IRIS newsletter 2021-4
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 • Linda Byrne • Isabella Bolognese • Glenn Ford • Rebecca Sevoz
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2021 European Audiovisual Observatory, Strasbourg (France)
To open or not to open cultural venues: that seems to be the question in these troubled COVID-19 days. In Europe, there is a different answer for this question depending on the country we are talking about, and even in those countries that allow cinemas and theatres to open their doors to the public, the applicable rules diverge. With regard to those countries that have chosen to keep venues shut, courts of law have so far upheld this governmental strategy. In this newsletter we report on two instances of this: In Germany, the Bavarian Constitutional Court refused to suspend individual provisions of the Twelfth Bavarian Infection Protection Measures Ordinance by temporary injunction. In France, the Conseil d’Etat ruled that keeping all cinemas, theatres and performance venues closed to the public was necessary, appropriate and proportionate to the aim of protecting public health in a moment when the spread of the virus remained at a particularly high level in the population. For the European audiovisual sector, and for all cinemagoers, the old Latin legal maxim dura lex, sed lex (the law is hard, but it is the law) will become sadly understandable through these decisions...
While hoping that cinemas will open everywhere as soon as possible, we invite you to delve into the electronic pages of the present newsletter, which are as usual full of interesting articles.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Budinova and Chaprazov v. Bulgaria and Behar and Gutman v. Bulgaria
In the two judgments of 16 February 2021 the European Court of Human Rights (ECtHR) has highlighted the positive obligations of the member states to combat hate speech (see also Beizaras and Levickas v. Lithuania, IRIS 2020-3/21). The ECtHR found that incitement to hatred, violence and discrimination cannot rely on the protection of freedom of expression when the offensive expressions clearly harm the privacy rights of the victims of hate speech, in casu Roma and Jews. The member states have a duty under Article 8 in combination with Article 14 of the European Convention on Human Rights (ECHR)...
European Court of Human Rights: Ramazan Demir v. Turkey
The European Court of Human Rights (ECtHR) delivered a judgment guaranteeing Internet access from prison to certain websites with legal information. In Ramazan Demir v. Turkey, the ECtHR found that the refusal by the Turkish authorities to allow a prisoner to consult Internet sites on legal matters, including the website of the European Court, violated the prisoner’s right to receive information as guaranteed under Article 10 of the European Convention on Human Rights (ECHR). The case concerns the prison authorities’ refusal to grant a request for access to certain Internet sites,...
EU: European Parliament
European Parliament: Resolution on closing the digital gender gap, including in media and audiovisual sectors
On 21 January 2021, the European Parliament adopted an important "Resolution on closing the digital gender gap: women’s participation in the digital economy", which includes notable provisions in relation to the European media and audiovisual sectors. This follows the European Commission’s Action Plan to support the recovery and transformation of the media and audiovisual sector, which was adopted in December 2020. The Action Plan included a specific action point on launching a communication campaign to “foster diversity not only in front of but also behind the camera”,...
[DE] Discussion draft on improving media accessibility and implementing the European Accessibility Act (EAA)
Late last year, the German Länder published a discussion draft on strengthening media accessibility, which is designed to expand the related provisions of the Medienstaatsvertrag (state media treaty – MStV). The public consultation process ended on 8 January 2021. Last year’s MStV reforms included measures to improve media accessibility. However, when the MStV was adopted, the Länder stated in a joint declaration that they intended to develop these rules further in the near future. This is reflected in the new discussion draft which, by extending media accessibility, aims...
[DE] Federal Cabinet adopts draft copyright reform act
On 12 February 2021, the German Bundestag (lower house of parliament) adopted a draft act bringing German copyright law into line with the requirements of the Digital Single Market. The package, amending both the Urheberrechtsgesetz (Copyright Act – UrhG) and the Verwertungsgesellschaftengesetz (Collecting Societies Act – VGG), as well as introducing a new Urheberrechts-Diensteanbieter-Gesetz (Copyright Service Provider Act – UrhDaG), is primarily designed to implement the Directive (EU) 2019/790 (DSM Directive) and the Directive (EU) 2019/789 (Online SatCab Directive). The...
[DE] KEK approves Amazon streaming service
The Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media – KEK) has no objections to the licensing of a linear television channel that Amazon Digital Germany GmbH plans to launch in Germany under the working title ‘Prime Video Live’. At its 256th meeting, it decided that diversity of opinion would not be harmed if the channel was granted a licence. Amazon Digital Germany GmbH, which is affiliated to Amazon.com, Inc., applied to the Bayerische Landeszentrale für neue Medien (Bavarian new media authority – BLM) for...
[DE] Ratification of 2021 German state gambling treaty continues
The Staatsvertrag zur Neuregulierung des Glücksspielwesens in Deutschland (state treaty on a new system of regulation for gambling in Germany, Glücksspielstaatsvertrag 2021 – GlüStV 2021), which was signed by the heads of government of the German Länder on 29 October 2020, should enter into force on 1 July 2021. However, this is dependent on the treaty being ratified by at least 13 Länder by 30 April 2021 and by Saxony-Anhalt, where the new joint gambling authority of the Länder will be based, from 30 June 2021. The new state gambling treaty contains fundamental...
[DE] State media authorities issue first rules on new state media treaty
The 14 German Landesmedienanstalten (state media authorities) have jointly drafted new rules to implement the provisions of the new Medienstaatsvertrag (state media treaty – MStV). The boards of the individual media regulators are now gradually approving these rules, clearing the way for them to enter into force. The new rules are designed, among other things, to express in practical terms the MStV’s provisions on advertising.The principle being that minor broadcasting services (primarily Internet streams) do not require prior authorisation, and the MStV’s new provisions on media...
[DE] Cinemas to stay closed in Bavaria for now
On 22 March 2021, the Bavarian Constitutional Court refused to suspend individual provisions of the Zwölfte Bayerische Infektionsschutzmaßnahmenverordnung (Twelfth Bavarian Infection Protection Measures Ordinance - 12. BayIfSMV) of 5 March 2021 by interim injunction. The Ordinance issued by the Bavarian State Ministry of Health and Care contains protective measures for preventing the spread of COVID-19 disease. The petitioners had filed an application for a temporary injunction against regulations of the ordinance concerning, among other things, the closure of certain cultural...
[ES] A bullfighter’s performance is not copyrightable
The world of bullfighting in Spain has been subject to controversy again. This time, not due to the opposition of animal’s defense groups, but due to the Supreme Court’s ruling No. 497/2021 of 16 February 2021, which denies a bullfighter’s performance in a bullfight being considered as an original work and artistic creation. Spain is one of the 8 countries in which bullfighting is still protected under its Cultural Heritage Act 18/2013 of 12 November 2013 which, in its preamble, observes the artistic component of bullfighting, which is "an artistic manifestation in itself,...
[ES] Supreme Court finds that the Catalan PSB failed to comply with principles of news neutrality and pluralism during elections
On 22 February 2021, the Spanish Supreme Court had to rule on whether the actions of Corporació Catalana de Mitjans Audiovisuals (the Catalan public-service broadcaster - CCMA) infringed the principles of news neutrality and political pluralism during the election period for the general elections called on 28 April 2019. The CCMA appealed to the Supreme Court against two resolutions issued by the Junta Electoral Central (Central Electoral Board - JEC), which found an infringement of these two principles in the coverage given by the CCMA to a demonstration and the broadcasting of a documentary,...
[FR] CSA orders C8 to obey sponsorship rules
During the broadcast of the programmes “La Grande Darka“ and “Touche pas à mon Poste“ on the C8 television channel on 21 and 23 September 2019 respectively, the company Skyline Airways was mentioned several times and given visual prominence in relation to prize draws in which the prizes included flights organised by the airline. On 20 April 2020, believing this to be a possible violation of the decree of 27 March 1992 defining broadcasters’ obligations in relation to advertising, sponsorship and teleshopping, the Conseil Supérieur de l'Audiovisuel...
[FR] The closure of cinemas, theatres and performance venues is (still) not manifestly illegal
Two months after their previous attempt, various personalities from the cultural sector once again asked the Conseil d’Etat (Council of State) judge responsible for urgent applications to suspend, as a matter of urgency, the closure of cinemas, theatres and performance venues ordered on account of the health crisis. In support of their request, the plaintiffs referred not only to the serious breach of freedom of expression and the freedom to communicate ideas, freedom of artistic creation, freedom of access to cultural works, freedom to do business and freedom of trade and industry,...
[GB] The Daily Mail’s defence against HRH Duchess of Sussex right to privacy claim summarily struck out by the High Court
The Honourable Mr Justice Warby of the High Court of Justice upheld a summary judgment application against Associated Newspapers Limited (ANL), according to which the publisher of the Mail on Sunday newspaper, had misused HRH The Duchess of Sussex (Meghan Markle) private information by publishing a private letter addressed to her father. HRH applied to the court under rules 3.4(2)(a) and 24.2 of the Civil Procedure Rules to have ANL’s defence struck out. Rule 3.4(2(a) allows the court to strike out a defence or part of it “if it appears to the court … that the statement of...
[GR] New rules for the Greek Media Authority
Part A of Law 4779/2021 reinforces the role of the Greek Media Authority (National Council for Radio and Television - NCRTV) as new powers have been given to it. In particular, the NCRTV has, according to the law, the power and the overall responsibility: - to map, license or register and supervise all media service providers established in Greece [Article 3 (6), 33 (1), 34]; - to represent the country, in procedures concerning issues of a) jurisdiction [Article 3 (7)] and b) violation of the provisions of the Directive by media service providers established in other member states targeting...
[GR] The transposition of the AVMSD in Greece
Greece has transposed the Audiovisual Media Services Directive (AVMSD) in part A of Law 4779/2021. In the interest of promoting European works, on-demand media service providers shall ensure at least a 30% share of European works in their catalogues (Article 13, paragraph 1). The law does not describe the concrete means of ensuring the prominence of European works in their catalogues. Financial obligations are imposed on all media service providers established in Greece (Article 8 of Law 3905/2010 (Official Gazette A 219)), but only on non-linear media service providers targeting Greece (Article...
[IT] A new regulation on commercial communications on food products and beverages released by the Italian Advertising Self-Regulatory Body
On 9 February 2021, the Istituto dell'Autodisciplina Pubblicitaria (Italian Advertising Self-Regulatory Body - IAP) passed a new regulation to discipline commercial communications concerning food products and beverages. The approval of this act aims to strengthen the protection of children and ensure healthy eating. The regulation at hand constitutes an attempt to implement some of the provisions of the revised AVMS Directive, that has not yet been transposed by Italy. It largely resorts to a self-regulatory and co-regulatory mechanism, for instance, by suggesting the adoption of codes...
[LT] Radio and Television Commission of Lithuania establishes list of mandatory information about Radio and Television Commission and Public Information Ethics Commission
On 3 February 2021, implementing new changes in the Law on Provision of Information to the Public of the Republic of Lithuania, the Radio and Television Commission of Lithuania (LRTK) has adopted a decision "On the procedure for publishing information on the Radio and Television Commission of Lithuania and the Public Information Ethics Commission” (the Procedure). The Procedure provides that radio and television broadcasters and on-demand audiovisual media service providers must publish information about: the possibility to apply to the LRTK regarding violations of the Law; the...
[LT] Radio and Television Commission of Lithuania further details requirements for broadcasting of advertising
The Radio and Television Commission of Lithuania (LRTK) has implemented new changes of the Law on Provision of Information to the Public of the Republic of Lithuania, which 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. The LRTK has supplemented and changed its former decision on the Requirements for audiovisual commercial communication, broadcasting...
[LT] Radio and Television Commission of Lithuania supplements rules on inspection of economic entities and changes definition of children’s programmes
Implementing new changes of the Law on Provision of Information to the Public of the Republic of Lithuania, the Radio and Television Commission of Lithuania (LRTK) supplemented and changed its former decision on the Approval of the rules of inspection of the activities of economic entities performed by the LRTK. Amendments to the decision introduced two additional grounds allowing LRTK to carry out unscheduled inspections: when it receives a request from other regulatory institutions; and when it receives an anonymous complaint concerning the acts or omissions of a particular economic...
[NL] Judgment on Minister’s refusal to release documents to broadcaster on Flight MH17 disaster
On 11 February 2021, the District Court of Midden-Nederland (Rechtbank Midden-Nederland) delivered a notable judgment on a government ministry’s refusal to release documents to the media relating to the Flight MH17 disaster, following a freedom of information request under the Public Access to Government Information Act (Wet openbaarheid van bestuur) (WOB) (see also IRIS 2021-2/9). The Court held that the release of certain documents could be refused, due to the potential harm caused to “relations of the Netherlands with other states and with international organisations”....
[NL] New Code of Conduct on transparency of online political advertising in the Netherlands
On 9 February 2021, the Minister of the Interior and Kingdom Relations published the Dutch Code of Conduct on transparency of online political advertisements ("the Code"). According to the International Institute for Democracy and Electoral Assistance (International IDEA), the intergovernmental organisation that co-drafted the Code, it is the first national code of conduct on online political advertising in the European Union. The Code is a collaborative effort of various internet platforms (Facebook, Google, Snapchat, and TikTok) and 11 out of 13 political parties (VVD, CDA, D66, GroenLinks,...
[RU] "Foreign agents" fines prescribed and imposed
Following the recent entry into force of its decree that approved the standard text and procedure for publishing the imprint of a media outlet founded by a Russian legal entity and considered to be a “foreign agent” (see IRIS 2021-1/1), Roskomnadzor, the Russian governmental supervisory authority in media and communications (see IRIS 2012-8/36), started to monitor its implementation and filed protocols that allow judges to impose fines for violations. The fines were established by Article 19.34.1 of the Code of Administrative Offences, which entered into force in February 2020...
[UA] Supreme court on Russian broadcasts
At a written hearing on 29 September 2020, the Cassation Administrative Court, a chamber of the Supreme Court of Ukraine, upheld the decision taken in 2019 by the Sixth Appeals Administrative Court, which in turn annulled the decision by the Kyiv District Administrative Court on the merits of the case related to the permissibility of Russian TV rebroadcasts via cable systems in Ukraine (see IRIS 2019-4/31). This administrative case started in 2014. On the eve of this judgment, the Supreme Court of Ukraine had decided that the parties’ written submissions were to be reviewed through a summary...
United States of America
[US] Jack Ryan: The hunt for copyright ownership
In February 2021, a U.S. federal court in the state of Maryland handed down a decision regarding Jack Ryan, one of Hollywood’s most prolific spies. However, after nearly 90 pages of legal analysis and a review of events reaching back to the 1980s, the Judge was unable to determine who owns rights to Jack Ryan as a fictional creation. In declining to dismiss the plaintiff’s claim regarding ownership of the iconic character, the door is left wide open for a jury trial in due course. In the United States, a fictional character described in a larger work, such as a novel or a movie,...