication, made under the scientific coordination of our partner, the Institute for Information Law (IViR) of the University of Amsterdam, concerns the independence of the media regulatory authorities in Europe. The regulation and supervision of the audiovisual sector, a fundamental pillar of the right to freedom of expression and information, must be placed in the hands of an institution that bows to no one, neither the government nor private third parties. Only then is it guaranteed that decisions affecting one of the most fundamental rights – indeed a cornerstone - of democracy are made without taking into consideration any spurious interests. This IRIS Special (available here) aims to bring clarity to the heterogeneous picture formed by the many different media regulatory authorities in Europe, and to advance understanding of the ways in which the revised AVMSD may have an impact on current legislation and practices.
Enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
Ad hoc committee issues recommendation on AI and human rights
On 11 September 2019, the Committee of Ministers of the Council of Europe set up an ad hoc committee on Artificial Intelligence (CAHAI). The purpose of the ad hoc committee is to examine (on the basis of broad multi-stakeholder consultations) the feasibility and potential elements of a legal framework for the development, design and application of artificial intelligence; such an initiative would be based on Council of Europe standards regarding human rights, democracy and the rule of law. This follows the Helsinki meeting in May 2019 of the foreign ministers of the Council of Europe member states...
European Court of Human Rights: Pryanishnikov v. Russia
The European Court of Human Rights (ECtHR) has delivered a judgment concerning the refusal to grant a film reproduction licence to a Russian film producer on the ground that he was suspected of producing and distributing pornographic films. The ECtHR found that the refusal was a too far-reaching and non-justified restriction on the film producer’s freedom of expression, violating Article 10 of the European Convention on Human Rights (ECHR). The applicant in Pryanishnikov v. Russia is a film producer who owns the copyright to over 1 500 erotic films. The films were approved for public distribution...
Court of Justice of the European Union: German rules protecting press publishers overturned following procedural irregularities
In a judgment of 12 September 2019 in Case C-299/17 (VG Media Gesellschaft zur Verwertung der Urheber- und Leistungsschutzrechte von Medienunternehmen mbH v Google LLC), the Court of Justice of the European Union decided that the German regulation that prohibits search engines from using short texts or text excerpts ('snippets') without the publisher’s prior permission was inapplicable because it had not been notified to the Commission before it was adopted. It should have been notified because the corresponding provisions of Articles 87f and 87g of the German Gesetz über Urheberrecht und verwandte...
Court of Justice of the European Union: Poland seeks annulment of Article 17 of the DSM Directive
On 12 August 2019, Poland’s application to the Court of Justice of the European Union (CJEU) seeking annulment of a provision in the recently adopted Directive 2019/790 on Copyright in the Digital Single Market (DSM Directive) was published in the Official Journal of the European Union. The DSM Directive was adopted on 17 April 2019 (see IRIS 2019-4/5), and Poland’s action was brought on 24 May 2019. The application seeks annulment of two provisions under Article 17 of the DSM Directive concerning the liability of “online content-sharing service providers” for content uploaded by users. First,...
Court of Justice of the European Union: Copyright protection cannot be based on aesthetic effect
Copyright protection does not apply when clothing design produces a specific aesthetic effect. That was the decision reached by the European Court of Justice on 12 September 2019 in respect of a dispute between two Portuguese companies (Judgment ECLI:EU:C:2019:721). The case involved two companies that design, produce and commercialise clothing: G-Star Raw CV and Cofemel - Sociedade de Vestuário SA. Cofemel is a dominant company in the textile sector in Portugal and had been accused by G-Star Raw CV of copying the design and model of its jeans, sweaters and T-shirts. In other words, G-Star Raw...
[BE] A ‘Netflix tax’ in Flanders? The participation of non-linear broadcasters in the production of Flemish audiovisual works
Pursuant to a Flemish Decree of 29 June 2018, an obligation for non-linear television broadcasting organisations to participate in the production of Flemish audiovisual works on an annual basis was introduced in Article 157, paragraph 2 of the Flemish Media Decree. This “incentive scheme” (stimuleringsregeling) applies both to non-linear television broadcasters that are established in the Flemish Community and to non-linear television broadcasters that are established in a member state of the European Union and offer non-linear television services aimed at the Flemish Community. A private non-linear...
[CH] Proposed Electronic Media Act replaced with rapidly implementable support measures
The Swiss government (Bundesrat) has abandoned its plan to fundamentally reform media law. It had originally planned to replace the existing Radio- und Fernsehgesetz (Radio and Television Act – RTVG) with a new Bundesgesetz über elektronische Medien (Electronic Media Act – BGeM) and, in June 2018, had launched a public consultation with interested parties concerning its draft Electronic Media Act (see IRIS 2018-06/11). Under the draft tabled in 2018, public funding for services forming part of the public service would no longer have been limited to radio and television. Online media would also...
[CZ] Broadcasting Council fined unfair commercial practice
The Council for Radio and Television Broadcasting – as the central administrative authority within the the field of its activities, as specified by § 7 (a). a) of Act No. 40/1995 Coll., on the regulation of advertising and amending and by supplementing Act No. 468/1991 Coll., on the operation of radio and television broadcasting – has issued a fine for unfair commercial practice. The company on which the fine was imposed – Wise Women, Ltd., ID 04937961, with its registered office in Prague – was found to have committed an offence under the provisions of Article 2, para. b) of Act No. 40/1995 Coll....
[DE] Administrative Court suspends KJM decision on 'JusProg' youth protection system in summary proceedings
In a decision taken in summary proceedings on 28 August 2019, the Verwaltungsgericht Berlin (Berlin Administrative Court) temporarily removed the immediate enforceability of a decision taken by the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) denying the suitability of the ‘JusProg’ youth protection system. The court ruled that the KJM’s decision that the Freiwillige Selbstkontrolle Multimedia-Dienstleister e.V. (FSM) had exceeded its scope of discretionary power by declaring the system suitable was unlawful. On 2 February 2019, the FSM, a recognised...
[DE] Cartel authority approves ProSiebenSat.1 and RTL addressable TV and online video joint venture
The RTL Deutschland media group and ProSiebenSat.1 have established a joint demand-side platform known as ‘d-force’. Demand-side platforms (DSPs) enable advertisers, on a central platform, to buy advertising space for specific target groups on various channels, which is then placed in an automated algorithm-based system. They are the counterpart of so-called sell-side platforms (SSPs), which manage the sale of individual advertising spaces. Both TV groups announced at the beginning of August that the German Bundeskartellamt (Federal Cartel Office) had approved their joint venture. In future, advertising...
[DE] OLG Düsseldorf expresses serious doubt over legality of Bundeskartellamt's Facebook decision
In a decision of 26 August 2019 (Case no. VI-Kart 1/19 (V)), the Oberlandesgericht Düsseldorf (Düsseldorf Higher Regional Court – OLG Düsseldorf) temporarily lifted the order issued against Facebook by the Bundeskartellamt (Federal Cartel Office – BKartA) at the start of the year concerning the social network’s combination of user data (see IRIS 2019-4/10). It thought the prohibition notice and termination order issued by the Cartel Office were potentially unlawful and should therefore not take effect until a final court decision had been reached. The OLG Düsseldorf’s judgment followed the Cartel...
[DE] Supreme Court rules that report on nude photo blackmail can infringe privacy rights
In a ruling of 30 April 2019 (Case no. VI ZR 360/18), the Bundesgerichtshof (Federal Supreme Court – BGH) decided that the BILD newspaper had infringed the right to privacy of pop star Lena Meyer-Landrut by publishing a report about nude images of the singer. The report followed the theft, by unknown individuals, of a laptop owned by the singer’s boyfriend that contained private images of the singer. The thieves then demanded that the singer pay a large sum of money to prevent them from publishing the images. The BILD newspaper wrote that “spicy photos of the pop star” would be accessible “with...
[DE] Supreme Court upholds decision against operators of Altermedia Deutschland web platform
In a recently published decision of 5 June 2019, the German Bundesgerichtshof (Federal Supreme Court – BGH), Germany’s highest civil and criminal court, largely confirmed several prison sentences imposed against the operators of the right-wing extremist Internet platform ‘Altermedia Deutschland’. The defendants had appealed against a ruling of the Oberlandesgericht Stuttgart (Stuttgart Higher Regional Court) imposing immediate or suspended prison sentences on one of them for leading a criminal organisation and sedition, and on the others for being members of a criminal organisation and sedition...
[FR] Conseil d'Etat clarifies scope of “must-carry” obligation of distributors of audiovisual services
A decision taken by the Conseil d’Etat on 24 July 2019 finally ended a long-running dispute dating back to 2014 between the public broadcaster, France Télévisions, and the Playmédia company. Playmédia live-streams television programmes on its website (playtv.fr) and receives most of its funding from advertising. The Conseil d’Etat, referring to a judgment of the Court of Justice of the European Union (CJEU), explained the scope of the “must-carry” obligations of distributors of audiovisual services. Article 34-2 of the Act of 30 September 1986 lays down a “must-carry” obligation requiring distributors...
[FR] Court of Cassation rules on deep links and audiovisual communication company's neighbouring rights
In a judgment of 4 July 2019, the Court of Cassation drew a line under the intellectual property element of the dispute between public broadcaster France Télévisions and Playmédia, a company that live-streams television programmes on its website (playtv.fr) and receives most of its income from advertising. In 2016, Playmédia was ordered by the Paris Appeal Court to pay EUR 200 000 to France Télévisions for infringing its “neighbouring rights” and EUR 150 000 on the grounds of unfair competition for allowing access to its playtv.fr website to programmes broadcast by France Télévisions on its own...
[FR] Culture Minister clarifies various aspects of audiovisual reforms
At the start of September, the French Minister of Culture, Franck Riester, hosted key representatives of the audiovisual sector for a final series of consultations concerning the previously announced audiovisual reforms. After its subsequent examination by the Conseil Supérieur de l'Audiovisuel (the national audiovisual regulatory authority – CSA) and the Conseil d’Etat, the draft law should be presented to the Council of Ministers in early November before being discussed by the National Assembly in January 2020. One objective of the reforms is to “provide a level playing field for television...
[FR] Google has no intention of paying neighbouring rights to French press publishers
Taking note of the entry into force on 25 October this year of the Act of 24 July 2019 allocating a “neighbouring right” to press publishers and agencies when their content is taken up on on-line platforms and other aggregators, Google announced its intention to “make changes in the way news-related search results are displayed”. It should be recalled that although France is the first country to have transposed Article 15 of the new Copyright Directive, other countries should also be falling into line. Under the new Act, the search engine’s use of article excerpts (‘snippets’) may be negotiated...
[GB] Political activist imprisoned after contempt of court retrial
The former leader of political activists the English Defence League (EDL) Tommy Robinson (his real name is Stephen Yaxley-Lennon) was imprisoned for nine months after a retrial by judges of the Central London Criminal Court (known as the Old Bailey) concerning an incident which occurred in May 2018, when, outside Leeds Crown Court, he filmed defendants attending trial accused of the sexual exploitation of young girls. The footage, which was in breach of a reporting ban, was livestreamed from outside Leeds Crown Court while the jury was considering its verdict. Mr Robinson argued in his defence...
[IT] AGCOM launches procedure to identify positions harmful to pluralism in the online advertising sector
On 9 September 2019, the Italian Communications Authority (“AGCOM”) published resolution no. 356/19/CONS (“Resolution”) with a view to starting a procedure for identifying the existence of dominant positions or positions that are at any rate harmful to pluralism in the online advertising sector. More specifically, Article 43, para. 2 of Legislative Decree no. 177/2005 (“the TUSMAR”, or “AVMS Code”) establishes that AGCOM has the power to initiate such a procedure with the goal of verifying the existence of dominant positions (or positions that are at any rate harmful to pluralism) on the basis...
[NL] Court orders Dutch broadcaster BNNVARA to broadcast rectification over YouTube episode
In a decision of 11 July 2019, the Midden-Nederland District Court ordered broadcaster BNNVARA to broadcast a rectification in respect of a #BOOS YouTube episode (“boos” means “angry” in Dutch). The episode contained unproven and incorrect statements about two Dutch real estate entrepreneurs, according to the court. The YouTube series calls upon angry viewers to complain about various topics, such as dismissals, lost packages or expensive mobile phone subscriptions. In each episode the host aims to solve an angry viewer’s problem. #BOOS has won various awards, such as the Best Social Award 2019...
[NL] Court prohibits journalist from publishing certain classified information
In a decision of 12 July 2019, the Amsterdam District Court prohibited a journalist from publishing certain information in a forthcoming book. According to the court, the argument that the publication of the information could put a source from the Dutch secret service in a life-threatening situation was sufficiently convincing. Investigative journalist Huib Modderkolk works for the Dutch newspaper De Volkskrant. The journalist intended to publish a book entitled “Het is oorlog maar niemand die het ziet” ("It's war, but no one sees it") in September 2019. The journalist sent a manuscript to the...
[RO] Audiovisual rules for the 2019 Presidential elections
On 3 September 2019, the Consiliul Naţional al Audiovizualului (National Audiovisual Council - CNA) adopted Decision No. 781/2019 with regard to the rules which apply to the audiovisual electoral campaign for the election of the President of Romania in 2019 (see, inter alia, IRIS 2009-10/24 and IRIS 2014-10/30). The elections will be held on 10 November 2019 (first round) and on 24 November 2019 (second round). As a first, the elections abroad, for Romanians living outside the country, will last 3 days for each round (8-10 November and 22-24 November, respectively). The audiovisual electoral campaign...
[TR] Bianet blocked temporarily as result of mistake by Gendarmerie General Command
In response to a request from the Gendarmerie General Command on 16 July 2019, the 3rd Penal Court of Peace in Ankara issued a ruling that blocked access to 136 news sites and social media accounts in Turkey. Order 2019/5538 was issued on the basis of Article 8/A of Act No. 5651 on the regulation of publications on the Internet, which allows judges to order the removal of, or block access to content in order to protect the right to life or the security of life and property, to protect national security and public order, to prevent a crime from being committed, or to protect public health. The blocked...