IRIS newsletter 2020-6
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)
In a 1974 interview, philosopher Hannah Arendt stated the following: “If everybody always lies to you, the consequence is not that you believe the lies, but rather that nobody believes anything any longer [...] And a people that no longer can believe anything [...] is deprived not only of its capacity to act but also of its capacity to think and to judge.”
In the profound crisis we are going through now, these words ring truer (and scarier) than ever. It is already difficult enough for the layman to think about and judge complex medical information, with many citizens feeling overwhelmed by a plethora of divergent opinions about the nature, origins, effects and evolution of this pandemic. However, what can make it truly impossible for citizens and governments alike to handle this crisis is when disinformation is maliciously spread in order to stir informational chaos in our societies, with the result that nobody believes anything any longer. That is when public bodies do have to make a stand.
However, not all means are justified by the objective of countering disinformation, as explained by the Council of Europe’s Commissioner for Human Rights Dunja Mijatović in a recent statement. According to the Commissioner, introducing disproportionate restrictions on press freedom is a “counterproductive approach that must stop.” The Commissioner emphasised that measures to combat disinformation “must never prevent journalists and media actors from carrying out their work or lead to content being unduly blocked on the Internet.”
But enough about the virus. The fact that our newsletter covers many other important legal developments that are unrelated to the COVID-19 crisis is perhaps a sign that life goes on after all. Some examples of these developments include the recent ECHR judgment in the ATV Zrt v. Hungary case; the European Commission’s greenlighting of the new German State Media Treaty; the CJEU Advocate General’s opinion on information claims against YouTube; and the German Federal Court of Justice judgment on the illegality of phonogram samples.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
CoE: Commissioner for Human Rights
Media freedom and measures to counter disinformation about COVID-19
On 3 April 2020, the Council of Europe’s Commissioner for Human Rights, Dunja Mijatović, issued an important Statement concerning measures aimed at countering disinformation about the COVID-19 pandemic (for previous Statements, see IRIS 2017-7/3). The Commissioner began by noting that some Council of Europe member states had used countering disinformation about COVID-19 as a “pretext to introduce disproportionate restrictions to press freedom,” which is a “counterproductive approach that must stop.” The Commissioner pointed to how these new measures “clearly...
EU Commission gives green light to German State Media Treaty
At the end of the notification procedure, the EU Commission has given the green light for the reform of media regulations in Germany. Despite raising a number of concerns, it said there were no procedural barriers to the adoption of the new Medienstaatsvertrag (State Media Treaty). However, it suggested some ways in which the draft treaty could be more closely aligned with common EU legislation. The reform process is designed to adapt the state regulatory framework to the digitalised media world, especially with regard to online platforms and streaming services, and to replace Germany’s...
ERGA report on disinformation: assessment of the implementation of the European Code of Practice
As part of the European Commission’s efforts to combat online disinformation, the European Regulators Group for Audiovisual Media Services (ERGA) was asked to assess the implementation of the European Code of Practice on Disinformation (‘the code’). On 5 December 2018, the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy presented an Action Plan against Disinformation, which stated that “The Commission will, with the help of the European Regulators Group for Audiovisual Media Services (ERGA), monitor the implementation...
EU: Court of Justice of the European Union
CJEU Advocate General on information claims against YouTube
In his opinion of 2 April 2020 (Case C‑264/19), CJEU Advocate General Henrik Saugmandsgaard Øe suggested that the right to information about users who infringe copyright on video-sharing platforms does not cover the email address, the telephone number, the IP address used to upload the files or the IP address used when the user’s account was last accessed. He was referring to the concept of ‘names and addresses’ set out in Directive 2004/48/EC on the enforcement of intellectual property rights. A request for a preliminary ruling had been submitted by a German court in...
[AM] Restrictions on access to COVID-19 information adopted, then amended
The Armenian Government's Decree “On declaring a state of emergency in the Republic of Armenia” was adopted on 16 March 2020. It provided, in particular, new rules in relation to information on the COVID-19 infection. The public dissemination of information that leads to or is capable of causing panic would only be made possible by making reference to the official source, namely the Commandant’s Office, headed by the deputy prime minister. The Office was established the same day. Article 182-3, paragraph 8 (Violations of the rules of an emergency situation) of...
[DE] Metall auf Metall – Federal Court of Justice rules on illegality of phonogram samples
In a judgment of 30 April 2020, the Bundesgerichtshof (Federal Court of Justice – BGH), Germany’s highest civil court, in a longstanding dispute between music producer Moses Pelham and members of the group Kraftwerk, decided in what circumstances a phonogram producer’s rights are infringed. The BGH explained that the use of a short sequence from a song can violate a producer’s right of reproduction in accordance with the principles laid down by the CJEU (Case no. C-476/17). However, the judges referred the matter back to the Oberlandesgericht (higher regional court) for...
[DE] Berlin Regional Court bans surreptitious advertising on BuzzFeed
Under German law, online product recommendations must be clearly labelled as advertising if news portals receive commission from the sale of the related products. The Landgericht Berlin (Berlin Regional Court) stated this in its ruling of 11 February 2020 in Case no. 52 O 194/18 after Germany’s Verbraucherzentrale Bundesverband (Federation of Consumer Organisations – vzbv) launched proceedings against the media company BuzzFeed. On its news portal’s home page, the company had listed several articles, including one entitled “18 geniale Dinge, die du dir 2018 mit deinem...
[DE] Federal Cartels Office closes proceedings against Sky and DAZN
On 15 April 2020, the German Bundeskartellamt (Federal Cartels Office) closed its proceedings against the London-based DAZN Group Ltd. and Sky Ltd., who had been suspected of signing anti-competitive agreements for the purchase of football broadcasting rights. Pay-TV broadcaster Sky had bought the full broadcasting rights for the UEFA Champions League for the 2018/19 to 2020/21 seasons before selling some of the matches to the DAZN streaming service under a sublicensing contract. The deal meant that no Champions League matches were broadcast live on free TV. According to the cartels authority,...
Competition authority rejects Molotov platform’s complaint about TF1 and M6
Molotov, a television channel and service distribution platform, streams French audiovisual programmes over the top (OTT) under a ‘freemium’ model that enables users to access some channels free of charge and pay to subscribe to additional channels and services. It complained to the French competition authority about certain practices used by the TF1 and M6 groups in the television distribution and marketing sector which it considered incompatible with national and EU competition rules. According to Molotov, TF1 and M6 suddenly and abusively broke the experimental agreements they...
[FR] COVID-19: Emmanuel Macron’s plan for culture
On 6 May, Emmanuel Macron announced a ‘plan for culture’, with measures designed to complement those adopted at the start of the health crisis. Eight days earlier, personalities from the world of art and culture, who said they felt ‘forgotten’ even though they had been severely affected by the lockdown, had written an open letter to the French President in a national newspaper. The President of the Republic began by granting the key demand put forward by the letter’s signatories, namely that the unemployment benefits paid to so-called ‘intermittents du spectacle’...
[FR] Fight against piracy: bill establishing plea agreement tabled
The French Parliament’s examination of the audiovisual reform bill was due to begin at the end of March. On 28 April, following the indefinite postponement of this process on account of the health crisis, opposition MPs tabled a draft law “designed to strengthen instruments to combat piracy of copyrighted works and establish a plea agreement measure.” Under the plea agreement system, a fine would be paid in order to avoid court proceedings for certain offences. It is worth recalling that the government’s audiovisual reform bill makes provision, in particular, for the...
[GB] ITV’s Good Morning programme given guidance by Ofcom after comments about Coronavirus and 5G technology
Ofcom determined that it was not necessary to investigate further complaints against ITV’s Good Morning programme pursuant to Rule 2.1, about remarks made by one of its presenters, Eamonn Holmes, concerning the causal link between the onset of coronavirus and 5G connectivity. However, Ofcom did issue guidance to ITV and its presenters on how they should rightfully challenge public authorities during the current serious health crisis. Good Morning is a daily magazine programme covering topical issues produced by ITV Broadcasting Limited (ITV). On 13 April 2020, the programme’s...
[GB] London Live sanctioned by Ofcom for broadcasting “potentially harmful” interview on coronavirus
On 20 April 2020, the UK communications regulator Ofcom ruled that ESTV Ltd had breached its Broadcasting Code by airing an interview on the Coronavirus pandemic which risked causing “significant harm to viewers.” ESTV Ltd, the licensee, is the owner of the local TV channel London Live, which serves the London area. On 8 April 2020, London Live broadcast an 80-minute interview with the former footballer and sports broadcaster David Icke, who was introduced by the presenter Brian Rose at the start of the programme as “a writer and public speaker known since the 1990s as a professional...
[GB] News programme and live sermon include potential harmful claims about COVID-19
On 18 May, Ofcom imposed a sanction on Loveworld Limited, which broadcasts a religious television channel called Loveworld, because a news programme and live sermon included potentially harmful claims about COVID-19. Specifically, an item on the news programme included "unsubstantiated claims" that 5G was the cause of the pandemic; another suggested that hydroxychloroquine was a "cure" for the virus, with no mention made of the fact that this claim was clinically unproven or that the drug has potentially serious side effects. In addition, a sermon was broadcast...
[IE] Report on tackling disinformation across digital platforms published
On 28 April 2020, a new research report on tackling disinformation across digital platforms was published. The report, CodeCheck 2020: A Review of Platform Compliance with the EC Code of Practice on Disinformation, was commissioned by the Broadcasting Authority of Ireland (BAI) and undertaken by the Institute for Future Media and Journalism (FuJo) at Dublin City University, Ireland. The CodeCheck 2020 report examines and reviews the progress of the actions carried out by digital platforms Facebook, Twitter, Google and Microsoft in Ireland over a 12-month period to November 2019 in support of their...
[IT] AGCOM orders six-month suspension for two broadcasters delivering programmes dangerous to customers' health
By way of two separate but related resolutions issued on 7 April 2020 (namely Resolutions Nos. 152/20/CONS and 153/20/CONS) in the so-called ‘Panzironi saga’, the Italian Communications Authority (AGCOM) ascertained the violation of Articles 3 and 36-bis, paragraph 1, lit. c), No. 3 of the AVMS Code (Legislative Decree No. 177/2005) by two small-sized television broadcasters (namely Italian Broadcasting Srl and Mediacom Srl, respectively the Life TV Network and Life 120 Channel services) and, accordingly, ordered their suspension. Such provisions respectively prohibit the delivery...
[IT] Telegram channels removed after urgent application filed by FIEG before AGCOM
On 6 April 2020, the Italian Federation of Newspaper Publishers (FIEG) filed an urgent application with the Italian Communications Authority (AGCOM) requesting the removal of all digital editions of newspapers published on a few channels of the instant messaging platform Telegram, as well as the suspension of access to the entire platform. This application was filed under the regulation for the online enforcement of copyright (adopted by Resolution No. 680/13/CONS, as subsequently amended). After the investigation started, Telegram partially complied on its own initiative. As a result, AGCOM...
[NL] Minister establishes funding scheme for local public broadcasters during COVID-19
On 7 April 2020, Dutch Minister of Education, Culture and Science Arie Slob allocated EUR 11 million to help local public broadcasters and local newspapers left in need because of the COVID-19 crisis. To prevent people from being deprived of information, local broadcasters and newspapers will receive between EUR 4 000 and EUR 10 000 from a temporary support fund. The amount received will depend on their circulation and outreach. Local media is often dependent on advertising revenues, which, due to the COVID-19 pandemic, have been significantly reduced. For local media, this is difficult to...
[NL] Netflix and the Netherlands Film Fund establish EUR 1 million relief fund during COVID crisis
On 17 April 2020, the Netherlands Film Fund (Nederlands Filmfonds), which is the national agency responsible for supporting film production and film-related activities in the Netherlands, and Netflix, which is the world’s largest Internet streaming service, established a EUR 1 million relief fund for Dutch film and television production to help employees who have been acutely affected by the COVID-19 pandemic. The production of films and series in the Netherlands has been heavily affected by the COVID-19 pandemic. Productions are at a standstill and the film and TV industry are under great...
[RO] More money from gambling for the National Film Fund
On 27 April 2020, the President of Romania, Klaus Iohannis, promulgated a law by which 4% of the amounts collected for the state budget from economic operators carrying out activities in the field of gambling are directed annually to the Film Fund. Law No. 50 of 2020 was published in the Official Gazette of Romania No. 340 of 27 April 2020 (see, inter alia, IRIS 2014-2/32, IRIS 2014-7/32, IRIS 2016-2/23, IRIS 2016-10/23, IRIS 2017-2/27, IRIS 2018-2/29, IRIS 2018-10/23, IRIS 2019-2/22 and IRIS 2020-3/2). The act modifies Article 13, paragraph (1), lit. e1) of Government...
[RU] Parliament and Supreme Court on false news in the context of COVID-19
On 31 March 2020, both the lower and upper houses of the Russian Parliament adopted amendments to the Criminal Code of the Russian Federation; these amendments were immediately promulgated by the president and entered into force on 1 April. They introduce two new articles generally associated with the COVID-19 pandemic: Article 207.1 “Public dissemination of knowingly false information about circumstances that pose a threat to the life and safety of citizens” and Article 207.2 “Public dissemination of knowingly false socially significant information, entailing grave consequences.”...