IRIS newsletter 2020-8
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
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2020 European Audiovisual Observatory, Strasbourg (France)
According to Article 2 of the Audiovisual Media Services Directive, as amended in 2018, “Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 19 September 2020.” Now that this deadline has just passed, it is evident that not all EU member states have met it. As you can see from the table that the European Audiovisual Observatory has published on its website, most countries are still working on the transposition of the new AVMSD. Certainly, the COVID-19 crisis has delayed the work of many legislative bodies, however it can be expected that the transposition of the amended Directive into the national legislative frameworks of the remaining member states will continue to take place in the coming months. Needless to say, we will keep you informed of further developments on these electronic pages.
One of the most salient aspects of the amended Directive is certainly the introduction of new rules concerning video-sharing platforms (VSPs). In order to help provide some clarity on this issue, the European Audiovisual Observatory is organising an online Focus Session on the topic of “Regulation and Responsibility of Video-Sharing Platforms”. This online event, which is part of the digital conference series “Pluralism and Responsibility. Media in the Digital Society!” organised by the German Presidency of the European Union, will take place on 24 September 2020 from 11.00 a.m. to 12.30 p.m. You will find more information on this event and ways to connect to it here.
Other than that, the present newsletter provides, as usual, an interesting read!
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
WTO: Panel Report on sports piracy in Saudi Arabia
On 16 June 2020, a World Trade Organization (WTO) panel recommended that Saudi Arabia bring its measures into conformity with its obligations under the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) concerning the simulcasting of Qatar-based beIN sports channels by beoutQ, a Saudi Arabian pay-TV broadcaster. According to the Panel Report, in August 2017, beoutQ began the unauthorised distribution and streaming of media content that was created by or licensed to beIN, replacing beIN's logo with that of beoutQ, providing access to 10 beIN sports channels...
COUNCIL OF EUROPE
ECtHR: Carl Jóhann Lilliendahl v. Iceland
In a highly topical decision on hate speech, the European Court of Human Rights (ECtHR) found that the right to freedom of expression and information as guaranteed by Article 10 of the European Convention on Human Rights (ECHR) can be limited when it is necessary to protect the right of homosexual persons to enjoy human rights to exactly the same extent as others, irrespective of their sexual orientation (see also Beizaras and Levickas v. Lithuania, IRIS 2020-3/21). It found that a criminal conviction in Iceland for hate speech against homosexuals, expressed via the Internet, had not violated...
ECtHR: Jezior v. Poland
In a case concerning Internet liability for third-party comments, the European Court of Human Rights (ECtHR) again delivered an interesting judgment in support of the right to freedom of expression on the Internet. In the case of Jezior v. Poland, the ECtHR found that holding the administrator of a local website liable for defamatory third-party comments, which upon notice had been immediately removed, amounted to a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). As in the case of Magyar Tartalomszolgáltatók Egyesülete...
ECtHR: Vladimir Kharitonov v. Russia, OOO Flavus and Others v. Russia, Bulgakov v. Russia and Engels v. Russia
In four judgments of 23 June 2020, the European Court of Human Rights (ECtHR) found that the blocking of websites and media platforms in Russia had violated the right to freedom of expression and information as guaranteed by Article 10 of the European Convention of Human Rights (ECHR). The cases concern different types of blocking measures, including collateral blocking (where the IP address that was blocked was shared with other sites), excessive blocking (where the whole website was blocked because of a single page or file) and wholesale blocking of media outlets for their news coverage. One...
EU: European Commission
Guidelines on video-sharing platforms and European works under revised AVMSD
On 2 July 2020, the European Commission published two important sets of guidelines pursuant to the revised Audiovisual Media Services Directive (AVMSD) which extends audiovisual rules to what are termed video-sharing platforms (see IRIS 2019-1/3). The first set of guidelines concerns the application of the “essential functionality” criterion of the definition of a video-sharing platform under the AVMSD; while the second set of guidelines relates to the calculation of the share of European works in on-demand catalogues. First, under Article 28b(1) of the AVMSD, member states are...
[CZ] Broadcasting Council punished unfair commercial practice
The Council for Radio and Television Broadcasting of the Czech Republic, as the central regulatory authority, imposed a fine on Emporia Style Kft. on 5 May 2020 for deceptive advertising on a teleshopping channel. The company was found guilty in accordance with the provisions of Article 8a, paragraph 2b of Act No. 40/1995 Coll. of a violation of the provisions of Article 2, paragraph 1b of Act No. 40/1995 Coll. for commissioning broadcasting slots for the Gallery programme of teleshopping broadcaster Klenot TV on 16 July 2019. Under the provisions of section 4, paragraph 3 of Act No. 634/1992...
[DE] Constitutional Court strengthens press freedom in two judgments
The Bundesverfassungsgericht (Federal Constitutional Court – BVerfG) strengthened the freedom of the press in two judgments issued on 23 June 2020. Although the cases dealt with very different issues, in both decisions the BVerfG highlighted the importance of protecting a free press in the context of democratic opinion-forming. In the first case (no. 1 BvR 1716/17), a constitutional complaint had been filed against a criminal conviction imposed after an unpixelated image of a dark-skinned patient in a university hospital waiting room was forwarded to a newspaper. The photographer had ignored...
[DE] Draft bill to implement EU Copyright Directive
On 24 June 2020, the German Bundesministerium der Justiz und für Verbraucherschutz (Federal Ministry of Justice and Consumer Protection – BMJV) published a discussion draft for a “Second Act to adapt copyright law to the requirements of the Digital Single Market”. The draft contains proposals for the implementation of several provisions of the Directive on Copyright in the Digital Single Market (EU) 2019/790 (DSM Directive), which entered into force last year. Among other things, it introduces two new legal instruments into German copyright law with provisions on the liability...
[DE] Federal Administrative Court ends longstanding dispute over SAT.1 licence switch
In a ruling of 15 July 2020 (Case no. BVerwG 6 C 25.19), the German Bundesverwaltungsgericht (Federal Administrative Court – BVerwG) ended a longstanding dispute over a change of licence for German TV broadcaster SAT.1 by rejecting a complaint by two German regulators against another German regulator as inadmissible. It ruled that a regional media authority did not have legal standing to revoke a licence granted by another regional media authority to a private broadcaster for a national television channel. The licence granted to Sat.1 was therefore lawful. Private broadcasters in Germany...
[DE] Supreme Court issues Google “right to be forgotten” rulings
On 27 July 2020, the German Bundesgerichtshof (Federal Supreme Court – BGH) issued two decisions on the “right to be forgotten”, which gives people the right to have their personal information deleted by data processors such as search engine operators after a certain period of time. However, the right does not apply without restriction, but depends on a series of factors that need to be weighed up. This is demonstrated by both BGH decisions, in which one claim was rejected while the other was submitted to the Court of Justice of the European Union (CJEU). The first procedure...
[DE] Supreme Court rules in cartel authority’s favour in Facebook dispute
In a decision of 23 June 2020, the German Bundesgerichtshof (Federal Supreme Court – BGH), the highest civil court in Germany, provisionally upheld the charge that Facebook had abused a dominant market position. The Bundeskartellamt (Federal Cartels Office), which is responsible for competition-related matters in Germany, had previously prohibited social media provider Facebook from processing data captured during Internet use outside the Facebook platform without the users’ specific consent. Under the BGH’s decision, the prohibition notice can now be enforced. The case concerns...
[FR] Constitutional Council blocks online hate law
The so-called ‘Avia law’ (named after the MP who tabled the bill), which aims to combat hate speech on the Internet, has been blocked. Having finally been adopted as France came out of lockdown on 13 May 2020 after a difficult legislative process lasting almost 18 months, the law, which had been criticised by numerous bodies and institutions, was rejected by the Constitutional Council on 18 June. The text, which would have seen criminal sanctions imposed by the CSA (the French audiovisual regulator) against platforms that failed to remove terrorist material or child pornography within...
[FR] More films to be broadcast on television with fewer constraints
Announced several months ago as part of audiovisual reforms designed to ease the regulatory constraints on broadcasters struggling to compete with online platforms, Decree No. 2020-984 of 5 August 2020 has relaxed the rules on programme schedules as well as on the annual limits on the broadcasting of cinematographic works on television, as enshrined in Decree No. 90-66 of 17 January 1990. The changes particularly reflect the fact that the rules, which had been unaltered for more than ten years, had become obsolete as a result of the emergence of numerous delinearised methods of accessing films...
[FR] Targeted advertising and cinema ads to be allowed on television
Having been anticipated for several months but repeatedly delayed by the health crisis and the postponement of the audiovisual reforms, Decree No. 2020-983 of 5 August 2020 has brought with it a two-fold relaxation of the television advertising rules enshrined in Decree No. 92-280 of 27 March 1992 defining the obligations of service providers in relation to advertising, sponsorship and teleshopping. Firstly, the decree allows television broadcasters to use targeted advertising under supervision. Targeted advertising, which enables broadcasters to show different advertisements in different broadcast...
[GB] CGTN breached Ofcom’s impartiality rules over its coverage of the Hong Kong protests
Chinese news service CGTN was held by Ofcom to have breached rules 5.1, 5.11 and 5.12 relating to impartiality in respect of the Hong Kong protests in response to the Hong Kong Government’s Extradition Law Amendment Bill. The bill would allow criminal suspects in Hong Kong to be sent to mainland China for trial. Ofcom deemed that various CGTN news items about the Hong Kong protests had not been duly impartial on a matter of major political controversy and relating to current public policy. Ofcom considers that these breaches merit the imposition of a statutory sanction. CGTN is the international...
[IT] Parliament strengthens parental control and filtering in electronic communications
By way of Law No. 70 of 25 June 2020, the Italian Parliament has introduced a new provision, namely Article 7-bis, into Law Decree No. 28/2020. The Italian Government adopted the aforesaid decree (also known as the ‘Justice Decree’, ‘Decreto Giustizia’) with a view to providing urgent measures concerning, among others, civil, criminal and administrative proceedings as well as the national contact tracing system, both related to the COVID-19 emergency. The introduction of Article 7-bis, entitled ‘Systems for the protection of minors from the risks of cyberspace’,...
[NL] ISPs ordered to block The Pirate Bay
On 2 June 2020, the Gerechtshof Amsterdam (Amsterdam Court of Appeal) delivered an important judgment in the case between Internet service providers (ISPs) Ziggo and XS4ALL against Stichting Brein, following years of litigation. Stichting Brein is a foundation formed by rightsholders to act against copyright piracy. Stichting Brein requested a dynamic blocking injunction against the two ISPs at the Court of The Hague in 2014 for not blocking access to The Pirate Bay (see IRIS 2014-3/37). The case made its way to the Netherlands Supreme Court (Hoge Raad der Nederlanden), who asked the Court of...
[NL] Illegal content posted during public broadcaster’s Facebook Livestream
On 7 July 2020, the Rechtbank Amsterdam (District Court of Amsterdam) delivered a notable judgment on illegal content posted during a public broadcaster’s Facebook Live event. The content was held to fall under Article 137c of the Dutch Criminal Code, which forbids the public insult of a group of people based on their race, religion, sexual orientation, etc. The facts of this case concern the comment of a 49-year-old man which he posted in the comment section of the public broadcaster NOS’s livestream of the Keti Koti festival, broadcast on Facebook Live. This is an annual...
[NL] Investigative documentary using hidden-camera footage not unlawful
On 9 June 2020, the Gerechtshof Amsterdam (Amsterdam Court of Appeal) issued an important ruling on the use of hidden-camera footage as part of a commercial broadcaster’s investigative programme. The case arose on 9 October 2016, when the Dutch broadcaster SBS6 broadcast an episode for the television series Undercover in the Netherlands, addressing the performance of illegal polygamous wedding ceremonies by imams. The show used hidden cameras attached to witnesses of a ceremony in order to document it. The claimant, the Imam who was secretly filmed for this episode, initiated legal proceedings...
[NO] Media Liability Act enters into force
In May 2020, the Storting (Norwegian Parliament) unanimously passed the Act relating to editorial independence and liability of editor-controlled journalistic media, medieansvarsloven (Media Liability Act). The act entered into force on 1 July 2020. It updates and gathers special rules on liability in the media field and introduces new legislative provisions. The former mediefridomslova (Editorial Independence Act) is repealed from the entry into force of the new act. The legislative process followed up on the report of the Medieansvarsutvalget (Media Liability Commission) on freedom of expression...
[PL] New VOD-related fees in Poland
As of 1 July 2020, on-demand audiovisual media service providers in Poland are subject to a new fee: the so-called “Netflix tax”. The fee is to be paid by on-demand audiovisual media service providers to the Polish Film Institute (PISF) and amounts to 1.5% of the revenue received from fees for access to audiovisual media services made available to the public on demand or from commercial communications, whichever is higher. The new VOD-related fee has been introduced by the Polish Government as a response to the COVID-19 pandemic. The fees collected by the PISF will be allocated...
[RO] Aid for the Romanian cinema industry
On 19 August 2020, the Romanian Government adopted the Decision on amending and supplementing Government Decision No. 421/2018 for the establishment of a state aid scheme to support the film industry (see, inter alia, IRIS 2011-2/5, IRIS 2018-8/37, IRIS 2019-2/22, IRIS 2019-4/28, IRIS 2020-5/30, IRIS 2020-6/4 and IRIS 2020-7/12). The Minister of Culture, Bogdan Gheorghiu, announced that the film and audiovisual industry, through the Ministry of Economy, Energy and Business Environment, would soon be able to benefit from non-reimbursable financial support to the amount of up to 45% of the project...
[RO] Most popular torrent site in Romania seized by prosecutors
Filelist.ro, the most popular and used torrent site in Romania, which has been operating for the last 12 years, was seized by the prosecutors of the Prosecutor's Office attached to the High Court of Cassation and Justice. The prosecutor's office announced that this domain name had been seized in accordance with the provisions of Article 249 of the Code of Criminal Procedure (General conditions for taking precautionary measures), the domain name being the subject of a criminal case. On the site, users could find links to torrents in order to download copyrighted video games, movies and...
[RO] Rules for the 2020 local elections campaign coverage
On 18 August 2020, the Consiliul Naţional al Audiovizualului (National Audiovisual Council, CNA) adopted Decision No. 475/2020 on the rules governing the audiovisual campaign for the local elections in 2020. The local elections in Romania are scheduled for 27 September 2020; they were postponed from May-June 2020 due to the COVID-19 pandemic (see, inter alia, IRIS 2008-10/27, IRIS 2009-1/29, IRIS 2009-10/24, IRIS 2011-3/29, IRIS 2011-9/31, IRIS 2012-6/30, IRIS 2014-5/27, IRIS 2014-10/30, IRIS 2016-10/25, IRIS 2019-5/23, IRIS 2019-6/21 and IRIS 2019-9/22). Article 2 foresees that the candidates...
[SI] The government proposes changes to a range of media legislation
On 9 July 2020, the Slovenian Ministry of Culture published draft amendments to three pieces of legislation: the Slovenia Radio and Television Act, the Mass Media Act and the Slovenia Press Agency Act. These draft laws need to be considered as a package as they are connected in terms of some of the changes to clauses. The drafts were published for consultation and the time allowed was five days (to 15 July), which led to widespread criticism, as this did not follow the normal legal procedure as regards the time allowed for consultation. A statement criticising the limits to public consultation...