IRIS newsletter 2021-3
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)
From 1 January 2021, the relations between the United Kingdom and the European Union are governed by a Trade and Cooperation Agreement (TCA), as a result of a deal that was reached in the very last days of 2020. Putting in place this overarching structure has required extensive legislative modification on the UK side. As the most recent example of this, in late January 2021, the UK Government published its draft Audiovisual Media Services (Amendment) Regulations 2021, which, when enacted, will update certain technical elements of the existing framework established by the European Union’s Audiovisual Media Services Directive (EU) 2018/1808 and subsequent laws. Needless to say, the implications of the TCA for the audiovisual sector cannot be addressed in one or even many newsletter articles. That is why the European Audiovisual Observatory has produced a note that aims to present an initial overview of the main legal changes that the new relationship between the United Kingdom and the European Union will introduce to their respective audiovisual sectors. You can download it here.
Beyond Brexit, the European Audiovisual Observatory has recently embarked on a tour of the proposed Digital Services Act Package. We started with an online conference that took place on 11 February 2021 (you can watch it here), and we announced on that occasion a series of webinars focusing on specific topics related to this regulatory initiative. The first of them will deal with content moderation in social media and will take place on Thursday, 18 March from 16.00 to 17.15 CET. You can register here.
With regard to the most recent legal developments in other areas, this newsletter comes loaded with a plethora of interesting issues: the transposition of the AVMSD in Lithuania, including the Lithuanian Radio and Television Commission's new guidelines for the qualification of video-on-demand services; the German Government’s launch of its new ‘"Kino I" project to support cinemas during the pandemic; the European Commission's extension of the COVID-19 Disinformation Monitoring Programme, together with the publication of a set of reports on measures taken by the Code of Practice signatories to tackle COVID-19 disinformation; a very interesting judgment of the European Court of Human Rights concerning the rights and duties and responsibilities of journalists and online media when publishing illegal recordings containing private and intimate information; and... much more!
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Société Éditrice de Mediapart and others v. France
The European Court of Human Rights (ECtHR) has delivered a judgment on the rights and duties and responsibilities of journalists and online media when publishing illegal recordings containing private and intimate information. The case concerns the judicial orders requiring the news website Mediapart to remove transcripts and tapes of conversations that had been illegally recorded at the home of Ms Bettencourt, the principal shareholder of the L’Oréal group. The ECtHR found the exposure of the illegal recordings to be of such a serious nature that the judicial orders to remove them...
European Court of Human Rights: Dickinson v. Turkey
In a case about a satirical collage insulting the Turkish Prime Minister, the European Court of Human Rights (ECtHR) found that the criminal proceedings against the author of the collage had violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The applicant in this case was Michael Dickinson, a British national who had been living in Turkey for a long time; he was teaching in two universities in Istanbul and was also active as a collage artist. On two occasions in 2006 Dickinson took part in events during which he exhibited a collage...
CJEU rules on regional advertising ban on national television in Germany
On 3 February 2021, the Court of Justice of the European Union (CJEU) ruled, in Case C-555/19 (Fussl Modestraße Mayr), that the provisions of the German Rundfunkstaatsvertrag (State Broadcasting Treaty – RStV), which was recently replaced by the Medienstaatsvertrag (State Media Treaty – MStV), prohibiting television broadcasters from showing advertising at regional level in programmes broadcast throughout the country could be contrary to EU law, in particular the freedom to provide services. The court cast particular doubt on the proportionality of Article 7(11) RStV (now Article...
CJEU: Cash payments for licence fee not ruled out
In a judgment (Case nos. C-422/19 and C-423/19) of 26 January 2021, the Court of Justice of the European Union (CJEU) ruled that payment in cash for the German radio and television licence fee could be refused on the grounds that the administrative cost of accepting cash payments was disproportionate. The case concerned two German citizens from Hessen who had offered to pay Hessischer Rundfunk (HR) for their radio and television licences in cash. HR had refused their offer with reference to a rule that it had adopted preventing cash payments for the licence. The two German citizens had then...
EU: European Commission
Commission extends COVID-19 Disinformation Monitoring Programme and publishes Code of Practice on Disinformation reports
On 28 January 2021, the European Commission announced an important extension of the COVID-19 Disinformation Monitoring Programme, which is a transparency mechanism designed to ensure public accountability for the measures taken by signatories to the EU Code of Practice on Disinformation in specifically tackling COVID-19 disinformation (see IRIS 2020-6/9; IRIS 2019-6/4, and IRIS 2019-1/7). The Commission stated that the Programme would be extended to June 2021, with a “special focus” on vaccine disinformation and vaccine-related misinformation. Notably, the Commission also published...
[AZ] Media reforms promoted
On 12 January 2021, the President of the Republic of Azerbaijan signed a decree “On deepening media reform in the Republic of Azerbaijan”. It lists the record of the country in “removing artificial obstacles to freedom of expression and freedom of information” and abolishing censorship since the 1990s. Modern technologies, though, call for reforms to be promoted in the country for “professional services on informing the public." The decree establishes the Media Development Agency of the President of the Republic of Azerbaijan to replace the Fund of State...
[BG] Bulgarian competition watchdog approves major acquisitions in the local media, telecom and newspaper market
By adopting Decision No. АКТ-37-14.01.2021 of Комисия за защита на конкуренцията (the Commission for Protection of Competition, CPC), the local competition regulator has unconditionally approved the acquisition of the Bulgarian media company Нова Броудкастинг Груп (Nova Broadcasting Group) and its subsidiaries by the Dutch-based telecommunications and media company United Group. Nova Broadcasting Group is one of the leading media service providers on the market. It owns 10 TV channels, including one of the national TV channels – Нова телевизия (Nova TV) –, as well as four radio...
[DE] Advertising breaches by national broadcasters
In a press release issued on 21 January 2021, the Direktorenkonferenz der Medienanstalten (Conference of Regional Media Authority Directors – DLM) announced that, in 2020, the Kommission für Zulassung und Aufsicht (Commission on Licensing and Supervision – ZAK) had investigated a total of 22 infringements of the programming rules contained in the Rundfunkstaatsvertrag (State Broadcasting Treaty – RStV), which has now been replaced by the Medienstaatsvertrag (State Media Treaty – MStV), by various national television channels. The ZAK is responsible for supervising...
[DE] Federal Supreme Court rules on use of celebrity images as clickbait
In judgments issued on 21 January 2021, the first civil chamber of the Bundesgerichtshof (Federal Supreme Court – BGH) ruled on two cases (nos. I ZR 120/19 and I ZR 207/19) concerning the use of images of celebrities for commercial purposes and the related intrusion on image rights. In the first case (no. I ZR 120/19), the image of a celebrity had been used in an editorial article that had no connection with the person depicted. The dispute had arisen after a press company published a Facebook post containing a link to an article about cancer and four images of famous television presenters,...
[DE] Federal government adopts new draft Film Support Act and launches "Kino I" initiative
On 7 January 2021, the federal government announced the launch of its new "Kino I" project as part of the "Neustart Kultur" financial aid programme for 2021, which is designed to further stabilise the economic situation of cinemas during the pandemic. The "Kino I" campaign forms part of the federal government’s "Neustart Kultur" programme that was launched in 2020. "Neustart Kultur" is a government-led financial aid programme designed to safeguard the film industry as a cultural asset, which is in particular need of support following the...
[ES] National Commission for Markets and Competition sanctions Atresmedia and Mediaset
The national regulator CNMC (National Commission for Markets and Competition) sanctioned the companies Atresmedia and Mediaset for violations of the General Act on Audiovisual Communication (Ley General de Comunicación Audiovisual, LGCA). The former has been sanctioned for covert advertising and the latter for non-anticipated changes in its scheduled programming. With regard to the Atresmedia sanction, the applicable legislation defines covert advertising in Article 2.32 of LGCA as “the verbal or visual, direct or indirect, presentation of goods, services, name, brand, or activities...
[FR] Amendment to France TV terms of reference to include Culturebox, a free temporary cultural channel
With the COVID-19 pandemic raging and theatres still a long way from reopening, Culturebox, a temporary channel created by France Télévisions, was launched on DTT channel 19, france.tv, set-top boxes and apps on 1 February. The decree of 30 January 2021 amended the terms of reference of the national broadcaster France Télévisions in accordance with Article 48 of Act No. 86-1067 of 30 September 1986. The channel’s purpose is “to offer cultural programming, especially live entertainment, while theatres are closed following the cancellation of numerous cultural...
[FR] CSPLA, Hadopi and CNC recommendations on the transposition of Article 17 of the Copyright Directive
As stated in the law of 3 December 2020, the French Government is preparing to adopt an ordinance transposing Copyright Directive 2019/790 into French law by the summer. In particular, the new rules applicable to online platforms under the controversial Article 17 of the directive will need to be transposed. This article stipulates that, in future, content-sharing platforms will be liable for the unauthorised communication of copyright-protected content unless they conclude remuneration agreements with the rightsholder or make best efforts to block access to such content or remove it from their...
[FR] Google signs agreement on remuneration of neighbouring rights for publications containing "political and general information"
In April 2020, the French competition authority ordered Google to negotiate licences with publishers "in good faith", allowing it to post publications or excerpts in accordance with the Act of 24 July 2019. This was confirmed by the Paris appeal court on 8 October 2020. On 21 January 2021, following the signature of an initial series of individual agreements between Google and various publishers (including Le Monde, L'Obs, Le Figaro, Libération and L’Express) in November, the Alliance de la presse d’information générale (French general press alliance...
[GB] An overview of the current inquiries being undertaken by the UK Parliament’s Digital, Culture, Media and Sport Committee
The UK Parliament’s Digital, Culture, Media and Sport Committee (DCMS) is undertaking five enquiries. One enquiry concerns the economic impact music streaming is having on artists, record labels and the sustainability of the wider music industry, as previously reported in IRIS 2021-2/22. DCMS is also enquiring into Broadband, including the introduction of 5G; it is examining how realistic the government’s pledge to ensure that every home and business in the United Kingdom has gigabit-capable broadband by 2025 is, and what is needed to achieve it. The DCMS Committee will consider...
[GB] Government publishes draft of post-Brexit Audiovisual Media Services (Amendment) Regulations 2021
In late January 2021, the Government of the United Kingdom (UK) published its draft Audiovisual Media Services (Amendment) Regulations 2021 (referred to as the “2021 AV Regulations” for ease in this note). The objective of these new 2021 AV Regulations is to address the deficiencies that were not earlier addressed during the run-up to the UK's full withdrawal from the European Union. When enacted, the UK’s 2021 AV Regulations will update certain technical elements of the existing framework established by the European Union’s Audiovisual Media Services Directive (the...
[GB] Ofcom Revocation of Star China Media Limited Broadcasting Licence
The Broadcasting and Communications Acts provide that entities responsible for broadcasting should have the appropriate licence; failure to have such a licence when required is a criminal offence (s 13(1) Broadcasting Act 1990). Conversely, only the persons who have "general control over which programmes and other services are comprised in the service" are the persons deemed to be providing the service for the purposes of the Act. A licensee cannot sub-let its licence, nor can it be the puppet of another body. Ofcom has provided guidance as to what this means in practice. There...
[GB] Ryanair “jab and go” TV ad banned for encouraging irresponsible behaviour
On 3 February 2021, the Advertising Standards Authority (ASA), the United Kingdom’s regulator of advertising across all media, banned Ryanair’s “jab and go” TV campaign on the grounds that it encouraged the public to act irresponsibly once they had received a coronavirus vaccination shot. The ban came just days after the Ryanair chief executive, Michael O’Leary, stated in a BBC Radio 4 interview that he expected a revival of European beach holidays in the summer of 2021. The two controversial television advertisements were launched on Boxing Day and were seen between...
[IT] Court of Rome tackles the first case of online disinformation related to the COVID-19 emergency
By way of an order issued on 27 November 2020 in the context of proceedings brought as a matter of urgency, the Court of Rome had the chance to tackle the first leading case in Italy concerning online disinformation, a very well-debated subject, most notably in the age of the pandemic. The decision of the court arose out of the claim made by the founder of a web channel named InfOrmalTV, allegedly created to disseminate independent information, who complained that YouTube had removed from his portal some COVID-19-related videos because of multiple violations of the terms and conditions of the...
[IT] The Court of Rome sentences Dailymotion and Veoh to refund Mediaset for copyright infringement
On 21 January 2021, in the wake of the consolidated national and EU jurisprudence, the Civil Court of Rome adopted two important judgments aimed at protecting publishers from several forms of online piracy. The first statement concerns the French portal Dailymotion (controlled by Vivendi), which was ordered to pay Mediaset over EUR 22 million because of the illegal publishing of approximately 15 000 videos, amounting to a total of 30 000 minutes of viewing, taken from Mediaset contents. In addition, it was sentenced to pay a penalty of EUR 1 000 per day for any further illegal dissemination...
[LT] Lithuania transposes new Audiovisual Media Services Directive
With a few months' delay, on 14 January 2021, the Lithuanian Parliament (Seimas) transposed Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities into the Law on Provision of Information to the Public of the Republic of Lithuania (Lietuvos Respublikos visuomenės informavimo įstatymas -...
[LT] Lithuanian Radio and Television Commission adopts new guidelines for the qualification of video-on-demand services
On implementing the provisions of the Law on Provision of Information to the Public of the Republic of Lithuania (Lietuvos Respublikos visuomenės informavimo įstatymas - Media Law), which transposes the 2018/1808 Audiovisual Media Services Directive into the Law on Provision of Information to the Public of the Republic of Lithuania, on 1 February 2021, the Radio and Television Commission (Lietuvos radijo ir televizijos komisija) announced Guidelines for the qualification of on-demand audiovisual media services (the Guidelines). First, the Radio and Television Commission notes that the Guidelines...
[MD] Audiovisual Code amended
On 16 December 2020, the Parliament of the Republic of Moldova adopted at the final reading several amendments to the 2018 Code of the Republic of Moldova on Audiovisual Media Services. The amendments were introduced on 23 November 2020. They were signed by the outgoing President of Moldova Igor Dodon on 18 December and entered into force on 22 December 2020. The amendments, in particular, rephrase paragraph 4 of the Code’s Article 17 (see IRIS 2019-3:1/24). It now says: “In order to protect the national audiovisual space and ensure national security, providers and distributors of...
[NL] Vlogger ordered to pay damages over YouTube video published without consent
On 9 December 2020, the District Court of Amsterdam (Rechtbank Amsterdam) delivered an important judgment on the liability of vloggers and social media influencers for audiovisual content published without consent on YouTube and Instagram which violates the right to private life. The judgment contains important principles on the filming of private individuals in public areas without consent, and the subsequent publication of such videos on large video-sharing platforms such as YouTube. The case arose in May 2018, when the defendant, a well-known Dutch musician and vlogger,...
[NL] Judgment on mayor’s Twitter post linking the political party Forum voor Democratie with fascism
On 15 January 2021, the District Court of Rotterdam (Rechtbank Rotterdam) delivered an important judgment on the protection of political debate on social media platforms, especially concerning harsh criticism of political parties during election periods (see also IRIS 2020-5/16). Notably, the court ruled that a Twitter post by the mayor of a small town linking the well-known political party Forum for Democratie to fascism and Nazism was not unlawful. The case arose right after the Dutch regional elections in 2019 (Provinciale verkiezingen), when the mayor posted a message in...