IRIS newsletter 2020-10
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)
The second wave of the COVID pandemic is unfortunately upon us, and lockdown measures are being reintroduced in different countries around Europe. Unsurprisingly, this month’s newsletter contains many articles dealing in one way or another with this topic. In the Netherlands, the District Court of Amsterdam ruled that YouTube was not required to reinstate videos containing alleged COVID-19 disinformation. In the United Kingdom, the Information Commissioner’s Office imposed fines on companies for seeking to illegally make a profit from the current public health emergency. In Italy, the Constitutional Affairs Committee of the Senate is currently discussing the establishment of a parliamentary committee of inquiry to investigate the problem of disinformation and, more precisely, the dissemination on a massive scale of fake news.
As lockdown continues to heavily influence our lives, the Observatory is doing its utmost to keep you informed in every possible way. For example, this year our yearly December workshop will (again, unsurprisingly) take place online. We have chosen a very topical issue for our expert discussion: Diversity and inclusion in the European audiovisual industries (both on- and off-screen). You will find more information about how to join the discussion here.
Setting aside the pandemic, mid-November has come and gone and many EU member states are still in the process of transposing the revised AVMSD. As you will read in these electronic pages, last month the Spanish regulator CNMC launched a public consultation on the application of the media service providers regulation to VSPs, and France is currently discussing a bill in parliament in this regard. If you want to be kept up-to-date with the newest developments concerning this transposition, check our overview table here.
We are wrapping up 2020 with this newsletter. Stay safe, enjoy your read and we’ll be back in the new year!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
CoE: Parliamentary Assembly
Parliamentary Assembly: Resolutions and recommendations concerning COVID-19 and Artificial Intelligence
The Standing Committee of the Parliamentary Assembly of the Council of Europe (PACE), which acts on the Assembly’s behalf between plenary sessions, met successively on 12 and 13 October 2020, then on 22 and 23 October 2020, by videoconference. An important topic discussed at these meetings concerned the measures restricting human rights taken in response to the COVID-19 pandemic. While states of emergency may allow for a more rapid and effective response to a major health crisis, they can also be hazardous from the perspective of human rights, democracy and the rule of law, posing risks...
ECtHR: B.Z. Ullstein GMBH v. Germany
A recent decision by the European Court of Human Rights (ECtHR) dealt with photojournalism and crime reporting in the media. The ECtHR dismissed a claim on journalistic freedom with regard to the publication of a photo of a juvenile delinquent, P. It found that an injunction preventing any publication of a portrait photo of P. had not violated a newspaper’s right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). P. was 18 years old when he attacked and severely injured a man in a subway station by hitting and kicking him in the head....
ECtHR: Baldassi and others v. France
In a case concerning freedom of political expression and the right to protest, the European Court of Human Rights (ECtHR) found that the conviction of pro-Palestine activists had violated their right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). The activists were convicted for incitement to economic discrimination on account of their campaign aimed at boycotting products imported from Israel. The 11 applicants in this case are members of the “Collectif Palestine 68”, which is a local relay for the international campaign “Boycott,...
EU: European Commission
First Annual Report on the Rule of Law in the EU, including media pluralism and freedom
On 30 September 2020, the European Commission published its 2020 Rule of Law Report: The rule of law situation in the European Union, which is the first annual report as part of the new European Rule of Law Mechanism announced in the Political Guidelines of the Commission’s new President in late 2019. The new Rule of Law Report is intended to act as a preventive tool by identifying rule of law trends in EU member states, and by helping to prevent serious problems from arising or becoming more acute. The Report includes separate country chapters for all 27 EU member states, and, crucially,...
[AT] Copyright infringement by Internet live stream and use of an online video recorder
In a decision issued on 22 September 2020, the Austrian Oberste Gerichtshof (Supreme Court – OGH) gave its views on (cable) retransmission via the open Internet and online video recorders that use the deduplication technique. The plaintiffs are television broadcasters based in Germany who had signed collection agreements with the German collecting society VG Media that expressly excluded the rights for retransmission via open networks (OTT services). The defendant, who operates an Austrian mobile communications network, offers public telephone and Internet services and a TV service that...
[BG] Competition authority finds that proposals for amendment to the Radio and Television Act would restrict competition
On 1 October, a competition advocacy decision of Комисия за защита на конкуренцият (the Commission for Protection of Competition - CPC), namely Decision No. АКТ-788-01.10.2020 of the CPC on bills for amendment and supplement to the Закон зо ридио телевизията (the Radio and Television Act - RTA), found that two bills would restrict competition on the media market. To issue its decision, the CPC relied on Article 28, paragraph 1 of Закон за защита на конкуренцията (the Competition Protection Act - CPA), which provides that the CPC shall assess the conformity of bills (and/or other acts) with...
[DE] Bundestag report questions constitutionality of NetzDG amendment
In a report published on 15 September 2020, the Wissenschaftliche Dienst (research office) of the German Bundestag (lower house of parliament) noted that parts of the new law on combating right-wing extremism and hate crime were unconstitutional. The report raises concerns about the constitutionality of the law’s provisions on obligations to hand over deleted content and IP addresses to German prosecution authorities. It comes after the German Bundesverfassungsgericht (Federal Constitutional Court) recently declared current rules on the disclosure of inventory data unconstitutional. The...
[DE] Federal Supreme Court: Heir entitled to access user’s full social network account
On 27 August 2020, the Bundesgerichtshof (Federal Supreme Court – BGH), the highest German civil court, decided that the operator of a social network must provide a deceased user’s heir with access to the user’s account. The heir must be allowed to access the account and its content in the same way as the original account holder. However, they may not actively use the account. The case concerned a ruling of the Landgericht Berlin (Berlin regional court) of 17 December 2015, which had previously been confirmed by the BGH (judgment of 12 July 2018 – III ZR 183/17 –...
[DE] KJM updates supervision criteria for youth protection in broadcasting and telemedia
In August 2020, the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) of the German Landesmedienanstalten (state media authorities) updated its broadcasting and telemedia supervision criteria. New criteria were added to take account of new Internet trends, such as influencer marketing, and the dangers of online gaming addiction. The KJM is an organ of the Landesmedienanstalten. Germany’s federal structure, in which 14 state media authorities operate in the 16 Bundesländer (federal states), means that a joint body is needed...
[DE] Media regulator takes action against Twitter for pornographic content
On 30 September 2020, the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) ruled that youth protection rules had been breached on the Twitter platform. Unable to prosecute the account holders concerned on account of their anonymity, the KJM held Twitter itself responsible. In six separate cases, the KJM found that Twitter users had breached the German Jugendmedienschutz-Staatsvertrag (Inter-State Treaty on the protection of minors in the media – JMStV) by making pornographic content publicly accessible. Since the service providers...
[DE] State media authorities publish disinformation report
On 1 October 2020, the German Landesmedienanstalten (state media authorities) published a report on the different forms of disinformation and its distribution from both communication-related and legal perspectives. The report defines various types of disinformation, categorises them from a legal point of view and describes measures that can be taken to combat them. The report describes the seven main forms of disinformation or misinformation and the threats they each pose to society and democracy. They include deliberate decontextualisation of real information; deliberate misinformation; manipulative...
[ES] CNMC launches public consultation on the application of media service providers regulation to VSPs
On 1 October, the National Commission on Markets and Competition (Comisión Nacional de los Mercados y la Competencia - CNMC), the Spanish regulator, launched a public consultation to determine whether video-sharing platforms (VSP) should comply with the current regulation that media service providers (MSP) are subject to. The development of new audiovisual actors such as VSPs and new media services which are sometimes difficult to categorise were some of the reasons for the update of the AVMSD; the new Directive redefined the concept of a programme, making it no longer necessary to have...
Confirmation of competition authority decision requiring Google to negotiate with press publishers in good faith
The dispute between Google and representatives of press publishers and the France Presse agency has entered round 2. The press representatives had appealed to the French competition authority complaining about Google’s implementation of the Act of 24 July 2019 creating a neighbouring right for press publishers and agencies. A month before the Act entered into force, Google had decided to stop posting article excerpts, photographs and videos within its various services unless publishers allowed it to do so free of charge. In practice, the vast majority of press publishers had therefore granted...
[FR] AVMS Directive transposition talks continue
At a joint committee meeting held at the French Parliament on 22 October, MPs and senators failed to reach agreement on the outstanding provisions of the Projet de loi portant diverses dispositions d’adaptation du droit national au droit de l’Union européenne (Bill covering various provisions to adapt national law to European Union law – DDADUE). The bill is designed to enable the government to transpose the European Union’s Audiovisual Media Services, Copyright and Cab-Sat Directives by ordinance. Having been adopted at first reading by the Senate on 8 July 2020...
[FR] C8 must pay EUR 3 million fine imposed by CSA after phone call hoax
On 26 July 2017, the Conseil supérieur de l’audiovisuel (the French audiovisual regulator – CSA) imposed one of the largest fines it had ever inflicted on a television channel for inappropriate conduct on air. Pursuant to Articles 42 and 42-1 of the Act of 30 September 1986, it fined the C8 channel (Groupe Canal Plus) EUR 3 million following a sequence broadcast during the programme Touche pas à mon poste two months earlier. During the programme, its presenter had encouraged people contacted by telephone to talk about their private lives and sexual activities in very crude...
[FR] Law to protect child YouTubers and influencers
The activities of children under 16 whose image is disseminated via online video platforms are now regulated in France. This phenomenon often has significant economic and financial implications, either for the children’s families, who frequently generate a large income from it, or for the brands that use these videos as a new form of advertising. Before the recent introduction of a new law, videos of this type, which are filmed by parents and depict minors, were not regulated in any way. Unlike the work of children in the entertainment industry, for example, filming schedules and durations...
[FR] Strengthening of health measures: Culture Minister announces new support for cinemas and the performing arts
On 14 October, as the second wave of the COVID-19 pandemic took hold, Emmanuel Macron imposed a curfew from 9 p.m. to 6 a.m. in France’s eight largest cities and throughout Ile-de-France. Much to the disappointment of film industry representatives, evening cinema screenings, which are crucial for cinema operators, were therefore prohibited. On 22 October, the President of the Republic extended the curfew to a further 38 départements. Six days later, he announced a nationwide lockdown, including the closure of all cinemas. On 22 October, as part of the support and assistance measures...
[GB] DCMS publishes UK transition rules for broadcasting and video-on-demand services from 1st January 2021
The Department for Digital, Culture, Media & Sport (DCMS) has published new rules for broadcasters and video-on-demand providers which will apply once the United Kingdom’s transition period for leaving the European Union has expired, that is to say, on 31 December 2020. On 1 January 2021, the Audiovisual Media Services Directive (AVMSD), including the country of origin principle, will no longer apply to UK services broadcasting to the European Union. The Council of Europe’s European Convention on Transfrontier Television (ECTT) framework, which came into force in 1993, will continue...
[GB] ICO targets companies for seeking to illegally make profit from the current public health emergency
On 24 September and 8 October 2020, the Information Commissioner’s Office (ICO), the United Kingdom's independent body established to uphold information rights, imposed fines on two companies for sending thousands of nuisance marketing texts and unlawful marketing emails at the height of the current pandemic. In September 2020, Digital Growth Experts Limited (DGEL) was issued with a monetary penalty of GBP 60 000 in relation to a serious contravention of Regulations 22 and 23 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). The PECR provide for specific...
[IT] Parliament considers establishing an ad-hoc parliamentary committee of inquiry on the massive dissemination of fake news
The Constitutional Affairs Committee of the Senate of the Italian Republic is currently discussing a bill (No. 1900) aimed at establishing a parliamentary committee of inquiry to investigate the problem of disinformation and, more precisely, the dissemination on a massive scale of fake news. It is well known that Italian lawmakers and regulators have already attempted to introduce some measures to counter the spread of disinformation on the Internet; however, none of the initiatives undertaken so far have reached the approval stage, triggering a lot of criticism (see IRIS Special on media coverage...
[NL] Court rules YouTube not required to reinstate video containing alleged COVID-19 disinformation
On 9 September 2020, the Rechtbank Amsterdam (District Court of Amsterdam) delivered an important judgment involving YouTube videos that were said to contain COVID-19 disinformation. The judgment concerned two videos removed from YouTube in which a doctor was interviewed regarding the controversial, and in the Netherlands unrecognised, drug against COVID-19, hydroxychloroquine (HCQ). In this case, Cafe Weltschmerz - a Dutch citizen journalism platform with a channel on YouTube - initiated legal proceedings against Google Ireland, the company offering YouTube in Europe. A doctor who was interviewed...
[NL] Unlawful allegations contained in investigative crime programme using hidden camera
On 4 September 2020, the Rechtbank Amsterdam (District Court of Amsterdam) delivered an important judgment on the lawfulness of allegations contained in an investigative crime programme which targeted a private individual. The court laid down notable principles on the requisite factual basis for reporting serious allegations and on the use of hidden-camera footage by broadcasters, which has also been the subject of other recent rulings (see IRIS 2020-8/4). The case arose in January 2018, when the commercial broadcaster SBS6 broadcast an episode of its investigative programme Moord of zelfmoord...
[RU] New legislation on infringing apps
Mobile apps that distribute unlicensed content can now be blocked within three days. On 1 October, the law on the possible blocking of applications that violate copyright came into force. According to the new regulation, the rightsholder is entitled to request the Federal Service for Supervision of Communications, Information Technology and Mass Media, RKN, to block the infringing application. RKN, in turn, informs the owner of the resource hosting the dubious mobile app about copyright infringement and requires it to be blocked. Within one business day, the resource must pass this information...
[SI] Government plans “super regulator” merging AKOS with five other regulatory agencies
On 1 October 2020, the Slovenian Government wrote to eight regulatory agencies informing them of its intention to enact legislation which will result in the formation of two super agencies. One merger involves joining together the Agency for Communication Networks and Services (AKOS) with five other regulators. AKOS currently regulates and supervises the electronic communications market, the radio frequency spectrum in Slovenia, radio and television activities, and the postal and railway services markets in Slovenia. The new law will now join AKOS with the Energy Agency, the Agency for the...