IRIS newsletter 2019-10
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)
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 • Brigitte Auel • 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)
“Information is the oxygen of the modern age. It seeps through the walls topped by barbed wire, it wafts across the electrified borders. The Goliath of totalitarianism will be brought down by the David of the microchip.” This sentence, pronounced in June 1989 by former US President Ronald Reagan, is full of the cyberoptimism prevalent in the early days of the Internet.
Thirty years later, we have become soberingly aware that the microchip is not only controlled by other giants at Silicon Valley, but also that the information freely flowing through our borders may be toxic in some cases. Certainly, nobody believes anymore that there should be no speech restrictions on the Internet. However, any judge trying to remove illegal content available online stumbles into a seemingly unsurmountable hurdle: the Internet is global, but jurisdiction is only national.
Now, the Court of Justice of the European Union (CJEU) seems to have, for the first time, shaken this apparently unmovable principle. In a judgment handed down on 3 October 2019, it ruled that EU law does not preclude a court of a member state from “ordering a host provider to remove information covered by [an] injunction or to block access to that information worldwide within the framework of the relevant international law”. Is this a first attempt at creating a worldwide cyber-jurisdiction? Probably not, but in any event, this judgment has stirred up quite a controversy about the reach of the EU’s jurisdictional grasp. Which is all the more surprising in view of the fact that in another judgment concerning the so-called “right to be forgotten”, the CJEU ruled that where a search engine operator “grants a request for de-referencing […] that operator is not required to carry out that de-referencing on all versions of its search engine, but on the versions of that search engine corresponding to all the Member States […]”. So, no jumping EU borders here. These two apparently contradictory judgments, reported hereunder, will certainly provide food for thought and debate in legal and tech circles in the months to come.
With these and many other news items, we round up the year with this last issue of the European Audiovisual Observatory’s legal newsletter.
On behalf of our team, let me wish you a good end to 2019 and an enjoyable read of our many reports!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Szurovecz v. Hungary
In the case Szurovecz v. Hungary, the European Court of Human Rights (ECtHR) has held that a refusal to grant a journalist access to a reception centre for asylum seekers in Hungary violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The ECtHR emphasised that newsgathering, including first-hand observation by a journalist reporting on a matter of significant public interest, was an essential part of journalistic research and press freedom. In 2015, the Hungarian journalist Illes Szurovecz, working for the Internet newsportal abcug.hu,...
ERGA: Report on the implementation of the European Code of Practice on Disinformation
As part of the fight against disinformation, and at the request of the European Commission – which adopted a communication entitled “Tackling online disinformation: a European approach” on 26 April 2018 – online platforms and advertising industry representatives drew up a self-regulatory European Code of Practice on Disinformation. This document comprises 15 separate commitments organised under five fields: scrutiny of ad placements; political advertising and issue-based advertising; integrity of services; empowering consumers; and empowering the research community. The Action Plan against Disinformation...
Court of Justice of the European Union: Facebook can be compelled to track illegal content worldwide
In a judgment issued on Thursday 3 October 2019, the Court of Justice of the European Union (CJEU) decided that EU law does not prevent Facebook from being ordered to monitor and remove, at worldwide level, content that is declared to be illegal in an EU member state, or content that is identical or deemed equivalent. The judgment follows a request for a preliminary ruling from the Austrian Supreme Court concerning the interpretation of Article 15(1) of Directive 2000/31/EC on electronic commerce, which prohibits member states from imposing a general obligation on providers to monitor the information...
Court of Justice of the European Union: Users must actively consent to cookies
In a judgment of 1 October 2019 in Case C-673/17, the Court of Justice of the European Union decided that the consent necessary for storing and accessing cookies on a website user’s device was not validly constituted by way of a pre-checked checkbox that the user had to deselect to refuse his or her consent. Rather, consent must be given clearly and unambiguously in relation to the specific circumstances and with the necessary information provided. The CJEU ruling follows a dispute in Germany between the Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband...
Court of Justice of the European Union: Search engines must accede to requests for the de-referencing of certain sensitive data
In its judgment of 24 September 2019, the Court of Justice of the European Union (“CJEU”) extended the prohibition to process special categories of personal data under EU data protection legislation to search engine operators acting as controllers. Building on its previous decision in Google Spain (see IRIS 2014-6/3), the CJEU ruled that operators of search engines are, in principle, required to accede to de-referencing requests regarding links to websites displaying sensitive data (for example, information related to religious or philosophical beliefs, sex life, criminal convictions, etc.), subject...
Court of Justice of the European Union: Territorial scope of the “right to erasure” limited to the EU
On 24 September 2019, the Court of Justice of the European Union (CJEU) delivered its judgment in the case of Google v. CNIL. The case builds on the Google Spain decision, in which the CJEU recognised search engine operators’ obligation to remove certain links upon request (see IRIS 2014-6/3). In the present case, the CJEU clarified the territorial scope of this obligation. Specifically, the CJEU held that EU law does not require search engine operators to remove links from all domain name extensions when granting an “erasure request”. The case concerned a dispute between Google and the French...
[CZ] Constitutional Court rejection on data retention
A group of 58 deputies sought the annulment of certain provisions of the Electronic Communications Act, the Criminal Procedure Act and the Police Act before the Constitutional Court. The proposal challenged certain provisions of the legislation on the preventive storage of traffic and location data in electronic communications with telecommunications service providers (hereinafter referred to as “data retention”) and the possibility of their subsequent provision to law enforcement services, secret services and the police. The contested legislation requires obligated entities (providers of electronic...
[DE] BILD live streams require broadcasting licence
In a ruling of 26 September 2019 (VG 27 K 365.18), the Verwaltungsgericht Berlin (Berlin Administrative Court) decided that BILD, Germany’s best-selling daily newspaper, could no longer operate at least some of its live streams without a licence.In April 2018, BILD began organising and distributing online videos entitled “Die richtigen Fragen”, “BILD live” and “BILD-Sport – Talk mit Thorsten Kinhöfer”, which can be streamed live. In July 2018, the Medienanstalt Berlin-Brandenburg (Berlin-Brandenburg media authority – mabb), applying a decision of the Kommission für Zulassung und Aufsicht (Commission...
[DE] Joyn and Prime Video streaming services classified as platforms subject to broadcasting law
The Kommission für Zulassung und Aufsicht (Commission on Licensing and Supervision – ZAK) of the Landesmedienanstalten (regional media authorities), Germany’s national media regulator whose responsibilities include regulating national media platforms, has classified the Joyn and Prime Video streaming services as platforms within the meaning of Article 52 of the Rundfunkstaatsvertrag (Inter-State Broadcasting Agreement – RStV). Munich-based Joyn GmbH is a joint venture of ProSiebenSat.1 Digital GmbH (50%) and Discovery Communications Europe Ltd. (50%). Amazon Instant Video Germany GmbH also has...
[DE] Berlin District Court rules on verbal attacks on Green Party politician
In a ruling of 9 September 2019, the Landgericht Berlin (Berlin District Court) rejected an application from a prominent German politician for information about the data of a number of users of the Facebook social media platform who had insulted her in the comments section below a post. However, the court decided that the verbal attacks did not constitute defamation and were therefore not libellous. In the controversial ruling, the judges discussed the circumstances under which the public expression of opinions about politicians constituted libel, an offence punishable under civil and criminal...
[ES] Central Electoral Commission opens sanctioning proceedings against the acting President of the Government
On 30 October 2019, the Junta Electoral Central (Central Electoral Commission – JEC) opened sanctioning proceedings against the Acting President of the Government for statements made during a TV programme and against the Acting Minister of Education and Government Spokesperson for statements made during a press conference. According to the JEC, although the statements made in the programme Al Rojo Vivo by the Acting President of the Government and candidate in the general elections of 10 November 2019 did not violate Article 53 of the LOREG concerning the prohibition on disseminating advertising...
[ES] DPA fines a supermarket EUR 150 000 for data protection infringement
On 2 September 2019, the Agencia Española de Protección de Datos (Spanish Data Protection Authority, AEPD) fined a supermarket EUR 150 000 for two infringements of the Spanish data protection legislation. On 25 April 2018, the AEPD initiated an investigation after the publication in several newspapers of images recorded by a CCTV system installed in a supermarket corresponding to events which had occurred in May 2011. The images showed the then President of the Community of Madrid supposedly putting some cosmetic products in her bag. The publication of those images was considered an infringement...
[FR] Invasion of an executive’s privacy in television reporting legitimated by the right to information
In 2016, during its “Envoyé Spécial” programme, France Télévisions broadcast a report on the crisis in milk production entitled “Sérieusement?! Lactalis: le beurre et l’argent du beurre” (“Really?! Lactalis – having its cake and eating it”). The CEO of Lactalis claimed that a sequence in the report mentioned the name of his holiday home, giving its exact location and showing aerial views of the property. Invoking invasion of privacy, he brought a claim against France Télévisions on the basis of Article 8 of the European Convention on Human Rights and Article 9 of the French Civil Code, seeking...
[FR] Le Zapping/Vu: Canal Plus claims of “parasitism” by France Télévisions are dismissed
Canal Plus, which began broadcasting the programme “Le Zapping” in 1989, announced on 27 June 2016 that it would be pulling the plug on the programme after a total of 27 years on the air. Seven months later, France Télévisions launched “Vu”, a programme based on a series of very short clips from French television programmes. The programme was co-produced by the former producer of the Canal Plus programme, who had worked on “Le Zapping” from day one and had been dismissed by the pay-TV channel a few months before the programme was taken off the air. After writing to France Télévisions, warning it...
[FR] Will there be a follow-up to Conseil d'Etat proposals for promoting access to audiovisual sports programmes?
With view to preparing for the 2024 Olympic Games, the Conseil d'État, in its annual report entitled ‘Le sport, quelle politique publique?’ (public policy on sport), makes twenty-one proposals for drawing up a more decisive and ambitious policy on sport, focusing on three priority areas: bringing together public stakeholders and associations, making access to sport more democratic, and regulating the sport economy. On this last point in particular, the Conseil d'État recalls that the broadcasting of sports events is a central feature of the funding of sport and a key issue for the audiovisual sector....
[GB] Conversational exchange between two BBC Breakfast presenters during a broadcast did not breach Ofcom’s impartiality rules
Ofcom determined that an exchange between two BBC Breakfast Time presenters about President Trump’s remarks over four female Democratic congresswomen had not breached impartiality rules. The BBC Executive Complaints Unit (ECU) had partially upheld that comments made by presenter Naga Munchetty (NM) had breached the broadcaster’s impartiality requirements. However, that decision was overturned by the BBC’s Director-General after a public outcry. Ofcom received two complaints that the Director-General’s decision to overturn the ECU’s finding had breached Ofcom’s rules on due impartiality and accuracy...
[GB] Ofcom extends the remit of the Advertising Advisory Committee
On 3 October 2019, Ofcom, the UK’s communications regulator, announced that the remit of the Advertising Advisory Committee (AAC) will be expanded so that the Committee can bring a consumer voice to both broadcast and non-broadcast advertising policy issues. In the UK, advertising is regulated through a combination of “co-regulation” and “self-regulation” systems. Co-regulation sees the Broadcast Committee of Advertising Practice (BCAP) of the Advertising Standards Authority (ASA) given responsibility for regulating the content of broadcast adverts (television and radio), under contract from Ofcom....
[IE] Current Affairs programme on Transgender did not breach Broadcasting Codes
On 24 September 2019, the Broadcasting Authority of Ireland (BAI) issued a decision rejecting three complaints relating a programme on the issue of transgender. The BAI’s Compliance Committee (unanimously) found that the public service broadcaster, RTÉ, had not infringed the requirements of the Broadcasting Act 2009 the BAI Code of Fairness, Objectivity and Impartiality in News and Current Affairs, or the Code of Programme Standards in the broadcast. The decision concerned an episode of “Prime Time”, a well-known current affairs programme broadcast twice weekly by the public broadcaster RTÉ on...
[IT] New Culture Decree results in new content and investment quotas for AVMS providers
A variety of amendments have been introduced by Law Decree No. 59/2019, the so-called Culture Decree, which later became Law No. 81/2019 in the legal framework governing audiovisual media services in Italy (the so-called TUSMAR, that is, Legislative Decree No. 177/2005). The new legislation will come into force on 1 January 2020. The main quota provisions are summarised below; different quota obligations apply to the public service broadcaster. Content quotas for broadcasters: The content quota for broadcasters would be calculated on an annual basis and would amount to a minimum of 50.01% for European...
[NL] Court allows broadcast of documentary on police shooting of young man, despite family’s objections
On 10 September 2019, the Amsterdam District Court delivered a notable judgment on the broadcasting of an investigative documentary concerning the death of a young man after a police shooting, despite objections of the deceased’s family to the broadcast. The Court rejected an application for the broadcast to be prohibited, holding that the broadcast’s interference with the family’s private life – in the light of various considerations, including the fact that the deceased’s mother had not given permission for the use of certain information – did not outweigh the public interest in the documentary...
[NL] Judgment on posting violent content on Facebook
On 2 September 2019, the Court of North Holland found an anti-racism activist guilty of publishing threatening posts on Facebook in the form of altered images targeting a well-known actor during Sinterklaas (Saint Nicholas), an annual Dutch holiday. The case arose during October 2018, when the activist posted a threat of aggravated assault by means of “sharing” two posts on his Facebook profile. The first photo depicted the accused wearing a hat reading “Sinterklaas Sniper”. The second post was a photo taken of J.F. Kennedy moments before his assassination, photo-shopped to replace the former U.S....
[PT] Court decision runs against the media regulatory body
On 26 September 2019, the Portuguese Supreme Administrative Court overturned the state media regulatory body's decision on the exercise of the right of reply by a religious organisation. The court retained previous decisions from lower courts and maintained that the regulator had to force the private television broadcaster (TVI) to disseminate the organisation’s right of reply. The episode stemmed from a set of news items entitled “The secret of Gods”, in which the Universal Church of the Kingdom of God (UCKG) was accused of having created an illegal network of child adoptions between Portugal...
[SI] Ministry of Culture carries out a consultation on a new draft media law
In June 2019, the Slovenian Ministry of Culture published a draft media law for consultation. The consultation concluded at the end of August and the responses are currently under review by the ministry. The Slovenian media sector is governed by several pieces of legislation and a range of secondary statutes and decisions. The main legislation includes: the Media Law of 2001 (last amended on 3 June 2016, the last major update being in 2006); the Law on Radio Television Slovenia of 2005 (last amended on 5 February 2014); the Audiovisual Media Services Act of 2011 (last amended on 6 November 2015);...