IRIS newsletter 2020-4
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 • Marco Polo Sarl • Nathalie Sturlèse • Brigitte Auel • Erwin Rohwer • Sonja Schmidt • 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
Distribution: Nathalie Fundone, European Audiovisual Observatory
Tel.: +33 (0)3 90 21 60 06
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2020 European Audiovisual Observatory, Strasbourg (France)
From Boccaccio’s Decameron to Albert Camus’ The Plague and Thomas Mann’s Death in Venice (beautifully brought to the silver screen by Luchino Visconti) up to Steven Soderbergh’s Contagion or Terry Gilliam’s 12 Monkeys, literature, cinema and TV have always been fond of narratives in which an epidemic crisis afflicts the world. Unfortunately, we are now living a dystopian virus story for real. The global health crisis induced by the COVID-19 pandemic risks becoming an economic disaster with a dramatic impact on the audiovisual sector if nothing is done to prevent it.
Fortunately, both the public and the private sector in Europe are stepping in in order to provide support measures that aim at allowing the audiovisual industry to bridge the crisis. The European Audiovisual Observatory wants to make its own small contribution to this effort by providing a tool to monitor the audiovisual sector-specific measures taken in the context of the COVID-19 crisis. This tool is available here: https://www.obs.coe.int/en/web/observatoire/covid-19-audiovisual-sector-measures
The tool in question will be updated regularly on an ongoing basis until this crisis is resolved.
Over and above this concrete project, the Observatory will, through its usual channels, continue to provide you with timely information on the audiovisual sector during this crisis. In the case at hand, the present IRIS newsletter offers you, as usual, a long list of articles related to legal developments in the sector that will surely raise your interest.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
Studio Monitori and Others v. Georgia
In a case about access to information, the European Court of Human Rights (ECtHR) clarified that the right to freedom of expression and information, as guaranteed by Article 10 of the European Convention on Human Rights (ECHR), is only applicable when a set of conditions are fulfilled. The case of Studio Monitori and Others v. Georgia is one of the cases following the judgment of the Grand Chamber in Magyar Helsinki Bizottság v. Hungary (IRIS 2017-1/1) to test the limits of the right of access to public documents and the applicability of Article 10 ECHR (see also Bubon v. Russia, 7 February,...
CJEU: EUIPO must issue new ‘Fack Ju Göthe’ decision
In a judgment of 27 February 2020 (Case C-240/18), the Court of Justice of the European Union (CJEU) decided that the European Union Intellectual Property Office (EUIPO) should issue a new decision on the application for registration of the word sign ‘Fack Ju Göthe’ as an EU trademark, which it had originally rejected. The Court ruled that the classification of the word sign as contrary to accepted principles of morality and therefore unsuitable for registration had been erroneous because insufficient account had been taken of the fact that this comedy film title would not be perceived...
EU: European Commission
Communication on Shaping Europe’s digital future
On 19 February 2020, the European Commission published its important Communication on Shaping Europe’s digital future, which sets out the Commission’s focus for the next five years (2020-2025) on “Creating a Europe fit for the digital age”, including a specific action plan for the media and audiovisual sector. The Communication begins with the Commission noting that it would focus on three key objectives to ensure that digital solutions help Europe towards a digital transformation, namely: (a) technology that works for people, (b) a fair and competitive economy, and...
[AT] Ibiza scandal: recording was unlawful but its publication was justified
On 23 January 2020, the Österreichische Oberste Gerichtshof (Austrian Supreme Court) decided in a preliminary procedure that, although the secret filming of the so-called ‘Ibiza video’ had been unlawful, the act of sharing and publishing it had been justified (cCase no. 6 Ob 236/19b). In July 2017, two Austrian politicians from the Freiheitliche Partei Österreichs (Austrian Freedom Party – FPÖ), Heinz-Christian Strache and Johann Gudenus, were secretly filmed at a meeting in Ibiza. An actress pretending to be the niece of a Russian oligarch, and her companion...
[DE] Supreme Court decides on appropriate remuneration for ‘Das Boot’ chief cameraman
In a decision of 20 February 2020, the Bundesgerichtshof (Federal Supreme Court – BGH) determined how much revenue from television broadcasts should be paid to the chief cameraman of the film ‘Das Boot’ (Case no. I ZR 176/18). The plaintiff in the case at hand had worked as chief cameraman on the film ‘Das Boot’ in the early 1980s, for which he had been paid a fee equivalent to EUR 104 303.54 by the production company. The film was exploited internationally in cinemas and on television, as well as on video and DVD. The plaintiff claimed additional remuneration of...
[DE] Bundesländer agree new gambling regulations in Germany
In January 2020, after lengthy negotiations, the German Bundesländer reached an agreement on a new system of regulation for gambling in Germany, reflected in a draft Staatsvertrag zur Neuregulierung des Glücksspielwesens in Deutschland (Inter-State Agreement on a New System of Regulation for Gambling in Germany – Glücksspielneuregulierungsstaatsvertrag, GlüNeuRStV). The reforms particularly address the admissibility of various types of Internet-based gambling and the related fields of advertising, the protection of minors and the protection of gamblers. Under current...
[DE] German Federal Justice Ministry plans clear rules for influencers
On 13 February 2020, the German Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection) published a draft law designed to create a legal framework for free recommendations by influencers and bloggers. The ministry intends to make it clear that comments on products made by influencers on social media free of charge and primarily for information and opinion-forming purposes do not need to be labelled as advertising. The proposed regulations were drafted following several court decisions in recent years in which the commercial nature of...
[DE] Key points of amended German Film Support Act published
The culture and media working groups of the German Parliament’s CDU/CSU and SPD coalition partners have published the key points of their joint proposal to amend the German Filmförderungsgesetz (Film Support Act – FFG). The reforms are primarily designed to protect the long-term future of the German film industry and strengthen German filmmaking as an economic and cultural asset. The cinema sector is at the heart of the envisaged changes. The reforms will be based on changes to eligibility criteria, the distribution of support, funding mechanisms and the structure of the Filmförderanstalt...
[DE] Legislative proposal to introduce compulsory ID checks on social networks and gaming platforms
On 7 February 2020, the German Bundesländer of Lower Saxony and Mecklenburg-Vorpommern jointly submitted an “Entwurf eines Gesetzes zur Änderung des Netzwerkdurchsetzungsgesetzes zum Zweck der Erleichterung der Identifizierbarkeit im Internet für eine effektivere Bekämpfung und Verfolgung von Hasskriminalität“ (Draft act amending the Network Enforcement Act in order to facilitate identification on the Internet to combat and prosecute hate crime more effectively) to the German Bundesrat (upper house of parliament). Their main objective is to make it easier to...
[ES] Constitutional Court overturns Supreme Court´s ruling due to violation of freedom of expression
In 2017, the Supreme Court convicted an artist of the crime of glorifying terrorism and humiliating its victims because of several comments he posted on the social network Twitter between November 2013 and January 2014. Specifically, it found that the messages posted were humiliating and that they fed hate speech by legitimising terrorism. Now, the Plenary of the Constitutional Court has upheld the appeal for protection filed by the convicted person and has annulled the sentence of the Criminal Chamber of the Supreme Court. In its ruling, the Constitutional Court considered that the appellant´s...
[ES] Modifications for the promotion of cinematographic activity and for the improvement of technical aspects
The Institute of Cinematography and Audiovisual Arts (ICAA), which is attached to the Ministry of Culture and Sports, is in the process of modifying Royal Decree 1084/2015 of December 4, which developed Law 55/2007, of December 28, on the cinema. The modifications fall into two categories: on the one hand, those that affect the promotion of cinematographic and audiovisual activity and, on the other, those of a procedural nature aimed at improving the technical aspects of the decree. The former consist in making the approval regime for international co-productions more flexible, with the provision...
[ES] Supreme Court confirms that Catalan public service broadcaster violated principles of neutrality and pluralism during elections
On 6 March 2020, the Third Chamber of the Spanish Supreme Court (Tribunal Supremo) dismissed the appeal of the Corporació Catalana de Mitjans Audiovisuals, CCMA (a regional public service broadcaster), against resolutions of the Central Electoral Board (Junta Electoral Central - JEC) issued in December 2017. In these decisions, which were taken in the context of the elections to the Parliament of Catalonia called for on 21 December of that year, the JEC had ruled that TV3 and Catalunya Radio, both part of the CCMA, had violated the principles of news neutrality and political pluralism on...
[FR] CSA sends platforms a questionnaire to combat manipulation of information
The main innovation of the law against the manipulation of information of 22 December 2018 was to extend the powers of the French national audiovisual regulatory authority (Conseil supérieur de l’audiovisuel – CSA) to include services that do not necessarily fall under audiovisual laws, especially large social networks. For example, the law requires the main online platform operators to take measures to fight against the dissemination of false information “likely to disrupt public order or affect the integrity of a vote.” The CSA is responsible for monitoring...
[FR] Honesty of information: no CSA sanction for RT France
On 29 and 30 March 2019, the TV channel RT France, the French-language outlet of the Russian international news channel RT, broadcast information suggesting that, according to official Russian sources, France and Belgium were planning to simulate a chemical attack in Syria with the help of ‘terrorist leaders’. Three days later, in an item entitled ‘Attaque ou intox?’ ('Attack or disinformation?'), a studio-based journalist repeated these accusations, giving more detail and criticising the response of the French authorities, before giving the floor to an analyst who...
[GB] ICO publishes its Age Appropriate Design Code of Practice
On 21 January 2020, the Information Commissioner’s Office (ICO), the United Kingdom's independent body established to uphold information rights, published its Code of Practice which should be followed by online services to protect children’s privacy. The Age Appropriate Design Code of Practice, the first of its kind, is a statutory code required under Section 123 of the Data Protection Act 2018. It seeks to address the increasing concern about the position of children in the modern digital world and to create a safe online space for them in which they can explore, learn and...
[GB] Ofcom imposes GBP 75 000 fine against Talksport Ltd for breaches of impartiality rules
Talk Radio, whose licence is held by Talksport Ltd (the Licensee) has been fined GBP 75 000 by Ofcom and directed to broadcast a statement of the regulator’s findings, on dates and in words to be determined by Ofcom. The fine arises from three episodes of the George Galloway programme which breached Ofcom’s Broadcasting Code rules 5.11 and 5.12 by failing to maintain due impartiality on matters of major political or industrial controversy and major matters relating to public policy. The breaches occurred on 16 March, 27 July and 6 August 2018. Talk Radio is a national digital speech...
[IT] Agcom sanctions RAI for violating the public service broadcasting contract
On 14 February 2020, the Italian Communications Authority (Agcom) came to a decision regarding a proceeding initiated against Rai for its alleged failure to fulfill the general radio and television public service obligations and the National Service Contract - 2018-2022. This proceeding was initiated on 23 July 2019, pursuant to Article 48, paragraph 2 of the Consolidated Act on Audiovisual Media Services, recognising in the public service broadcaster's programming potential violations of the "principles of balance, pluralism, completeness, objectivity, impartiality, independence and...
[IT] Agcom: Violation of Regulation on respect for human dignity and the principle of non-discrimination and countering hate speech
On 27 February 2020, the Council of the Italian Authority for Communications found the violation of the Regulation on respect for human dignity and the principle of non-discrimination and countering hate speech - Resolution No. 157/19/CONS (see IRIS 2019-4:1/25 and 2017-1:1/24) - by a national television programme, Fuori del coro, broadcast by Rete 4 of the Mediaset group. This is one of the first cases of a violation of the aforementioned Regulation adopted in 2019 which contains provisions aimed at countering the use of hate speech in audiovisual media services and establishes the principles...
[IT] First instance court annuls the decision by which the Italian competition authority imposed measures to remove the anti-competitive effects of Sky’s acquisition of R2 from Mediaset
On 5 March 2020, the Regional Administrative Tribunal of Lazio (TAR Lazio) annulled a decision by which, on 20 May 2019, the Italian Competition Authority (ICA) imposed measures on Sky Italian Holding SpA (Sky) to remove the anti-competitive effects created by its partially abandoned acquisition of the technical platform R2 Srl (R2) from Mediaset Premium S.p.A (MP) (Transaction). R2 provides technical platform services enabling broadcasters to retail a pay-TV offer on DTT. Sky filed the Transaction with the ICA on 28 November 2018, and the ICA opened a Phase II investigation in March 2019. The...
[MT] Applying a Procedural Rule to Violate Freedom of Expression
Digi B Network Ltd. is the sole digital radio platform operating in Malta. It applied to the Broadcasting Authority by means of two separate broadcasting licence applications, in June 2018 and in August 2018, to be permitted to carry two additional digital radio stations on its platform. Although this should have been a very straightforward procedure, the broadcasting regulator never got back to the platform operator with any decision, either within or beyond the statutory four-month period allowed by law; in the meantime, the platform operator was left unaware of the outcome of its applications....
[NL] Appeal Court refuses to order removal of article from online media archive
On 3 March 2020, the Gerechtshof Amsterdam (Amsterdam Court of Appeal) delivered a notable judgment on online news media archives, and whether media should be required to remove certain old articles which continue to appear in Google Search results from their online archives. The case centred on an article published in 1999 by the Dutch media outlet de Volkskrant, which reported on the claimant’s involvement with a “pyramid-scheme” company that had gone bankrupt. In 2011, the claimant sent a request to the media outlet to remove the article from its online archive, which is...
[NL] Judgment on request for removal and rectification of investigative TV programme
On 30 January 2020, the Rechtbank Midden-Nederland (Midden-Nederland District Court) delivered an important judgment, refusing to order the removal or rectification of an investigative TV programme broadcast by a Dutch public broadcaster. The litigation received a great deal of coverage in Dutch media, and the judgment set out the principles the Court will apply when determining whether there is a sufficient factual basis for investigative reporting. The case arose on 26 November 2019, when the Dutch public broadcaster AVROTROS broadcast an episode of its long-running Opgelicht investigative...
[RO] Recommendations about the Covid-19 media coverage
On 25 February 2020, the National Audiovisual Council (Consiliul Naţional al Audiovizualului, CNA), the audiovisual regulator of Romania, issued a press release regarding the obligation for broadcasters to treat any new topic regarding the coronavirus (Covid-19) epidemic responsibly. Further to this press release, on 27 February 2020, the Council issued two recommedations for audiovisual broadcasters, both public and commercial, to air the audio and TV advertising spots launched by the Romanian Government as part of the information campaign on the prevention of infection with the new type of coronavirus...