IRIS newsletter 2021-5
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 •
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2021 European Audiovisual Observatory, Strasbourg (France)
Two years ago, in these very same electronic pages, I joyfully wrote (paraphrasing Heinrich Heine): ...in the wonderful month of May flowers bloom, birds sing, and the Festival de Cannes opens its doors to the whole fauna and flora of international cinema. This is, as you know, something we will have to renounce for the second consecutive year. COVID pandemic oblige, this year the festival has been moved to the beginning of July, and (as it reads on the Festival’s website) the event will take place in strict compliance with the government health measures in force in France for the period of the Festival. Let’s keep our fingers crossed!
Talking about cinema(s): in France, where more than 400 feature films are queueing to be projected onto the silver screen, the CNC has adopted an emergency measure in order to make it easier to release new films outside cinema theatres without the need to pay back CNC funding. In parallel to this decision, the French competition authority has clarified the framework and conditions under which temporary consultation between distributors on film release dates could be compatible with competition law. In Italy, a new Commission in charge of verifying the correct classification of cinematographic works by distributors and producers has been created. In the words of the Italian Minister of Culture, with this decree, "film censorship has been abolished and the system of controls and interventions that still allowed the State to intervene on the freedom of artists has been definitively ended". But just as the audiovisual sector extends beyond the silver screen, our newsletter also covers other areas: from the co-regulation of commercial communications in Spain to the withdrawal of the European Commission’s 2019 Commitment Decision involving major film studios and Sky UK; from new rules affecting the media sector in Bulgaria to a Dutch court judgment on an offensive COVID-19 broadcast and incitement to hatred; from Germany’s voluntary self-monitoring body for multimedia service providers approval of Disney+’s new extended child protection functions to the Danish draft implementation of EU copyright directives.
Stay safe and enjoy your read!
Maja Cappello, editor European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Bon v Croatia
The European Court of Human Rights (ECtHR) has once more taken into consideration some specific features of offensive statements distributed over the Internet in a case applying Article 10 of the European Convention on Human Rights (ECHR). The applicant, an environmental activist, was convicted and fined for insulting a local politician, stating in public that the latter had “acted like a real cockroach”. The ECtHR found that the criminal conviction for insult violated the activist’s right to freedom of expression as guaranteed under Article 10 ECHR. The Court referred to the...
European Court of Human Rights: Sedletska v. Ukraine
The right for journalists to protect their sources also prohibits the judicial authorities to have access to journalists’ data stored on the server of a mobile telephone operator. That is the essence of a judgment recently delivered by the European Court of Human Rights (ECtHR). The ECtHR found a violation of the protection of journalistic sources as part of the right to freedom of expression under Article 10 of European Convention on Human Rights (ECHR). In an early stage of the procedure the ECtHR, by way of an interim measure, had already requested the Ukrainian authorities to abstain...
EU: European Commission
European Commission: 2019 Commitment Decision involving major film studios and Sky UK withdrawn
On 31 March 2021, the European Commission withdrew an important 2019 Commitment Decision which had made commitments binding a number of well-known film studios and the broadcaster Sky UK to address the Commission’s concerns regarding clauses in the studios' licensing contracts for pay-TV with Sky UK (see IRIS 2019-4/6 and IRIS 2015-9/1). The film studios were Disney, NBCUniversal, Sony Pictures, and Warner Bros. According to the Commission, the clauses at issue “prevented Sky UK from allowing EU consumers outside the United Kingdom and Ireland to subscribe to Sky UK's pay-TV...
EU: European Commission
European Commission: Launch of European News Media Forum
On 23-25 March 2021, the European Commission held the first edition of the European News Media Forum, which was a structured dialogue on the issue of the safety of journalists, and the preparation of a Commission Recommendation on the safety of journalists. In the recently adopted European Democracy Action Plan (see IRIS 2021-2/4), the European Commission had stated that it would set up the Forum to strengthen cooperation with stakeholders on media-related issues, and would organise a structured dialogue involving Member States and other stakeholders, bringing in the expertise of the Council of...
[BA] New rules to extend broadcasters’ editorial responsibility to their online content
The Council of the Communications Regulatory Agency of Bosnia and Herzegovina (CRA) has approved draft amendments to the CRA Rules governing the provision of audiovisual and radio media services, with a view to extend the licensees’ editorial responsibility to their online content. More specifically, it is proposed that all content published on broadcasters’ official websites or websites marked with their logo is subject to the same basic tier of rules as the broadcast content, in terms of incitement to violence, hatred and discrimination, prejudice to public health and safety, protection...
[BG] New regulations affecting the media sector
On 19 March 2021 a new Закон за предоставяне на цифрово съдържание и цифрови услуги и за продажба на стоки (Supply of Digital Content and Digital Services and Sale of Goods Act – the Act) was promulgated in Държавен вестник (State Gazette). With this, Bulgaria has transposed two EU directives: 1) Directive 2019/770 on digital content and digital services; and 2) Directive 2019/771 on certain aspects concerning contracts for the sale of goods. The Parliament has adopted a rather strange approach where both directives are transposed in a single legal act. At the same time, multiple amendments...
[DE] FSM approves additional Disney+ youth protection functions
In a press release on 15 March 2021, the Freiwillige Selbstkontrolle Multimedia-Diensteanbieter e.V. (voluntary self-monitoring body for multimedia service providers – FSM) announced that it had granted a seal of approval to Disney+ on account of its new extended youth protection functions. The FSM is a non-profit organisation recognised by the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) as a self-regulatory body in the telemedia sector. One of its tasks is to assess the suitability of youth protection systems designed to ensure...
[DE] German media regulators issue statement on DSA and DMA
On 30 March, the 14 German media regulatory authorities issued a joint statement explaining their views on the proposed Digital Services Act (DSA) and Digital Markets Act (DMA) as part of the European Commission’s consultation process. They stressed, in particular, that a general legal framework for global online services must take into account the specific needs of the media. The media authorities expressed particular concern about a lack of practical detail and the proposed supervisory structures. In the German regulators’ view, the Commission’s proposals are based on a...
[DE] KEK publishes report on video streaming data
On 3 March 2021, the Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media – KEK) published a study it had commissioned from the Fraunhofer Institute for Open Communication Systems (FOKUS) on the recording of video streaming usage data. The report primarily considers the different technical approaches that can be used and how the regulatory framework should be shaped accordingly. The KEK is responsible for monitoring compliance with the rules protecting the diversity of opinion on national commercial television and taking relevant decisions....
[DE] Online Copyright Clearance System is launched and arranges block of streaming site
A new Clearingstelle Urheberrecht im Internet (Online Copyright Clearance System – CUII) has been created to promote joint solutions for dealing with websites that systematically infringe copyright and ancillary intellectual property rights in Germany. The CUII was launched as an independent body at the start of the year on the basis of a code of conduct adopted on 18 January 2021. The code was signed by companies regularly affected by infringements of copyright and intellectual property rights on the Internet, i.e. Internet access providers on the one hand and holders of such rights or...
[DK] Draft implementation of EU copyright directives
After a short public hearing on 26 March 2021, a bill was introduced in parliament which implements in Danish law Articles 15 and 17 of the Directive 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive) as well as the Directive 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes (SatCab II Directive). The bill’s keyword is rights clearance. Going further than the SatCab II Directive, the bill...
[ES] New agreement for the promotion of co-regulation concerning commercial communications on television
On 6 April 2021, the Spanish regulator Comisión Nacional de los Mercados y la Competencia (National Commission on Markets and Competition - CNMC), and the independent advertising self-regulatory organisation Asociación para la Autorregulación de la Comunicación Comercial (AUTOCONTROL) signed an agreement to promote the co-regulation of commercial communications on television. AUTOCONTROL manages the Spanish system of self-regulation of commercial communication which helps to ensure the correct application and compliance with the General Act 7/2010 on Audiovisual...
[FR] CNC facilitates initial film release via other distribution methods until cinemas reopen
“Between mid-May and the beginning of summer, we will create a timetable for the gradual resumption of cultural activities,” said French president Emmanuel Macron on 31 March 2021 during his televised address announcing new restrictions on movement within France. The following day, the prime minister told parliament, “This reopening will take place as soon as the health situation allows it. The government will present this reopening strategy to parliament in due course.” Meanwhile, with more than 400 French and foreign feature films awaiting the reopening of cinemas, which...
[FR] CSA fines CNews EUR 200,000 for comments inciting hatred and discrimination
On 17 March 2021, the Conseil Supérieur de l'Audiovisuel (French audiovisual regulatory body – CSA) imposed a fine of EUR 200,000 against the CNews television channel following comments made by Eric Zemmour during the programme "Face à l'info" broadcast on 29 September 2020. Talking about the situation of foreign unaccompanied minors in France, the political commentator said several times that “most” or “all” of them were, or at least would become, “thieves”, “rapists” and “murderers”, and that...
[FR] CSA orders Canal Plus to respect its obligations to contribute to audiovisual production
After finding that the Société d’Edition de Canal Plus (SECP) had failed to meet its obligations to contribute to the development of audiovisual production in the 2018 and 2019 financial years, the Conseil Supérieur de l'Audiovisuel (French audiovisual regulatory body – CSA) ordered the company to meet these obligations, which were laid down in Articles 40, 42 and 43 of the Decree No. 2010-747 of 2 July 2010 and which included an obligation to promote independent and French-language productions. Canal Plus and its special-interest television channels...
[FR] Safeguarding of cultural creativity and founding of ARCOM: audiovisual reforms continue
In the final phase of the legislative reforms initiated at the end of 2020 to transpose the AVMS Directive, the bill “on the regulation and protection of access to cultural works in the digital age” was presented to the Council of Ministers on 8 April 2021 and will be debated by the Senate on 18 and 19 May 2021. The government’s decision to approve an expedited procedure means the new law could be adopted by the summer. The bill incorporates and reinforces some of the provisions of the bill on audiovisual communication and cultural sovereignty in the digital age that was tabled...
[FR] Temporary consultation between distributors on film release schedule compatible with competition law
On 16 April 2021, the Autorité de la concurrence (competition authority) issued an opinion in response to a request submitted by the Médiateur du cinéma (cinema ombudsman) in February 2021. In accordance with Article L. 213-6, para. 2, of the Code du cinéma et de l’image animée (Cinema and Moving Image Code), the ombudsman asked the competition regulator to examine the possibility of consultation between film distributors aimed at agreeing a regulated film release schedule until the situation returned to normal. It asked the competition authority to “set...
[GB] Advertising watchdog warns Instagram influencers over compliance
On 18 March 2021, the Advertising Standards Authority (ASA), the UK’s regulator of advertising across all media, published its research on whether influencer ads are appropriately disclosed on social media. The regulator’s report revealed a “disappointing overall rate of compliance” with its rules requiring ads on social media to be clearly signposted as such. The UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code), which applies to ads in all non-broadcast media, including digital platforms, requires that marketing communications must...
[IT] Agcom fine on RAI annulled
On 29 March 2021, the Italian Administrative Courts(TAR Lazio) in charge, adopted a judgment (No. 3800/2021) concerning the sanction imposed by Agcom on RAI for violation of pluralism and of public radio and television service obligations. Following the RAI complaint the Court annulled the resolution No. 69/20/CONS of the 13 and 14 February 2020, concerning "Conclusion of the proceedings initiated against RAI pursuant to Article 48 of the Consolidated Law for the alleged non-fulfillment of the radio and television general public service obligations and of the national service contract...
[IT] Communications Authority launches survey on the services delivered by online platforms
By resolution no. 44/21/CONS adopted on 4 February 2021, the Italian Communications Authority has launched a survey (indagine conoscitiva) on the services provided by online platforms. The survey aims to serve a variety of purposes: to allow AGCOM to categorize the said services; to assess the main issues and their effects; to craft a map of the existing legal framework applicable to digital services and online platforms; to determine the most pressing issues that regulators are supposed to address; to select best practices based on a comparative overview of different legal systems; to influence...
[IT] Decree establishing the Commission for the classification of cinematographic works
On 2 April 2021, the Italian Minister of Culture, Dario Franceschini, signed the decree establishing the Commission for the classification of cinematographic works at the General Directorate for Cinema of the Ministry of Culture. This Commission will be in charge of verifying the correct classification of cinematographic works by distributors and producers in accordance with the Legislative Decree No. 203 of 7 December 2017 (see IRIS 2018-2/24). In the words of the Minister, with this decree, "film censorship has been abolished and the system of controls and interventions that still allowed...
[IT] Referral to CJEU of preliminary questions regarding advertising time limits
On 25 March 2021, the Italian Council of State referred some preliminary questions to the Court of Justice of the European Union about the advertising time limits. In 2017, Agcom sanctioned three media service providers of the RTI group (“Canale 5”, "Italia 1" and “Rete 4”) for the violation of advertising time limits, pursuant to Article 38, paragraph 2 of the legislative decree 31 July 2005, No. 177 (the Italian media legislation, also known as “TUSMAR”). According to this provision, self promotion of broadcasters' programs is not included...
[LV] Latvian regulator issues fines for spreading fake news about coronavirus
The regulatory approach to disinformation (especially during the coronavirus pandemic) is a subject high on the media law agenda in the EU and its member states, and in the context of the European Democracy Action Plan. How regulators within the EU deal with disinformation is therefore important, and not only in terms of legal comparisons. With this in mind, the sanction recently issued by the Latvian regulator for coronavirus-related disinformation attracted particular attention, including beyond the Baltic state’s borders. On 2 March 2021, the Nacionālā elektronisko plašsaziņas...
[MT] Interview with the Leader of the Opposition deemed to be fair and impartial
On 26 March 2021, the Broadcasting Authority decided on a complaint by the Nationalist Party filed under Article 34 of the Broadcasting Act. This article stipulates that any party that feels that it has been unfairly treated in a broadcast, has the right to complain and ask the regulator to intervene. The complaint concerned a current affairs programme broadcast on the public service television station, which consisted of a one-on- one interview with the Leader of the Opposition. In its complaint, the Nationalist Party (PN) alleged that the journalist/presenter opted for a hard-line approach...
[NL] Court of Appeal judgment on offensive COVID-19 broadcast and incitement to hatred
On 2 March 2021, the Amsterdam Court of Appeal delivered an important judgment on offensive expression and the limits of satirical and artistic expression in the media. The Court held that there should be no prosecution for incitement to hatred or group insult over the broadcast of an offensive satirical song about Covid-19 and Chinese individuals. The defendant in the case was the presenter of a well-known programme, which regularly includes a segment responding to current events in a satirical manner. In February 2020, the defendant broadcast the so-called “Corona song” as...
[NL] New guidelines on privacy rules for political parties during election campaigns
On 16 February 2021, the Autoriteit Persoonsgegevens (Dutch Data Protection Authority - AP) published important new Guidelines for political parties on the protection of privacy during election campaigns, including the use of political microtargeting. The Guidelines were published in the run-up to the Dutch parliamentary elections held on 15-17 March 2021. The European Commission also recently announced in the European Democracy Action Plan that it will examine “restricting” microtargeting in the political context, and propose legislation on political advertising in 2021 (see IRIS...
[SI] Update on media legislation proposals and European Parliament debates on media freedom
In 2020, IRIS reported on a range of legislative proposals from the Slovenian government relevant to the media sector. These included the following: a draft proposal for amending the Law on Audiovisual Media Services (see IRIS 2020-9/12 and IRIS 2021-1/26); a draft law on creating a Super Regulator, which proposes a merger between the Agency for Communication Networks and Services (AKOS) and five other regulators (see IRIS 2020-10/14); and draft amendments to the Slovenia Radio and Television Act, the Mass Media Act and the Slovenia Press Agency Act (see IRIS 2020-8/21). There was a strong...
[UA] Supreme Court on sanctions against Ukrainian TV channels
The President of Ukraine introduced, with his Decree of 2 February 2021, broad sanctions (see IRIS 2017-7/33) against the assets of a member of the national Parliament and certain Ukrainian companies affiliated with him, as well as other persons, who were, in particular, accused of disseminating “pro-Russian propaganda.” Among others, these sanctions enabled the power to annul licenses and stop broadcasting of the national TV channels Zik-TV, NewsOne and 112-Ukraina for five years. The decree was appealed in the Supreme Court of Ukraine by a citizen of Ukraine who claimed that it...
[UA] Supreme court on freedom of access to Russian social media
On 4 November 2020, the Grand Chamber of the Supreme Court of Ukraine upheld the decision taken earlier by the Administrative Cassation Court, a chamber of the Supreme Court of Ukraine, in the case challenging the Decree of the President of Ukraine on sanctions in relation to certain Russian social media and electronic mail services. The Decree of the President of 14 May 2020 introduced the decision of the Council on National Security and Defence of Ukraine, which superseded, extended and amended earlier sanctions against Russian legal and physical persons (see IRIS 2017-7/33). In particular,...
United States of America
[US] Curtains up for the Shuttered Venue Operators Grant
The Shuttered Venue Operators Grant (SVOG) programme has commenced in the United States as of early April 2021. With funding of USD16.2 billion (EUR 13.5 billion) available, these grants are hoped to provide much-needed financial support to cinemas, theatres, and other performance venues hit by the coronavirus pandemic across the United States. Organisations eligible for SVOGs will be those with “defined performance and audience spaces”, and include cinemas and theatres, live venue operators or promoters, performing arts organisations, talent representatives, and certain other cultural...
[US] Facebook’s Oversight Board decision on former President Trump’s suspension
On 6 January 2021, a mob stormed the Capitol Building in Washington, D.C. while a joint session of Congress was assembled to count electoral votes. During these events, then-President Donald Trump posted two pieces of content which, according to Facebook, violated its Community Standard on Dangerous Individuals and Organizations. Accordingly, Facebook removed both posts and blocked Mr Trump from posting on Facebook or Instagram for 24 hours. On 7 January 2021, after further reviewing Mr Trump’s posts, his recent communications off Facebook, and additional information about the severity of...