IRIS newsletter 2020-7
European Audiovisual Observatory
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Tel. : +33 (0) 3 90 21 60 00
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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)
As the saying goes, there is a first time for everything. And one could add, exceptional times call for exceptional measures. COVID-19 forbidding, this year the Cannes Film Festival did not roll out the red carpet for its distinguished guests. Even if this is not a première (remember 1968!), it is certainly the first time that the parallel-running Cannes Film Market has taken place online. This unique circumstance made it impossible for the European Audiovisual Observatory to organise its customary Cannes conference in situ. The obvious solution to this problem was to organise an online event on the Cannes Film Market platform instead. And we did just that.
With a twist.
For the first time in its history, during the online Cannes Film Market the Observatory proudly presented a documentary film on the effects of COVID-19 on the film, TV, and VOD industries in Europe. It was made possible thanks to the insights shared by members of the Observatory’s Advisory Committee and includes interviews with major industry players from all sectors. You can watch the film and the ensuing live expert chat session here.
And there is more. Two months have passed since we announced the publication of our tracking tool to follow the measures taken to support and guide the audiovisual sector in the context of the COVID-19 crisis. This Tracker is a useful tool for anybody wanting to find concrete measures taken at the national or international level. It does not, however, provide an overview or an analysis of all the measures applied in Europe. This is a gap that we aim to fill with an IRIS Plus, which organises the information contained in the Tracker in a comparative manner, helping the reader to understand the diversity of approaches, interests, and measures taken, but also the diversity of the bodies taking them. Moreover, this IRIS Plus makes some preliminary observations on the crisis and advances some hypotheses regarding its consequences.
And if all that is not enough, the present newsletter provides an interesting read, as per usual.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
ECtHR: Khadija Ismayilova (no. 3) v. Azerbaijan
After finding various violations of the European Convention on Human Rights (ECHR) in the case of Khadija Ismayilova (no. 1) v. Azerbaijan (see Iris 2019-3/1) and in Khadija Ismayilova (no. 2) v. Azerbaijan, the European Court of Human Rights (ECtHR) has found a new violation of the ECHR by the Azerbaijani authorities, of which Khadija Ismayilova, a well-known investigative journalist, was the victim. The ECtHR is of the opinion that the domestic courts have not sufficiently protect Ismayilova against a smear campaign by a newspaper which exploited a breach of her private life using offensive and...
CoE - Council of Europe (all)
Council of Europe issues toolkit for member states during COVID-19 crisis
On 8 April 2020, the Secretary General of the Council of Europe (COE) issued an important Information Document (toolkit) for member states entitled “Respecting democracy, rule of law and human rights in the framework of the COVID-19 sanitary crisis.” The purpose of the Information Document is to provide member states with a toolkit for dealing with the COVID-19 crisis in a way that respects the fundamental values of democracy, rule of law and human rights. Notably, the document contains important guidance relating to freedom of expression, media freedom, and public broadcasting. It...
ECtHR: Rodina v. Latvia
A lack of respect for the right to privacy, combined with an apparent negligence of the tenets of responsible journalism, can be pertinent reasons to justify an interference with journalistic reporting, as protected by Article 10 of the European Convention on Human Rights (ECHR). In the case of Rodina v. Latvia, the European Court of Human Rights (ECtHR) found a violation of Article 8 (right to privacy) ECHR because the Latvian courts had not sufficiently protected a doctor’s family life and her good name and reputation after she had been exposed by a newspaper and a TV station as being part...
EU: European Commission
Public consultation on Digital Services Act package
On 2 June 2020, the European Commission launched a public consultation on proposals for a Digital Services Act (DSA) package, which will be designed to modernise the current EU legal framework for digital services. This follows the Commission’s Communication in February 2020 on “Shaping Europe’s digital future”, where it was announced that there would be new and revised rules to deepen the internal market for digital services (see IRIS 2020-4/14). The Commission notes that the legal framework for digital services has “remained unchanged” since the adoption...
[AT] Cease and desist order against hosting provider
On 30 March 2020, Austria’s Oberster Gerichtshof (Supreme Court – OGH) decided in preliminary proceedings that cease and desist orders against hosting providers could apply to content with identical words or meaning, but only within Austria (Case no. 4Ob36/20b). A politician from the Freiheitliche Partei Österreichs (Freedom Party of Austria – FPÖ) had published on his Facebook page an edited photo of a well-known ORF newsreader, the rights to which were owned by the ORF. The following text had been added to the image in clearly visible lettering: “There’s...
[BE] CSA report on the pandemic’s impact on the audiovisual sector in French-speaking Belgium
As elsewhere in Europe, traditional media in French-speaking Belgium saw a sharp rise in audience figures during the health crisis linked to the COVID-19 pandemic. But what other consequences has the crisis had for the audiovisual sector? On 8 May 2020, the Conseil supérieur de l’audiovisuel (the audiovisual regulatory authority for the French-speaking Community of Belgium – CSA) published a report on this subject. The report lists the main challenges and difficulties facing audiovisual media in French-speaking Belgium at the height of the lockdown period. It also describes the...
[CH] Short- and long-term assistance for journalism
The Swiss Government (Bundesrat) has launched a package of short- and long-term measures to support the media industry. On 20 May 2020, it decided to provide a total of CHF 57.5 million in immediate emergency aid for various types of media. The Bundesrat was acting under the authority of the Swiss Parliament, which is concerned about the future of the media and the formation of public opinion (for example, with motions entitled “Independent and effective media are the backbone of our democracy”). The coronavirus pandemic has aggravated the longstanding problems faced by printed and...
[DE] Coronavirus crisis: German Bundesländer launch initiatives to support local broadcasters
Several German Bundesländer have launched programmes to support local and regional broadcasters during the coronavirus crisis, including subsidies for their technical infrastructure costs. In North Rhine-Westphalia, the state government, local radio representatives, infrastructure providers and the Landesanstalt für Medien NRW (North-Rhine Westphalia media authority) agreed the ‘Solidarpakt Lokalfunk’ (local radio solidarity pact) to cover the distribution costs for local radio stations for a three-month period. This is funded mainly by the state government and the Landesanstalt...
[DE] Federal Constitutional Court upholds journalists’ complaint: foreign surveillance by Federal Intelligence Service infringes fundamental rights
In a judgment of 19 May 2020 (1 BvR 2835/17), the German Bundesverfassungsgericht (Federal Constitutional Court – BVerfG) decided that, in its current form, the surveillance of foreigners’ telecommunications abroad by the Bundesnachrichtendienst (Federal Intelligence Service – BND) violated the privacy of telecommunications (Article 10(1) of the Grundgesetz (Basic Law – GG)) and the freedom of the press (Article 5(1)(2) GG). It also ruled that the processing and transmission of the data obtained through this practice and cooperation with foreign intelligence services were...
[DE] New age verification system approved for protection of minors
On 19 May 2020, Germany’s Kommission für Jugendmedienschutz (Committee for the protection of minors in the media – KJM) announced that it had approved another age verification system (AVS module). The ‘Robo-Ident’ module developed by Nect GmbH is a so-called partial solution for the age verification of closed user groups. It identifies people using an automated biometric data comparison process. Such partial age verification solutions can be built into the general youth protection concepts used by different content providers. In practical terms, the system enables...
[ES] COVID-19 Guidelines for safety in film productions issued by ICAA
On 14 May 2020, the Institute of Cinematography of Audiovisual Arts (ICAA) issued its Guidelines of good practices on special measures for the prevention of risks at work in the audiovisual sector, a series of preventive measures against the coronavirus approved by the Spanish Government and applicable when shooting in Spain in the initial phase of the process of deconfinement. With the publication of the aforementioned guidelines, the ICAA has provided the Spanish film industry with some basic, non-binding guidelines and recommendations on the prevention and protection measures to be followed...
[ES] Pre-financing obligation regulated by the Spanish Audiovisual Law boosts the production of TV series
The Spanish regulator (Comisión Nacional de los Mercados y la Competencia, CNMC) has published a report about compliance with the obligations to pre-finance European audiovisual productions during 2018, which, in line with the Audiovisual Media Services Directive, are mandated by Spanish Audiovisual Law 7/2010 (Ley General de la Comunicación Audiovisual, Article 5.3). The obligations are stipulated differently depending on the type of operator: public service broadcasters must invest 6% of their profits from the previous year, whilst commercial players contribute 5%. Moreover,...
[FR] Annulment of CNIL’s demand that Google apply de-referencing to all its geographical extensions
After the Conseil d'Etat (Council of State) issued a series of judgments on 6 December clarifying the implementation of the right to de-referencing (right to be forgotten), in particular where ‘sensitive data’ is concerned, France’s highest administrative court issued a decision on the geographical scope of this right. In the case at hand, Google Inc. had applied for the annulment of the decision of the French data protection authority (Commission nationale de l’informatique et des libertés – CNIL) of 10 March 2016 to fine it EUR 100 000 for refusing,...
[FR] Constitutional Council rules that Hadopi’s access to all documents, to combat piracy is unlawful
On 13 February 2020, the Conseil d'État (Council of State) submitted to the Conseil constitutionnel (Constitutional Council) an application for a priority preliminary ruling concerning the constitutionality of the final three paragraphs of Article L. 331-21 of the Intellectual Property Code. This provision forms the legal basis for the Hadopi’s implementation of the graduated response procedure established under Act No. 2009-669 of 12 June 2009. According to Article L. 336-3 of the Intellectual Property Code, the owner of a connection to online public communication services...
[FR] Council for Ethical Journalism issues its first opinions and condemns BFM TV
The new (and controversial) Conseil de déontologie journalistique et de médiation (Council for Ethical Journalism and Mediation – CDJM), created at the end of 2019, has published its first three opinions, which were adopted at a plenary meeting on 18 May 2020. The CDJM is a body for mediation between journalists, the media, news agencies and the public on all matters linked to ethical journalism. Any citizen can ask the CDJM for its opinion on journalistic activity that is considered problematic. The CDJM’s members come from three groups, each one equally represented...
[GB] Christian TV Network sanctioned by Ofcom for broadcasting “potentially harmful statements” about Coronavirus
On 18 May 2020, the UK communications regulator Ofcom ruled that Loveworld Limited, which broadcasts the religious television service Loveworld, breached its Broadcasting Code after a news programme and a live sermon featured potentially harmful claims about the causes of and treatments for COVID-19. The Ofcom investigation found that a report on Loveworld News, a programme featuring news from studios around the world, included a number of uncorroborated claims that the source of the risk to health was the effect of 5G Wi-Fi networks rather than the viral transmission of COVID-19. The report...
[GB] Ofcom fines broadcaster for infringing broadcasting rules
On 5 May 2020, Ofcom, the UK broadcasting regulator, announced its decision to fine a broadcast licensee, Club TV Limited, in respect of a programme published by its Peace TV Urdu service. The offending programme was broadcast on 22 November 2017. It was an episode of the series Kitaab-ut-Tawheed about the Islamic punishment of magicians. Ofcom's breach decision was published on 22 July 2019. It found that the licensee had failed to provide adequate protection to members of the public from the inclusion of offensive and harmful material and had thus breached Rules 3.1, 3.2, 3.3 and 2.3 of...
[HU] Implementation of the AVMSD’s rules on video sharing platforms in Hungary
The Hungarian Parliament implemented the AVMSD’s new rules on video-sharing platform services in May. The new rules were incorporated into the e-Commerce Act through Hungarian legislation, thus the rules were not embedded in media regulation, but in the act which implemented the e-Commerce Directive in 2001. In fact, a hybrid solution was created, since the definitions, such as the definition of a video-sharing service platform, were incorporated into the Hungarian Media Act. In the future, the legal framework surrounding video-sharing services is going to be determined by both the Hungarian...
[IS] The Icelandic Media Commission’s awareness campaign on disinformation
Fjölmiðlanefnd (the Icelandic Media Commission) has started an awareness campaign in order to help people detect fake news and disinformation. The campaign is called Stoppa, hugsa, athuga (Stop, think, check), and is a collaboration between the Icelandic Media Commission, Embætti landlæknis (the Directorate of Health in Iceland) and Vísindavefurinn (the University of Iceland’s Web of Science), with support from Facebook. The focus of the campaign is to increase people’s awareness of and ability to detect fake news. The aim is to enhance critical thinking...
[IT] AGCOM landmark resolution on press reviews and copyright infringements
By Resolution No. 169/20/CONS adopted on 5 May 2020, the Italian Communications Authority (AGCOM) marked a landmark in the enforcement of copyright on digital works. AGCOM's decision specifically concerns the legitimacy of press reviews. At the end of proceedings commenced upon a complaint filed by the leading Italian newspaper Il Sole 24 Ore, AGCOM ordered the website operated by L’Eco della Stampa to take down the infringing content available therein, pursuant to the regulation on copyright enforcement (Resolution No. 680/13/CONS). In the context of the provision of press reviews,...
[NL] COVID-19 Protocol for film and audiovisual sector
On 18 May 2020, the Dutch Audiovisual Producers Alliance (Nederlandse Audiovisuele Producenten Alliantie, NAPA) and Dutch Content Producers (Nederlandse Content Producenten, NCP), which are associations for independent professional producers, presented a Protocol for different audiovisual productions during the COVID-19 crisis. The Netherlands Film Fund (Nederlands Filmfonds), the national agency responsible for supporting film production and film-related activities in the Netherlands, will ensure the correct use of the Protocol. On 29 May 2020, the second version of the Protocol and corresponding...
[NL] Court rules ISP must provide user data to foreign rightsholders
On 30 April 2020, the District Court of The Hague (Rechtbank Den Haag) ruled that a US television provider is entitled to the names and addresses of Internet subscribers or users using an IP address from which it was presumed that an unlawful exchange of files containing protected works had taken place. The judgment was made against WorldStream, which is a Dutch-based Internet hosting provider. The case revolved around Dish Network, which is a provider of paid television in the United States, and Internet hosting provider WorldStream. Dish Network has concluded licence agreements with the owners...
[NO] Norwegian Media Authority is given competence to take action against advertising for gambling without a licence in Norway
In May 2020, the kringkastingsloven (Broadcasting Act) was amended in order to give Medietilsynet (Norwegian Media Authority, NMA) competence to take measures against illegal advertising for gambling. The amendment enters into force on 1 January 2021. Gambling and lotteries are strictly regulated in Norway. There is an absolute ban on advertising, with the exception of a few companies. Lotteritilsynet (Norwegian Gaming Authority) is responsible for supervising the ban. However, there has been a massive, and until last year, increasing volume of advertising for gambling on TV channels under foreign...
[PT] State takes exceptional measures for media and culture during COVID-19 crisis
On 19 May 2020, the Council of Ministers of Portugal approved a Resolution (Resolução do Conselho de Ministros nº 38-B/2020) establishing an exceptional and temporary measure involving the acquisition of advertising space for the diffusion of institutional actions, within the scope of the COVID-19 pandemic. According to the Council of Ministers, the current pandemic has significantly increased the state's need for institutional advertising, namely in respect of hygiene and containment measures - that citizens are expected to follow. The need for institutional communication,...
[RO] Money for COVID-19 information campaigns
On 27 May 2020, the Senate (upper Chamber of the Romanian Parliament) approved Government Emergency Ordinance (GEO) No. 63 of 7 May 2020 for organising and conducting public information campaigns in the context of the epidemiological situation caused by the spread of COVID-19 (see also IRIS 2020-4/6). Through GEO No. 63/2020, the government, for a fee, and in the conditions of the current COVID-19 epidemiological situation, carries out information campaigns on all types of registered, licensed, professional media channels: TV, radio, print, online and outdoor advertising. Article 6 shows that...
[RO] Rules to resume film production and screening
On 29 May 2020, the joint Order of the Minister of Culture and Minister of Health on the measures to be taken to prevent contamination with the new coronavirus and to conduct safe sanitary activities in museums and art galleries, libraries, bookstores, film and audiovisual production, outdoor activities and drive-ins (see inter alia IRIS 2020-5/30) was published in the Official Gazette of Romania No. 460. The measures are being applied during the state of alert, in the conditions of the gradual lifting of the restrictions, in connection with the need to ensure the development in conditions...
[RU] State Duma adopts draft law on the blocking of infringing content in mobile apps
On 27 May 2020, the State Duma adopted amendments on blocking mobile apps that violate copyright and related rights. The bill was introduced in the State Duma in 2018 by a group of deputies. According to the bill, Roskomnadzor (Federal Service for Supervision of Communications, Information Technology and Mass Media) shall determine the owner of the information resource where the infringing app is located within three working days after receiving a corresponding request from the rightsholder. Roscomnadzor shall then submit an electronic notification of copyright infringement to the owner...