IRIS newsletter 2020-1
Publisher:
European Audiovisual Observatory
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F-67000 STRASBOURG
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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)
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
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 • Sonja Schmidt • 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
ISSN 2078-6158
© 2020 European Audiovisual Observatory, Strasbourg (France)
Editorial
Almost twenty-five years ago, the European Audiovisual Observatory proudly presented the first issue of a new legal publication: IRIS - Legal Observations of the European Audiovisual Observatory. At the time, IRIS was marketed as a print-only publication and had a successful career until the end of 2009 when, modern times oblige, we decided to transform it into an electronic newsletter. Now, almost ten years on, we believe the time has come to give IRIS a facelift in order to make it conform to the new graphic identity of the Observatory. We hope that this graphic revamp, which also includes our legal database IRIS Merlin (http://merlin.obs.coe.int/), is to your liking.
Despite the newsletter looking quite different now, its mission remains the same as the one which inspired its creation almost 25 years ago: keeping you up-to-date and well informed about all legal developments relevant to the European audiovisual sector, providing the accurate, fact-oriented, neutral reporting that you may already have come to know and appreciate thus far.
Enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
International
COUNCIL OF EUROPE
Croatia
European Court of Human Rights: Vučina v. Croatia
In Vučina v. Croatia, the European Court of Human Rights (ECtHR) has held that the level of seriousness associated with the erroneous labelling of a photograph in a lifestyle magazine and the inconvenience the named person may have suffered did not give rise to an issue under Article 8 of the European Convention on Human Rights (ECHR), neither in the context of the protection of the applicant’s image nor of her honour and reputation. The ECtHR dismissed the complaint that the domestic courts had failed to protect the applicant’s image and honour, also observing that the Croatian judicial...
Hungary
European Court of Human Rights: Herbai v. Hungary
In Herbai v. Hungary, the European Court of Human Rights (ECtHR) has held that the dismissal of an employee for publishing articles on a website that could tarnish the reputation of his employer violated the employee’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The ECtHR found that there was an absence of fair balance between the employee's right to freedom of expression and the employer’s right to protect his legitimate business interests, especially as there was no evidence of damage to the business interests of the...
EUROPEAN UNION
EU: European Commission
“Stakeholder dialogue” meetings on Article 17 of the DSM Directive
In October and November 2019, the European Commission organised three “stakeholder dialogue” meetings, as required under Article 17(10) of the recently-enacted Directive on Copyright in the Digital Single Market (“DSM Directive” – see IRIS 2019-4/5). As explained below, these meetings were aimed at discussing best practices for cooperation between online content-sharing service providers and rightsholders. Article 17 of the DSM Directive is entitled ‘Use of protected content by online content-sharing service providers’. This provision, in general terms,...
EU: European Commission
EU Internet Forum adopts “Crisis Protocol” to prevent viral spread of certain kind of content online
At its fifth annual meeting on 7 October 2019, the EU Internet Forum was devoted to the EU Crisis Protocol. The aim of the Protocol is to facilitate a rapid response mechanism to tackle the viral spread of terrorist and other violent extremist content online. The European Commission set up the Internet Forum in 2015 in response to the alarming increase in the use of the Internet by terrorists to spread extremist propaganda. Acknowledging the crucial role that the Internet can play in the fight against incitement to violence, the Internet Forum pledged to bring together representatives of the...
EU{EC} - European Union (all)
First annual self-assessment reports by signatories to Code of Practice on Disinformation
On 29 October 2019, the European Commission released the self-assessment reports submitted by Facebook, Google, Microsoft, Mozilla and Twitter and other trade association signatories to the Code of Practice on Disinformation (the Code) as part of its broader Action Plan against Disinformation (see IRIS 2019-1/7). The Commission is currently drafting an evaluation of the overall effectiveness of the Code during its first year of implementation which will take into account both the reports of independent bodies assisting the Commission in its analysis, as well as the relevant efforts of the signatories...
NATIONAL
Austria
Public service streaming portal Filmmit passes public value test
On 13 November 2019, the Austrian media regulator, KommAustria, approved an application from the public service broadcaster ORF to provide an on-demand service offering mainly fictional content (films and box sets). ORF currently operates the commercial online film library Filmmit through several subsidiaries. In order to make Filmmit into a public-service, ad-free, on-demand service, ORF asked KommAustria to carry out a so-called public value test in accordance with Article 6a of the ORF Act. In its application, ORF stated that the on-demand service would mainly provide content that had already...
Fashion TV: Bone of Contention in Russia
With two judgments delivered days apart in November 2019, the Moscow Arbitrazh Court (first instance for commercial disputes) sided with the former distributor of a Fashion TV channel in Russia in the dispute with the owner of the global brand and its local representative over the distribution rights of a worldwide television channel. This is a new chapter in the longstanding dispute, but the matter appears still far from being resolved. Austrian Fashion TV Programmgesellschaft mbH and Russian Fashion TV LLC, its former official distributor, have been in active conflict since the brandowner...
Belgium
New Belgian theatrical rating system
Just a few months before its 100th anniversary, the Belgian Law prohibiting minors under the age of 16 from accessing the cinema will be abolished. This law, which was adopted on 1 September 1920, had been the subject of criticism for quite some time. A long revision procedure was hampered by questions related to the division of competences between the federal State and the communities. This issue was solved in 2014, through the sixth state reform, which transferred the competence for film classification to the communities (the Flemish, French-speaking and German-speaking Communities,...
Germany
Package of measures to combat right-wing extremism and hate on the Internet
On 30 October 2019, the German Bundesregierung (Federal Government) adopted a package of measures to combat right-wing extremism and hate crime, designed in part to extend law enforcement authorities’ powers to deal with online platforms. This follows an attack in Halle in early October, when a heavily armed right-wing extremist, who had been radicalised on the Internet, tried to enter a synagogue and shot two people dead. The attack was one of several recent acts of violence and threats targeting politicians and journalists in particular. The new measures are designed to make it easier...
Ad blocker could contravene German cartel law
In a ruling of 8 October 2019, the German Bundesgerichtshof (Federal Supreme Court – BGH) overturned a decision by the Oberlandesgericht München (Munich Appeal Court – OLG) to declare a well-known ad blocker lawful. Although the judges of the highest German civil court confirmed the appeal court’s findings with regard to competition law, they thought a number of questions remained unanswered where cartel law was concerned. A legal dispute over the functioning of ‘AdBlock Plus’, which was sold by Eyeo GmbH, has been rumbling on for almost five years. The software,...
Federal Administrative Court rules on youth protection authorities’ discretionary powers
In a ruling of 30 October 2019, the German Bundesverwaltungsgericht (Federal Administrative Court) confirmed the rating of Bushido’s rap album ‘Sonny Black’ as harmful to minors. The Berlin rapper’s album glorified violence and contained highly discriminatory lyrics, according to the court. The decision examined the discretionary powers of the German Bundesprüfstelle für jugendgefährdende Medien (Federal Examination Office for Media Harmful to Minors – BPjM), the regulatory body responsible for classifying data media and telemedia with content harmful...
ZAK finds Channel21 guilty of infringing advertising and programming guidelines and Medicinal Product Advertising Act
At its meeting on 19 November 2019, the Kommission für Zulassung und Aufsicht (Commission on Licensing and Supervision – ZAK), the central organ of the German media authorities with responsibility for monitoring advertising on national television channels, decided that Sport1’s teleshopping window, Channel21, had infringed current advertising laws enshrined in Article 7(1)(3) and (4) of the Rundfunkstaatsvertrag (Inter-State Broadcasting Agreement – RStV) and Article 41(1)(4) in conjunction with Article 3 of the Heilmittelwerbegesetz (Medicinal Product Advertising Act –...
Extreme-right NPD wins dispute over Facebook page classified as ‘harmful to minors’
On 27 August 2019, the German Bundesverfassungsgericht (Federal Constitutional Court) decided that, before classifying a comment as ‘harmful to minors’ on the basis of the Jugendmedienschutz-Staatsvertrag (Inter-State Agreement on the Protection of Minors in the Media), the author’s fundamental right to freedom of expression must be taken into account. The second chamber of the first senate of the Bundesverfassungsgericht therefore upheld a constitutional complaint lodged by a regional association of the extreme right-wing NPD party. The case concerned the association’s...
Spain
CNMC fines Atresmedia and Mediaset for anti-competitive practices
Media groups Atresmedia and Mediaset, the largest commercial state broadcasters in Spain, were fined by the national regulator (Comision Nacional de los Mercados y la Competencia – CNMC), for a breach of the anti-trust rules governing TV advertising. The illegal conduct infringes Article 1 of Law 15/2007 and Article 101 of the Treaty on the Functioning of the EU. Mediaset has been fined EUR 38.9 million, while Atresmedia was fined EUR 38.2 million. They have been instructed to modify their commercial strategies within the next three months. Atresmedia and Mediaset have developed commercial...
Spanish Government may shut down websites without a court warrant
For public security reasons, the government has reserved the right to suspend, exceptionally and as a precautionary measure, the transmission of data and the connection to the Internet, as provided in the Royal Decree-Law 14/2019 of 31 October (hereinafter, the “Royal Decree-Law”). This Royal Decree-Law amends Law 9/2014 of 9 May on Telecommunications to acknowledge the government's right to take over any types of infrastructure, network, service or digital resource that may affect public security within the framework of national defence. It means that the Ministry of Economy...
Finland
The Council for Mass Media publishes dictum on the use of algorithms in journalism
On 30 October 2019, the Finnish self-regulatory body for the media sector, Council for Mass Media (CMM), agreed on a historical dictum regarding algorithmic journalism. The dictum concerns news automation and personalisation, that is, newsbots, voting aid applications, and targeted recommendations, among others. The utilisation of algorithms as such is seen as a dispensable means to produce (more) quality content in an increasingly efficient manner. However, the news rooms should know the logic behind the algorithms they use. The dictum also aims to ensure transparency and accountability in the...
France
CSA’s RT France warning confirmed
Having received an official warning from the French national audiovisual regulatory authority (Conseil supérieur de l’audiovisuel – CSA) in June 2018 after broadcasting a news report, RT France, the French-language outlet of the Russian international news channel RT, requested the retraction of the warning – which demanded that it respect its agreement with the CSA – on the grounds that the CSA had abused its powers. Article 2-3-6 of the channel’s agreement with the CSA (in the version applicable at the time) states: “The honesty requirement applies to...
All tablet computers to be taxed at same rate for private copying
Private copying constitutes a well-known exception to copyright under Article L 122-5-2 of the Intellectual Property Code (which regulates authors’ rights) and Article L 211-3-2 (which regulates neighbouring rights). Authors of works that are copied in a non-commercial and non-professional context are entitled to compensatory remuneration, which is paid at source and collected directly from manufacturers and importers of digital media and recording devices used for copying. These companies add the tax to the purchase price paid by consumers. The Private Copying Committee, created under Article...
United Kingdom
Channel 5: Ofcom’s change of control review
The Communications Act makes provision for Ofcom to carry out reviews when there is a change in ownership of any Channel 3 or Channel 5 licensee. There have been three previous reviews in relation to a change in control of Channel 5. Section 353 requires Channel 5 to give Ofcom notification of a “relevant change of control”, backed up by an obligation to provide Ofcom with such information as it requires to carry out a review of the change. The “relevant change of control” is not limited to the direct holding of shares in the licence holder but also includes any...
Directors UK introduces its Directing Nudity and Simulated Sex Guidelines
Directors UK, the professional association for screen directors, has launched its Directing Nudity and Simulated Sex Guidelines (the Guidelines), purportedly the first of their kind in the UK. However, arguably, they act as a complement to the terms contained in the agreement between the Producers Alliance for Cinema and Television (PACT) and the actor’s union, Equity, dated 1 August 2004 as revised on 13 October 2005 (The Agreement). The Guidelines provide shared professional expectations that apply to everyone involved in making sensitive content, with the aim of becoming standard working...
Greece
New Greek classification system of TV programmes
The Ministry of Digital Policy, Telecomunications and Information has issued a new classification system for TV programmes with its Decision No. 106/12.6.2019. This decision was the result of the National Council for Radio and Television's (NCRTV) relevant draft proposal, which was submitted to the Ministry, and a public consultation which ended on 30 April. The new system for the classification of TV programmes is based on their content as well as on the age of viewers. In particular, the classification of programmes depends on how likely they are to impair the moral, physical, psychological...
Ireland
Minister for Justice and Equality launches public consultation on hate speech
On 24 October 2019, the Minister for Justice and Equality, Charles Flanagan, launched a public consultation process on hate speech. The consultation forms a crucial part of the review of the relevant law in this area – namely, the Prohibition of Incitement to Hatred Act 1989 – and aims to ensure that Ireland’s legislation on hate speech is fit for purpose and is effective in meeting the real needs of communities and individuals who experience the impact of hate speech. The Prohibition of Incitement to Hatred Act 1989 prohibits certain forms of threatening, abusive or...
Broadcasting Authority publishes research report on political social media advertising
On 17 September 2019, the Broadcasting Authority of Ireland (BAI) published a research report on political social media advertisements. The ElectCheck 2019 research report was commissioned by the BAI and undertaken by the Institute for Future Media and Journalism (FuJo) at Dublin City University. The research examined the political advertising activity on Facebook, Twitter and Google during the European elections in May 2019, in the context of the platforms’ commitments in the self-regulatory Code of Practice on Disinformation to address the spread of online disinformation and fake news....
Italy
First Italian case on advertising of electronic cigarettes
On 5 November 2019, the Court of Rome, by adopting a restrictive interpretation of Italian legislation, ordered two companies to block the delivery of some commercial communications relating to electronic cigarettes (e-cigs) and liquid refills, as an urgent measure. Article 21, paragraph 10, of Legislative Decree No. 6/2016 (which implemented the EU Directive 2014/40/EU on tobacco products) provides for a ban on the advertising of e-cigs and refill liquids. Specifically, it prohibits the following activities which have the aim or the direct or indirect effect of promoting electronic cigarettes...
Rome Commercial Court enjoins Facebook to reactivate CasaPound Italia’s account
On 11 December 2019, Judge Stefania Garrisi issued an interim order on behalf of the Rome Commercial Court enjoining the social media company Facebook Ireland Ltd to reactivate the account of the extreme right-wing movement “CasaPound Italia” and that of its administrator, Davide Di Stefano. On 9 September 2019, Facebook had closed CasaPound Italia’s account, with some 240 000 followers, as well as the accounts of some of its members and sympathisers, due to an alleged infringement of Facebook’s policy prohibiting the incitement to hatred and violence. The next day,...
Netherlands
Journalist released from detention by Rotterdam Court over protection of sources
On 25 October 2019, the district court of Rotterdam ordered the release from detention of a journalist working for the Dutch public broadcaster NOS who had been detained for over 30 hours for the protection of journalistic sources in a criminal case. His detention was met with significant public debate and protest, with the editor-in-chief of NOS stating that, “the right to the protection of journalistic sources is crucial for the journalist’s role as the watchdog of a democratic society.” Hundreds of journalists had also protested outside the court. In 2014, a man was shot...
Ziggo not required to disclose customer data associated with IP address for potential copyright infringement
On 5 November 2019, the Court of Appeal of Arnhem-Leeuwarden upheld a lower court judgment, finding that an Internet service provider (ISP) was not required to provide customer data associated with certain IP addresses that were identified as being used for potential copyright infringement. The case involved Dutch Film Works (DFW), which is the largest independent film distributor in the Netherlands in the field of cinema, home entertainment, video-on-demand and television. It is also a co-distributor of the US film The Hitman's Bodyguard (the “film”), and is entitled...
Romania
National Radio Day established by Romanian Parliament
On 27 November 2019 Romania’s Chamber of Deputies (Camera Deputaţilor – the lower chamber of the Romanian Parliament) adopted the draft of a law establishing 1 November as “National Radio Day”. The draft Law was tabled by 55 Social Democrat and non-affiliated senators. The document was tacitly adopted by the Senate (the upper chamber of the Parliament) on 6 March 2019. The law contains the following provisions: Art. 1. – 1 November is established as National Radio Day. Art. 2. – The national and local administrative authorities may organise cultural/scientific...
Russian Federation
Law on Mass Media Foreign Agents adopted in Russia
On 21 November, 2019, at the third and final reading, the State Duma of the Russian Federation adopted the draft law providing the possibility of applying the status of mass media foreign agent to individuals. On 25 November, the law was signed by the President of the Russian Federation. The amendments suggest that the individuals can be recognised as "performing the functions of a foreign agent" on a par with legal entities if they create or distribute (including online) the information of the mass media foreign agent and at the same time receive money or material assets of foreign...
