IRIS newsletter 2020-9
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
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2020 European Audiovisual Observatory, Strasbourg (France)
One of the many things that the pandemic has changed is the way we communicate and network. In the pre-COVID world, we were used to meeting physically, shaking hands and talking to each other in person. Now that the coronavirus makes this very natural need for human contact less advisable, technology is jumping to the rescue, providing us with a useful surrogate in the form of videoconferencing. It is certainly not the same, but it is still far better than nothing!
As a recent example of this, the European Audiovisual Observatory organised a conference to present and discuss the findings of a Mapping report on the assessment and the labelling of the nationality of European audiovisual works, co-funded by the Creative Europe Programme of the European Union, with a view to exploring possible ways to simplify the often complicated work of both the stakeholders and the institutions involved in this exercise. The video of the conference is available here.
On the subject of online events, in our previous newsletter, we announced that on 24 September 2020 the European Audiovisual Observatory was organising an online Focus Session on the topic of “Regulation and Responsibility of Video-Sharing Platforms” as part of the “Pluralism and Responsibility. Media in the Digital Society” digital conference series, under the auspices of the German Presidency of the European Union. Now you can watch this interesting online event here.
In the meantime, many EU member states are working hard to transpose the revised AVMSD, and this newsletter bears witness to that, reporting on the most recent bills in France and Slovenia (see also our overview table here). Moreover, this newsletter reports on the bill amending the Dutch Media Act in order to strengthen the future of public broadcasting; the proposed legislation to modify the functions of the BBC and privatise Channel 4; the CSA contribution to the public consultation on the Digital Services Act package; and many other interesting issues!
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
Eurimages updates its governance regulation
Eurimages, the Council of Europe's film co-production fund, has changed its governance rules in order to lighten the selection process for projects applying for funds and to be better prepared to adapt to the currently changing film and audiovisual industry. Therefore, its Board of Management will focus on strategic planning and procedural rules, delegating day-to-day management to an Executive Committee. Moreover, external experts will be in charge of assessing the applications. Since its creation in 1988, the fund has significantly increased its membership - from the original dozen countries...
ECtHR: N.Š. v. Croatia
Balancing the freedom to convey remarks in a television interview concerning a matter of public interest and the necessity of protecting a child’s best interests and privacy rights, the European Court of Human Rights (ECtHR) found a violation of the right to freedom of expression as protected by Article 10 of the European Convention on Human Rights (ECHR). The ECtHR found that the domestic courts in Croatia had applied a too formalistic approach as to the confidentiality of information revealed in a television programme about a child’s custody case. The applicant in this case, N.Š.,...
ECtHR: OOO Regnum v. Russia
Again, the European Court of Human Rights (ECtHR) has found a violation of the right to freedom of expression on the Internet in Russia (see also Vladimir Kharitonov v. Russia, OOO Flavus and Others v. Russia, Bulgakov v. Russia and Engels v. Russia reported in Iris 2020:8). In a defamation case, the domestic judicial authorities have failed to establish convincingly and in conformity with the principles embodied in Article 10 of the European Convention on Human Rights (ECHR) that there had been a pressing social need to impose a high amount of damages to be paid by an online news platform for...
CJEU: Opinion on copyright infringements through framing
On 10 September 2020, Advocate General Maciej Szpunar published his opinion in the case between VG Bild-Kunst and Stiftung Preußischer Kulturbesitz (C-392/19) concerning copyright infringements resulting from the embedding of third-party content on websites. He concluded that embedding works using automatic links (so-called inline linking) requires the authorisation of the copyright holder, whereas embedding them using clickable links using the framing technique does not. The same would apply if the works were embedded by circumventing technical measures taken or instigated by the copyright...
EU: European Commission
Report and Study on the Memorandum of Understanding on online advertising and intellectual property rights
On 14 August 2020, the European Commission published a Report and Study on the functioning of the Memorandum of Understanding on online advertising and intellectual property rights (MoU). The MoU is a voluntary agreement facilitated by the European Commission designed to limit advertising on websites and mobile applications that infringe copyright or disseminate counterfeit goods, signed by 28 advertisers, advertising intermediaries and associations in 2018 (see IRIS 2018-2/7). The MoU contains commitments, for example, that signatories undertake reasonable measures to minimise the placement of...
CJEU rules that the provision of Italian law constitutes a restriction on freedom of establishment and is contrary to EU law
On 3 September 2020, the Court of Justice of the European Union (CJEU) - Case C‑719/18 - ruled that the provision of Article 43, paragraph 11 of the TUSMAR (Consolidated Law on Media Services) is contrary to EU law, constituting a restriction on freedom of establishment while not being suitable for achieving the objective of the protection of pluralism of information. According to the said provision, adopted in 2005, it is forbidden for any company whose revenues in the electronic communications sector (including those obtained through subsidiary or affiliated companies) exceed 40% of the overall...
[AT] ORF broke advertising rules
On 30 June 2020, as part of its supervisory activities, the Austrian regulator for broadcasting and audiovisual media, Kommunikationsbehörde Austria (KommAustria), ruled that Austrian public service broadcaster ORF had committed several breaches of the ban on surreptitious advertising and two breaches of the requirement to distinguish between advertising and editorial content, enshrined in the ORF-Gesetz (ORF Act – ORF-G). KommAustria is responsible for checking compliance with the ORF-G’s provisions on commercial communication. It therefore regularly evaluates programmes that...
[BE] CSA contribution to the public consultation on the Digital Services Act package
Like other national regulators, the Belgian Conseil supérieur de l’audiovisuel (regulatory authority for the audiovisual sector of the French-speaking Community of Belgium – CSA) participated in the public consultation on the Digital Services Act (DSA) package. The consultation was organised by the European Commission from 2 June to 8 September 2020 (see IRIS 2020-7/9). The European Regulators Group for Audiovisual Media Services (ERGA) also contributed to the debate. ERGA is a consultative body set up by the European Commission which brings together the audiovisual regulatory...
[DE] German courts issue rulings on Instagram influencer labelling obligation
In two recent judgments issued on 21 July and 9 September 2020, the Landgericht Köln (Cologne Regional Court, Case no. 33 O 138/19) and the Oberlandesgericht Karlsruhe (Karlsruhe Regional Court of Appeal, Case no. 6 U 38/19) ruled that Instagram influencers were obliged to label references to brand names as advertising. The Landgericht Köln decided that such posts by Instagram influencers should be labelled as advertising even if no remuneration was involved. Product recommendations constituted a commercial practice even if no advertising contract had been agreed. In this case,...
[DE] Ruling on ex-chancellor Kohl’s widow’s claim to information about whereabouts of tape recordings
In a ruling of 3 September 2020, the third civil chamber of the Bundesgerichtshof (Federal Supreme Court – BGH), Germany’s highest civil court, decided that the widow of former German chancellor Helmut Kohl was entitled to information about the existence and whereabouts of copies of tape recordings with a view to filing a subsequent surrender claim against the defendant, a well-known journalist. The dispute followed a claim for information about the existence and, in particular, the whereabouts of written, digital and other copies of tape recordings of interviews that the defendant...
[DE] Youth protection body publishes report on search engine filter mechanisms
On 21 August 2020, the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) published a report entitled “Search engine filter mechanisms”. The report, prepared by jugendschutz.net on behalf of the KJM, studied the security settings of Germany’s two most popular search engines, Google and Bing. It concluded that, even when security settings were activated, children and young people using both platforms could easily come into contact with content that could harm their development, especially through search results relating to...
[FR] Fight against fake news: first CSA report published
On 10 September, the European Commission presented its evaluation report on the Code of Practice on Disinformation, which was launched at the end of 2018. The report takes into account the annual self-evaluation reports of the platforms that have signed the code (Google, Facebook, Twitter, Microsoft, Mozilla and TikTok). These platforms have set up policies aimed in particular at reducing advertising opportunities and economic incentives for distributors of online disinformation and at creating functionalities that give prominence to reliable information. The report notes that the quality of the...
[FR] Minister of Culture presents measures to support recovery of cinema and audiovisual sectors
The cultural sector continues to be hit hard by the health crisis. On 23 September, the French Minister of Culture, Roselyne Bachelot, presented a set of measures to support the audiovisual and film industries. The measures include, on the one hand, a EUR 50 million emergency fund managed by the Centre national du cinéma et de l’image animée (National Centre of Cinematography and the Moving Image – CNC) to encourage cinema operators to resume their activities by offsetting the loss of box office revenues suffered by cinemas due to the drop in ticket sales from September...
[FR] Timetable for transposition of AVMS Directive and revision of SMAD Decree becomes clearer
Through an amendment of the Projet de loi portant diverses dispositions d’adaptation au droit de l’Union européenne en matière économique et financière (Bill covering various provisions to adapt to European Union economic and financial law – DDADUE), examined by the Senate on 7 and 8 July, the government gave itself the power to legislate by ordinance in order to transpose the Audiovisual Media Services Directive 2018/1808 of 14 November 2018 (AVMS Directive). The bill will be examined by the National Assembly on 7 October. The Ministry of Culture announced...
[GB] Ofcom approves the brand new Radio 1 Dance stream on BBC Sounds
Ofcom is required under Article 46 of the BBC Charter to create and operate an Operating Framework for the BBC in order to reduce the risk of the impact that the BBC might have on fair and effective competition. Before the BBC changes its trading arrangements, under the BBC Agreement it must consider whether any of the changes it proposes are “material”; it may only carry out material changes with the approval of Ofcom. Material changes are, according to the BBC Agreement: the carrying out of a new type of activity as a commercial activity, or a significant change to the...
[GB] ICO’s Age Appropriate Design Code comes into effect
On 2 September 2020, the Information Commissioner’s Office (ICO), the United Kingdom's independent body established to uphold information rights, formally issued its Age Appropriate Design Code of Practice which should be followed by online services to protect children’s privacy. The Age Appropriate Design Code of Practice is a statutory code required under section 123 of the Data Protection Act 2018 (DPA 2018) and aims to address the increasing “datafication” of children. The Code was first published on 12 August 2020 and, following completion of its parliamentary...
[GB] Proposed legislation to modify the functions of the BBC and privatise Channel 4
Currently, there are before the UK Parliament three proposed items of legislation which, if enacted, will affect the BBC and, in one instance, another public sector broadcaster (PSB): Channel 4. The BBC Licence Fee (Civil Penalty) Bill proposes to decriminalise the non-payment of the BBC licence fee. The prime source of annual revenue for the BBC is a fee that users of its terrestrial, streaming and downland TV services have to pay. There are a limited number of licence fee exemptions, otherwise users are liable to criminal prosecution if caught using the BBC services without a licence....
[LT] The Supreme Administrative Court confirms journalists’ right to obtain recordings of Government meetings
The story began in Autumn 2018 when Lietuvos Vyriausybė (the Government of the Republic of Lithuania) decided to charge journalists for the provision of data and information from official state registers. Prior to that date, all the data was freely accessible without payment. Such a decision provoked enormous discontent amongst both journalists and the public. Faced with public pressure, the government was forced to convene a meeting on 3 October 2018 and discuss this matter once again. Information that the meeting had been very heated and that the prime minister had expressed himself in a very...
[NL] Appeal Court judgment on politician’s conviction over televised speech and interview
On 4 September 2020, The Hague Court of Appeal delivered an important judgment on the appeal made by controversial Dutch politician Geert Wilders over his conviction for comments made during a media interview and a televised speech (see IRIS 2017-2/25). Notably, the court of appeal upheld Wilders’ conviction for group insult, but set aside his conviction for incitement to discrimination. Similar to the lower court ruling, the court of appeal also decided not to impose a sentence on Wilders. The judgment contains important principles on a politician’s right to freedom of expression and...
[NL] New bill amending the Media Act
On 31 August 2020, the Minister for Primary and Secondary Education and Media introduced a new bill to the Lower House of Parliament (Tweede Kamer), which will amend the Media Act (Mediawet) 2008, in order to strengthen the future of public broadcasting. The publication of the bill follows the Minister’s Letter to Parliament in June 2020 on the future of public broadcasting, which set out the Dutch Government’s plans for public broadcasting. The Minister also reached agreement on the proposed amendments with the public broadcasting organisation NPO (Nederlandse Publieke Omroep) earlier...
[SI] Slovenia’s draft AVMS law introduces obligations to invest in European works
In addition to the draft media laws published by the Slovenian Ministry of Culture in July (see IRIS 2020-8/21), the Ministry also published a draft proposal for amending the Law on Audiovisual Media Services on 6 July. A first consultation closed in August, and the Ministry of Culture has redrafted sections of the law and extended the consultation on the draft until 2 October 2020. The purpose of the draft amendments is to transpose the Audiovisual Media Services Directive. For the most part, the law directly reflects the AVMS Directive. During the first consultation period, several issues were...