IRIS newsletter 2021-2
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
© 2021 European Audiovisual Observatory, Strasbourg (France)
The year 2020 ended with a vague promise of a return to normality. And while we have started to see some light at the end of the tunnel thanks to the vaccine distribution process, we are becoming painfully aware of the fact that certain things may never be the same again. Some of these changes may have been brought about by the various effects of the pandemic. Others, however, may be the result of pre-existing trends.
The European Commission seems to have been aware of the need for change, since in December 2020, it launched a series of far-reaching policy and legislative initiatives. At the beginning of the month, the European Commission presented a European Democracy Action Plan, which aims at empowering citizens and building more resilient democracies across the European Union, and a Media and Audiovisual Action Plan to support the recovery and transformation of the media and audiovisual sector. A couple of weeks later, it presented a comprehensive regulatory package, the so-called Digital Services Act package, that aims at modernising the current legal framework for digital services, including social media, online marketplaces, and other online platforms that operate in the European Union.
All these initiatives have raised their share of hopes, fears and, most of all, questions – lots of questions. That is why the European Audiovisual Observatory has decided to give the public a first look at the new Digital Services Act package through an online conference that will take place on Thursday, 11 February from 3 p.m. to 5 p.m. Brussels/Paris time. You can follow the conference free of charge by clicking here.
Having said that, one thing that remains unchanged in 2021 is our commitment to bringing these and many other important developments to your attention.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Schweizerische Radio- und Fernsehgesellschaft and publisuisse SA v. Switzerland
In a case about a TV commercial in support of animal protection, the European Court of Human Rights (ECtHR) accepted that broadcasters can be required to provide an outlet for critical opinions, even if the message is presented in a provocative manner. The ECtHR found that the obligation imposed on a nationwide public service broadcaster and on an advertising sales company to run a disputed commercial did not amount to a disproportionate interference with their right to freedom of expression as protected by Article 10 of the European Convention on Human Rights (ECHR). The two applicants in this...
Changes in Eurimages' regulations
In parallel to the newly approved governance regulation (see IRIS 2020-9/5), Eurimages' Board of Management has introduced several changes to its regulations for the support of co-productions, which came into force with the new year The support granted under the Council of Europe's film fund scheme for Support for Co-Production will now take the form of non-refundable grants when the amount received by the recipient project is under EUR 150 000. In the case of higher amounts, the grants will continue to take the form of soft loans, repayable on the basis of the revenues generated by...
European Court of Human Rights: Tölle v. Croatia
The European Court of Human Rights (ECtHR) delivered an interesting judgment in the case of Tölle v. Croatia regarding insulting allegations of domestic violence. In a newspaper article a father accused an association of being responsible for his child’s abduction by its mother. The president of this association, which provides support for women who are victims of violence, replied in a radio interview that her organisation was not involved in his daughter’s abduction and that the man had violently abused his wife - that was also the reason why mother and daughter had fled the...
EU: European Commission
European Democracy Action Plan
On 3 December 2020, the European Commission presented a European Democracy Action Plan (EDAP), which aims at empowering citizens and building more resilient democracies across the European Union. The EDAP is one of the major initiatives of the Commission's Work Programme for 2020, as announced in the Political Guidelines of President von der Leyen. The Commission expects that the EDAP, taken together with the new European rule of law mechanism, the new Strategy to strengthen the application of the Charter of Fundamental Rights, the Media and Audiovisual Action Plan as well as the package of...
EU: European Commission
European Media and Audiovisual Action Plan
On 3 December 2020, the Commission adopted an Action Plan to support the recovery and transformation of the media and audiovisual sector. The Action Plan focuses on three areas of activity and 10 concrete actions, with the overall aim of helping the media sector recover from the crisis by facilitating and broadening access to financial support, transforming by stimulating investments to embrace the twin digital and green transitions while ensuring the sector's future resilience, and empowering European citizens and companies. The three areas of activity are the following: Recover:...
EU: European Commission
Proposal for a Regulation on a Single Market For Digital Services (Digital Services Act)
On 15 December 2020, the European Commission published the much-anticipated Proposal for a Regulation on a Single Market For Digital Services (Digital Services Act, DSA). The proposed DSA introduces a harmonised set of new rules for digital services, including social media, online market places, and other online platforms that operate in the European Union. It builds on the Commission’s 2018 Recommendation on measures to effectively tackle illegal content online (see IRIS 2018-4/9). As the Explanatory Memorandum states, the proposed DSA "seeks to ensure...
EU: European Commission
Proposal for a Regulation on contestable and fair markets in the digital sector (Digital Markets Act)
On 15 December 2020, the European Commission published the eagerly-awaited Proposal for a Regulation on contestable and fair markets in the digital sector (Digital Markets Act) (DMA). The DMA builds upon the Platform-to-Business Regulation 2019 (see IRIS 2019-4/7), and its purpose is to target very large online platforms which act as gatekeepers between business users and end users, and which have a major impact and substantial control on the access to certain digital markets. As such, the DMA is designed to lay down harmonised rules across the European Union to ensure contestable and fair markets...
[BG] Local media law harmonised with the Audiovisual Media Services Directive
On 22 December 2020, a new Act for amendment and supplement to Закон за радиото и телевизията (the Radio and Television Act - RTA) was promulgated in Държавен вестник (State Gazette) and entered into force on the same day. By way of this Act, Bulgaria has transposed Directive (EU) 2018/1808 (AVMSD/Directive) shortly after the infringement procedure opened by the Commission against Bulgaria and other countries. Video-sharing platform services One of the main novelties concerns the regulation of video-sharing platform services and providers within the meaning of the AVMSD. From now on, video-sharing...
[DE] Bundesländer demand revision of youth protection bill
At its meeting on 27 November 2020, the Bundesrat (Federal Council), through which the German Länder participate in federal legislation and matters relating to the European Union, criticised the federal government’s bill amending the Jugendschutzgesetz (Youth Protection Act) on the grounds that it had failed to achieve its purpose of creating a convergent and coherent system for protecting young people in the media. In its statement concerning the bill, it mainly addressed questions relating to legal competence and substantive issues, and called for a fundamental revision of the document. The...
[DE] Constitutional Court denies public service broadcasters emergency legal protection in dispute over licence fee increase
In a decision issued on 22 December 2020 in the dispute over a proposed increase in the broadcasting licence fee used to fund public service broadcasting in Germany, the Bundesverfassungsgericht (Federal Constitutional Court – BVerfG) rejected urgent applications submitted by the broadcasters forming the ARD, ZDF and Deutschlandradio contesting the block that one of the German Bundesländer had placed on the proposed increase. The broadcasters therefore failed in their attempt to ensure that the increase took effect on 1 January 2021 despite opposition to it, which was partly political...
[DE] Federal Supreme Court determines user information to be provided by YouTube
In a decision (I ZR 153/17) of 10 December 2020, the Bundesgerichtshof (Federal Supreme Court – BGH), Germany’s highest ordinary court, ruled that the information that must be disclosed concerning a user who has illegally uploaded copyright-protected content to a video-sharing platform does not include their e-mail address, telephone number or IP address. The court therefore followed the preliminary ruling of the Court of Justice of the European Union (CJEU) of 9 July 2020 (C-264/19). The dispute concerned an action brought by a film distributor against the YouTube Internet platform....
[DE] German regulators responsible for Amazon Prime Video post-Brexit
After the end of the Brexit transition period, Amazon’s Prime Video on-demand service within the European Union will fall under the jurisdiction of German regulators, and more specifically the Munich-based Bayerische Landeszentrale für neue Medien (Bavarian new media authority – BLM). The BLM and Amazon recently announced that, following joint discussions, Amazon had met the necessary conditions for its service to come under German jurisdiction, in accordance with the relevant provisions of the Audiovisual Media Services Directive (AVMSD). Under Article 2 of the AVMSD, which...
[DE] KJM approves auXenticate age verification system
At the end of 2020, the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) approved the auXenticate age verification system in accordance with the provisions of the Jugendmedienschutz-Staatsvertrag (State Treaty on the Protection of Minors in the Media - JMStV) of the German Länder. The KJM, as an organ of Germany’s Landesmedienanstalten (state media authorities), is responsible for monitoring compliance with the provisions of the JMStV applicable to broadcasters and telemedia providers. This is necessary to ensure a common...
[DE] State media authority initiates proceedings against Google for possible breach of new anti-discrimination rules in state media treaty
On 17 December 2020, the Medienanstalt Hamburg/Schleswig-Holstein (Hamburg/Schleswig-Holstein media authority – MA HSH) – one of Germany’s 14 media regulators – initiated media law proceedings against Google Ireland Ltd. (Dublin) regarding its compliance with the new anti-discrimination rules that apply to media intermediaries under the Medienstaatsvertrag (State Media Treaty – MStV), which recently entered into force. The proceedings will examine cooperation between Google and the German Federal Ministry of Health which led to content from the ministry’s Internet...
[FR] Adoption of ordinance transposing AVMS Directive
Law No. 2020-1508 of 3 December 2020 authorised the French Government to adopt an ordinance transposing Directive (EU) 2018/1808, known as the Audiovisual Media Services Directive (AVMSD), after the wide-ranging bill on audiovisual communication and cultural sovereignty in the digital age was abandoned because of the health crisis. Without further ado, the ordinance of 21 December 2020 was adopted, amending the Freedom of Communication Act of 30 September 1986, the Cinema and Animated Images Code and the system of film release windows. The new legislation has two objectives: to protect the sustainability...
[FR] Conseil d'Etat rules that cinema closures did not constitute a manifestly illegal infringement of the freedom of expression due to the high virus transmission rate
Several dozen artists, theatres and representatives of the live entertainment and cinema industries asked the Conseil d’État judge responsible for urgent applications on matters concerning fundamental freedoms to suspend the closure of cinemas, theatres and performance venues ordered by the French Government since 29 October 2020 on account of the COVID-19 pandemic. On 10 December 2020, the Prime Minister announced that these venues, as well as museums, would remain closed for at least three weeks after the end of the lockdown, which was set for 15 December 2020. As the plaintiffs...
[FR] Court of Cassation confirms rejection of request to delay release of film Grâce à Dieu
A judgment issued on 6 January 2021 by the 1st civil chamber of the Court of Cassation put an end to the dispute between the production company responsible for the film Grâce à Dieu (By the Grace of God) and the main character portrayed in the film, Father Preynat, who was indicted in 2016 on suspicion of sexually abusing minors between 1986 and 1991 while he was a priest in the diocese of Lyons. The film tells the story, in a fictional format, of three of the priest’s alleged victims. In January 2019, the priest lodged an application for emergency proceedings, demanding that...
[FR] Fight against online hate speech addressed again in bill “strengthening respect for the principles of the Republic”
The torrent of anti-Semitic tweets targeting the Miss France runner-up on the evening of the beauty pageant on 20 December 2020 once again brought into sharp focus the need to strengthen the tools available to combat online hate speech in France. The law to combat hate speech on the Internet, known as the “Avia law”, of 24 June 2020, which required social networks to remove manifestly illegal hate speech within 24 hours (or one hour in some cases), was almost entirely rejected by the Constitutional Council. One of the few provisions to escape criticism concerned the creation of a “parquet...
[FR] Creation of fund to compensate for interruption, delay or abandonment of filming due to COVID-19 pandemic
As the COVID-19 pandemic enters a new phase, with vaccinations becoming available and new mutations of the virus being discovered, the French Government has continued to support the audiovisual sector, which has suffered long-term harm because of the health crisis. In a decree published on 30 December 2020, a special support fund was created for certain audiovisual production companies whose filming on French soil was interrupted, delayed or abandoned when one or more indispensable individuals, such as production team members, were unable to work due to the COVID-19 virus. This one-off fund is...
[GB] A new change is introduced to the Code of Practice for British newspapers, magazines and news websites
The Editors' Code of Practice, under which the majority of Britain’s newspaper, magazine and news website journalists operate, was reviewed in 2020 and changes to it became effective from 1 January 2021. The Code is described by the Editors’ Code of Practice Committee (which draws up the Code’s provisions) as the ‘cornerstone’ of the UK press self-regulatory system. Its rules set standards that the industry members who voluntarily subscribe to it have agreed to maintain. Editors and publishers can be held to account via the Independent Press Standards Organisation...
[GB] Facebook provides Undertakings to the Competition and Markets Authority to improve transparency of incentivised content on Instagram
On 16 October 2020, the Competition and Markets Authority (CMA) published undertakings dated 1 October 2020 given by Facebook Ireland Ltd, which operates Instagram in the United Kingdom, committing to tackling hidden advertising on the photo- and video-sharing platform. The undertakings were issued pursuant to section 219 (4) of the Enterprise Act 2002. The CMA had been investigating hidden advertising on Instagram concerning too many social media influencers posting content about businesses without clarifying whether they had been paid or incentivised to do so, and whether Facebook was adequately addressing...
[GB] Parliament investigates the economics of music streaming
Lockdowns and strict social distancing measures implemented to curb the spread of coronavirus (COVID-19) meant that 2020 was a difficult year for Europe's live music and events industry. Thankfully, many artists were able to create studio-quality recordings from their residences and upload them to the ever-growing number of online music and audiovisual platforms. As such, some singers, composers and other musicians were able to be as productive as ever. Venues may be closed, and tours may be cancelled, but - and perhaps accordingly - the music streaming industry enjoyed a phenomenal year...
[GB] UK radio station sanctioned by Ofcom over coronavirus conspiracy theories
On 7 December 2020, Ofcom, the UK’s communications regulator, found that The Family Programme, a live radio broadcast, featured potentially harmful statements about the COVID-19 pandemic without adequate protection for listeners. The regulator currently prioritises cases linked to the coronavirus where programmes may have helped spread misinformation or included misleading material about the illness and public policy in relation to it. The Family Programme is broadcast every Sunday on New Style Radio 98.7 FM, which is a community radio station providing a service for Afro-Caribbean communities...
[IT] Lazio Regional Administrative Court implements the Court of Justice judgment in the Vivendi case
On 16 December 2020, the Lazio Regional Administrative Court (TAR Lazio - Roma) delivered Judgment No. 13958, which followed up on the landmark decision of the Court of Justice of the European Union dated 3 September 2020 in Case C-719/18. The case originated from the disputed legal status of Vivendi, a French company holding at the same time a 23.9% stake in Telecom Italia (the leading Italian telecommunications company) and 28.8% of the share capital, as well as 29.94% of the voting rights in shareholders’ meetings of Mediaset (the leading Italian private broadcaster). Through Resolution...
[LT] New law regulating the national broadcaster enters into force
On 1 January 2021, a new version of the Republic of Lithuania Law on the National Radio and Television (Lietuvos Respublikos Lietuvos nacionalinio radijo ir televizijos įstatymas) that regulates the status, rights, obligations and activities of the Lithuanian public broadcaster – VšĮ Lietuvos nacionalinis radijas ir televizija (LRT) – came into force. One of the novelties introduced by the amendments is that the law establishes not only the requirements for LRT programmes, but also the requirements for the contents of the LRT website. According to the amended law, people...
[MT] Legal challenge on the existence of broadcasting stations owned by political parties
An independent media house in Malta is calling on the Constitutional Court to decree that a provision in the Broadcasting Act relating to impartiality is incongruent with the Constitution. LovinMalta, a news portal which has become very popular in Malta, particularly with the younger generation, is challenging a long-established practice that allows political parties to own broadcasting stations. This legal challenge could change the Maltese media landscape, which has for the last 30 years been dominated by the two main political parties, as they each own and operate a radio and television...
[NL] Court fines journalist for criminal offence during newsgathering activities
On 31 December 2020, the District Court of Gelderland delivered a notable judgment on the controversial issue of the criminal liability of journalists who commit (minor) offences as part of their newsgathering activities, and on which the European Court of Human Rights has delivered a series of judgments (see, for example, IRIS 2016-8/1 and IRIS 2016-9/1). In its judgment, the district court convicted a Dutch journalist of purchasing illegal fireworks as part of a news report, and ruled that the right to newsgathering by the media does not mean that journalists do not have to comply with the provisions...
[NL] Ministry ordered to reassess large parts of freedom of information request from broadcaster
On 30 December 2020, an important judgment on freedom of information (FOI) requests by the media, under the Public Access to Government Information Act (Wet openbaarheid van bestuur), was delivered by the District Court of Midden-Nederland (Rechtbank Midden-Nederland). In allowing a broadcaster’s appeal over a ministry’s refusal to release certain documents relating to a tragic train accident which was subject to widespread public debate, the court held that a large number of documents were “incorrectly refused”, “improperly redacted”, and that the decision was...
[NO] More independence and predictability in media support cases
On 1 January 2021, the act relating to financial support for the media, mediestøtteloven (Media Support Act), entered into force. Until the entry into force of this act, the legal basis for grant schemes was decisions made by the Storting (Norwegian Parliament) pursuant to the Fiscal Budget. The overall purpose of the act is to promote the diversity of editor-controlled journalistic media throughout Norway. The act stipulates the purpose behind five grant schemes for direct media support. The act will contribute to establishing predictable financial frameworks for media activity....
[RO] Instructions for the vaccination campaign coverage
The Consiliul Naţional al Audiovizualului (National Audiovisual Council, CNA) adopted Instruction No. 5 of 22 December 2020 on the progress of the information and communication campaign on the vaccination against COVID-19 in Romania in the audiovisual media (see IRIS 2020-4/6, IRIS 2020-5/30, IRIS 2020-6/11, IRIS 2020-7/22, IRIS 2020-7/12, and IRIS 2020-8/20). According to Article 1 (1), during the information and communication campaign regarding the vaccination against COVID-19, audiovisual media service providers have the obligation to ensure that information and debate programmes addressing...
[RU] Fines for Internet companies significantly increased
A new Article 13.41 was added to the Code of the Russian Federation on Administrative Offences by the Federal Statute adopted by the State Duma on 23 December and signed by the President on 30 December 2020. Under the new law, inaction by hosting providers and website owners (including foreign ones) with regard to the requirements to block access to information banned in Russia or to remove information recognised as illegal in Russia under the Federal Statute “On Information, Information Technologies and on the Protection of Information” (see Iris Extra 2015) shall lead to significant...
[RU] Increased penalties for the dissemination of information online
A new edition of Article 128-1 of the Russian Federation’s Criminal Code was adopted by the State Duma on 23 December and signed by the President on 30 December 2020. It introduces harsher penalties for slander, or the dissemination of intentionally false information that defames a person, “or a number of persons that are not individually defined”. It specifies that slander disseminated online or in the mass media shall now be punished with a fine of up to one million Russian rubles (RUB) - about EUR 11 000 - or up to two years' imprisonment; slander by those holding a management...
[RU] New rules on social networks: Blocking permitted
A new set of amendments that expands the scope of the Russian Federation’s Federal Statute “On Information, Information Technologies and on the Protection of Information” (see Iris Extra 2015) to include social networks was adopted by the State Duma on 23 December and signed by the President on 30 December 2020. It entered into force on 1 February 2021. The amendments largely present a new 16-page Article 10-6 to the Federal Statute “On Information, Information Technologies and on the Protection of Information” that regulates several important aspects of activities...
[RU] Rules established for journalists at public protests
A set of amendments that regulates, in particular, the behaviour of journalists covering public protests was entered in the Russian Federation’s Federal Statute “On Meetings, Rallies, Marches and Pickets” (No. 54-FZ of 19 June 2004) by the State Duma on 23 December and signed by the President on 30 December 2020. The amendments to Article 6 of the Federal Statute expand on the requirement for journalists covering mass events to put on markings that distinguish them as members of the press by saying that such markings shall be designed and approved by Roskomnadzor, the Russian...
[RU] Scope of “Foreign Agents” Law expanded as first journalists labelled as “foreign agents”
A new set of amendments further expanding the scope of the Russian Federation’s Federal Statute of 2012 entitled “On amendments to certain legislative acts of the Russian Federation with regard to regulating the activities of non-commercial organisations acting as foreign agents”, commonly known as the “Foreign Agents” Statute (see IRIS Extra 2020), was adopted by the State Duma on 23 December and signed by the President on 30 December 2020. It entered into force on the same day. It now allows for this label to be applied to ordinary citizens, as well as to public...