IRIS newsletter 2021-8
Publisher:
European Audiovisual Observatory
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E-mail: obs@obs.coe.int
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Executive Director: Susanne Nikoltchev
Editorial Board:
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
E-mail: alison.hindhaugh@coe.int
Translations:
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Paul Green • Marco Polo Sarl • Nathalie Sturlèse • Brigitte Auel • Erwin Rohwer • Sonja Schmidt • Ulrike Welsch
Corrections:
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Julio Talavera Milla • Aurélie Courtinat • Barbara Grokenberger • Glenn Ford • Rebecca Sevoz
Web Design:
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
ISSN 2078-6158
© 2021 European Audiovisual Observatory, Strasbourg (France)
Editorial
Summer is over, most people are getting back to work, whether at home or at the workplace, and so are we, with a newsletter full of interesting topics! Among them prominently stands the opinion of the Advocate General Saugmandsgaard Øe on Case C‑401/19 and its important implications for the regulation of copyright in the European Union. At national level, there is an ongoing controversy in Poland around the amendment to the Law on Radio and Television concerning foreign ownership of Polish media. In other EU countries, legislative efforts to implement the AVMSD continue to bear fruit: in Portugal, Decree-Law No. 74/2021 harmonises national and European requirements concerning State support to production, and extends taxes and investment obligations to video sharing platforms and VOD operators. In France, the on-demand audiovisual media services decree foresees that foreign VOD providers, aimed at French audiences, can be made subject to the same rules, on financial contributions to cinematographic and audiovisual production, as French-based services by way of derogation from the country-of-origin principle. In Spain, the Ministry of Economic Affairs and Digital Transformation of the Spanish Government submitted the Draft Law on Audiovisual Communication to a public hearing on 29 June 2021.
You can read about these and many other interesting developments in our electronic pages.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
International
COUNCIL OF EUROPE
Belgium
European Court of Human Rights: Hurbain v. Belgium
The European Court of Human Rights (ECtHR) found that a court order to anonymise an article in a newspaper’s electronic archive did not violate the publisher’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The judgment relates to the “right to be forgotten” as part of the right to privacy under Article 8 ECHR, in particular in respect of media archives (see also Iris 2013-9/1 and Iris 2018-8/1). The ECtHR held that the order to anonymise the name of a driver who had caused a fatal accident in the online archived version...
Georgia
European Court of Human Rights : Gachechiladze v. Georgia
The European Court of Human Rights (ECtHR) found a violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), on account of the administrative‑offence proceedings and the resulting sanctions for disseminating images on social media and on the packaging of condoms deemed by the domestic courts in Georgia to be unethical advertising. The ECtHR found no demonstration of the existence of a pressing social need to interfere with the advertising and it considered the prioritisation of views on ethics of the members of the Georgian Orthodox Church...
EUROPEAN UNION
Belgium
Court of Justice of the European Union: Case Mircom v. Telenet BVBA
On 17 June 2021, the CJEU delivered its judgment on Case C‑597/19. The request was made in proceedings between Mircom International Content Management Consulting (M.I.C.M.) Limited, referred to as "Mircom", the holder of certain rights over a large number of pornographic films produced by eight undertakings established in the United States and Canada, and the Internet access provider Telenet BVBA. It concerned the latter’s refusal to provide information enabling its customers to be identified on the basis of several thousand IP addresses collected from a peer-to-peer network, where...
EU{EC} - European Union (all)
Regulation on addressing the dissemination of terrorist content online enters into force
On 6 June 2021, the new EU Regulation on addressing the dissemination of terrorist content online came into force, following a three-year passage through the legislative process, beginning with the Commission’s proposal first published in autumn 2018 (see IRIS 2019-1/4). The purpose of the new Regulation is to establish uniform rules across the EU to address the misuse of hosting services for the dissemination of terrorist content online, and will be directly applicable in all EU member states from June 2022. Notably, the Regulation will permit competent national authorities to issue orders...
Poland
Advocate General: Opinion on Case C‑401/19
On 15 July 2021, Advocate General (AG) Saugmandsgaard Øe delivered his highly awaited opinion on Case C‑401/19. This case concerns an action brought on the basis of Article 263 TFEU by the Republic of Poland asking the Court to annul Article 17(4)(b) and (c), in fine, of Directive (EU) 2019/790 of the European Parliament and of the Council from 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC and, in the alternative, to annul Article 17 in its entirety. This provision imposes on those providers obligations to monitor...
NATIONAL
Bulgaria
[BG] CEM report on the snap parliamentary elections in July 2021
On 12 August 2021, Съвета за електронни медии (the Council for Electronic Media – CEM). published its Специализиран мониторинг на аудио- и аудио-визуално съдържание за парламентарния вот на 11.07.2021 г. (Specialized report of audio and audio-visual content for the parliamentary vote on 11July 2021 – the Report). In the Report, CEM presents the data and findings based on the specialised monitoring process of the activity of media service providers during the pre-election campaign. The main purpose of the monitoring process was to establish the way in which the providers of media...
Czechia
[CZ] Court upholds the Broadcasting Council's decision on unfair commercial practices
The Broadcasting Council of the Czech Republic imposed a fine of CZK 200 000 (EUR 8 000) on Telemedia InteracTV Production Home Limited, as the advertiser, for violating Article 2 paragraph b) of the Act on the Regulation of Advertising, which was committed by entering a teleshopping block entitled "Line of Love", broadcast on 21 August 2017 from 10:10 a.m. to 11:11 a.m. on the JOJ Family program. This is an unfair business practice according to Article 4 paragraph 1 of Act No. 634/1992 Coll., on consumer protection (hereinafter the “Consumer Protection Act”), in that...
Germany
[DE] Federal Administrative Court extends media rights to information from German Federal Intelligence Service
In two recent decisions, the Bundesverwaltungsgericht (Federal Administrative Court – BVerwG), Germany’s highest ordinary administrative court, ordered the Bundesnachrichtendienst (Federal Intelligence Agency – BND) to show greater transparency towards journalists. Under these decisions, the BND is required to disclose to journalists the identity of parties, involved in court proceedings, who had fought against the disclosure of press contacts in a separate court procedure, and that of media representatives invited to hold ‘informal briefings’ with the BND. These information...
[DE] Federal Constitutional Court rules on Saxony-Anhalt’s blocking of the public broadcasting fee increase
In a decision published on 20 July 2021, the First Senate of the Bundesverfassungsgericht (Federal Constitutional Court – BVerfG) decided that, by failing to approve the Erster Medienänderungsstaatsvertrag (first amended state media treaty), the Land of Saxony-Anhalt had violated the freedom of broadcasting enjoyed by public broadcasters under Article 5(1)(2) of the Grundgesetz (Basic Law – GG). The provisions of Article 1 of the first amended state treaty – including the plan to increase the public broadcasting fee by EUR 0.86 from EUR 17.50 to EUR 18.36 proposed by the...
[DE] Federal Supreme Court finds Facebook terms of use ineffective in relation to hate speech
In rulings of 29 July 2021 (III ZR 179/20 and III ZR 192/20), the Bundesgerichtshof (Federal Supreme Court – BGH) decided that Facebook’s terms of business, governing the deletion of users’ posts and the blocking of accounts when its internal standards had been breached, were ineffective. This was especially the case if Facebook did not agree to inform users about the removal of their posts, at least in retrospect, and about the intention to block their accounts in advance, indicate the reason for doing so, and grant them the opportunity to respond and request a new decision....
[DE] KJM orders blocking of Cypriot pornography portal
Following numerous violations of the Jugendmedienschutz-Staatsvertrag (State Treaty on the Protection of Minors in the Media – JMStV), the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) ordered the blocking of a pornographic website in a case referred to it by the Landesanstalt für Medien NRW (North-Rhine Westphalia media authority – LfM NRW). Many user profiles on the widely used German-language website provide unrestricted access to pornographic content, that is clearly likely to seriously impair the development...
[DE] ZAK objects to cooperation between Google and German Health Ministry over online health portal
On 15 June 2021, the Landesmedienanstalten (state media authorities) ruled on the first six cases linked to possible discrimination against journalistic and editorial providers by media intermediary Google on the basis of the Medienstaatsvertrag (state media treaty – MStV), which came into force on 7 November 2020. Since the treaty came into force, media intermediaries have been subject to German media regulation aimed at protecting diversity of opinion. Search engines, which are a type of media intermediary, aggregate and select third-party editorial content and present it in the form...
Spain
[ES] Regulator calls on RFEF to amend proposal for commercialising football audiovisual rights
On 6 July 2021, the Spanish regulator Comisión Nacional de los Mercados y de la Competencia (CNMC) called on the Real Federación Española de Fútbol (Spanish Football Federation - RFEF) to amend its proposal for commercialising the 2021-2024 audiovisual rights of the new Primera RFEF category in Spain, Europe and international markets. According to the CNMC, the RFEF proposal does not comply with certain aspects established in Royal Decree-Act 5/2015, which regulates the audiovisual broadcasting rights of professional football. The RFEF should amend its commercialisation...
[ES] Second Draft Law on Audiovisual Communication
Within the framework of the transposition of Directive 2018/1808 on audiovisual media services into Spanish law, the Ministry of Economic Affairs and Digital Transformation of the Spanish Government submitted the Draft Law on Audiovisual Communication again to a public hearing on 29 June 2021. This latest version incorporates some of the contributions received in the previous consultation period held in December 2020. It is expected therefore that some of the comments sent up to 12 July in this new round of consultation will also be incorporated into the final text. The main new features...
France
[FR] CNC announces EUR 90 million of new funding for cinemas, film production and distribution
On 29 July, the Centre national du cinéma et de l'image animée (National Centre for Cinema and the Moving Image – CNC) adopted eight new support measures designed to stimulate film exploitation, production and distribution, thanks to one-off state funding totalling EUR 90 million. The CNC president commented, "The public authorities are fully aware of the health pass’s impact on cinema attendance and the entire film industry. The CNC will be watching how the situation develops very closely, so we can ensure the health pass is successfully implemented while, at...
[FR] Conseil d’État refuses to suspend extension of health pass to cinemas and cultural venues with more than 50 guests from 21 July
On 20 July 2021, the Conseil d’État (Council of State) received several suspension requests and applications for the protection of fundamental freedoms from professional cultural organisations in response to the decree of 19 July 2021 in which the Prime Minister had extended the obligation for visitors to cultural and leisure venues accommodating more than 50 guests to present a so-called health pass (negative COVID test, vaccination or recent recovery certificate) from 21 July. While the applicants did not dispute the legitimacy of the reasons for extending the health pass requirement,...
[FR] Highly degraded local film exploitation situation can justify CNC’s refusal to approve open-air film screenings
In a decision of 30 June 2021, the president of the Centre national du cinéma et de l'image animée (National Centre for Cinema and the Moving Image – CNC) refused to authorise nine open-air film screenings that were due to be held in the municipality of Garenne-Colombes every Saturday in July and August. The municipal authority then asked the administrative court’s urgent applications judge, on the basis of Article L. 521-2 of the Code of Administrative Justice, to stay the execution of the CNC’s decision and order the CNC to allow it to organise open-air screenings...
[FR] Neighbouring rights: competition authority fines Google EUR 500 million
The Syndicat des éditeurs de presse magazine (Magazine Press Publishers’ Union – SEPM), the Alliance de Presse d'Information Générale (General Press Alliance – APIG) and the AFP news agency have appealed to the French competition authority, accusing Google of infringing the interim measures imposed against it on 9 April 2020. The competition authority had found that, following the adoption of the Law of 24 July 2019 creating a neighbouring right for press publishers and agencies, Google had unilaterally decided to stop posting article excerpts, photographs...
[FR] New obligations for on-demand audiovisual media services
As expected, since it constitutes one of the key elements of the current reforms resulting from the transposition of the Audiovisual Media Services Directive, the on-demand audiovisual media services (SMAD) decree was published and entered into force on 1 July 2021. Under the decree, foreign video on demand (VOD) platforms aimed at French audiences can be made subject to the same rules on financial contributions to cinematographic and audiovisual production as French-based services by way of derogation from the country-of-origin principle (Article 43-7 of the Law of 30 September 1986). The decree...
United Kingdom
[GB] Republic Bharat’s programme breached Ofcom rules by including unjustified derogatory and offensive language
Ofcom determined that Republic Bharat’s current affairs discussion programme had breached Rules 3.3 and 2.3 of the Broadcasting Code by allowing its presenter and some of the guests to make statements that amounted to derogatory and abusive treatment of Pakistani people. Further, the content was potentially offensive and not sufficiently justified by the context. Republic Bharat is a satellite TV channel, broadcasting mainly in the UK, and predominantly in Hindi. The station’s Ofcom licence is held by Worldview Media Network Limited (WM). Rule 3.3 of the Code states: "Material...
[GB] The Dyson Report considers the BBC’s investigation of 1995 Panorama’s interview with HRH Princess of Wales lacked integrity and transparency.
The Dyson Report ("the Report") published on 14 May 2021 held that the BBC fell short of its high standards of integrity and transparency by failing to mention to the public its investigation in 1995 and 1996 into the shortcomings of Martin Bashir’s ("Bashir") Panorama interview with HRH Princess of Wales (HRH). Also, Tony Hall (now Lord Hall), then the BBC’s Managing Director of News and Current Affairs, could not have concluded from the BBC’s investigation at the time that Bashir, who had secured the interview, was an honest and honourable man. Panorama...
Italy
[IT] AGCOM concludes four proceedings on the respect for pluralism by companies operating in the media and electronic communications sectors
With the decisions No. 209/21/CONS and 210/21/CONS published on 28 June and decisions No. 234/21/CONS and 235/21/CONS published on 30 July 2021, AGCOM concluded four proceedings about the respect for pluralism by companies operating in the media and electronic communications sectors. The proceedings were initiated pursuant to Article 4-bis, paragraph 1, of the Legislative Decree No. 125 of 7 October 2020, the rule which aims to avoid that the presence of the same company in the electronic communications and media sectors, given the convergence between the two fields, could have a distorting...
[IT] AGCOM passes modifications to the regulation on copyright enforcement online
On 22 July 2021 the Italian Communications Authority (AGCOM) adopted Resolution No. 233/21/CONS, which contains significant amendments to the regulation on copyright enforcement online approved via Resolution No. 680/13/CONS (hereinafter, the ‘Regulation’). Said modifications reflect both regulatory and technical developments occurred over the last years, as a result of the emerging challenges that digital technologies have posed to copyright protection. The changes mainly concern two key aspects, that is the extension of the subjective scope of application of the Regulation, and...
Lithuania
[LT] Additional rights to protect copyright more effectively granted to the Radio and Television Commission
On 29 June 2021, Seimas (the Parliament of Republic of Lithuania) has adopted amendments to the Lietuvos Respublikos autorių teisių ir gretutinių teisių įstatymas (Law on Copyright and Related Rights of the Republic of Lithuania, hereinafter "the Law"), the aim of which is to solve the practical problems faced by the Lietuvos radijo ir televizijos komisija (Radio and Television Commission of Lithuania - RTCL) in performing the functions assigned to effectively protect copyright on the Internet. Pursuant to the new provisions of the Law, the RTCL has been granted the right to...
[LT] Supreme Court annuls suspension of Russian TV
On 12 May 2021 the Supreme Administrative Court of Lithuania in a final judgment annulled the 2018 decisions of the Radio and Television Commission of Lithuania (RTCL), the national media regulator, on the 12-month suspension of the Russian state TV channel (IRIS 2018-4/32) and on imposing a monetary penalty on the Lithuanian cable and IPTV company INIT for its failure to comply with the suspension (IRIS 2018-7/24). The Supreme Administrative Court has also been an appeal instance in relation to the judgment of the Vilnius Regional Administrative Court in this case. The judgment reviewed various...
Netherlands
[NL] Supreme Court decision on disclosure of ISP customer data over illegal downloading
On 25 June 2021, the Supreme Court of the Netherlands (Hoge Raad) delivered an important decision on when an Internet service provider (ISP) is required to disclose customer data associated with IP addresses identified as being used for potential copyright infringement (see IRIS 2020-1/18 and IRIS 2020-7/16). Notably, the Supreme Court upheld a court of appeal ruling, concluding that an ISP (Internet Service Provider) was not required to provide customer data to a film distributor, that sought to pursue individuals for possible violation of intellectual property rights, as the privacy interests...
[NL] Supreme Court upholds politician’s insult conviction over televised speech and interview
On 6 July 2021, the Supreme Court of the Netherlands (Hoge Raad) delivered its closely-watched judgment concerning the conviction of Dutch politician Geert Wilders for group insult over comments made during a televised speech and media interview (see IRIS 2017-2/25 and IRIS 2020-9/13). Importantly, the Supreme Court held that Wilders’ conviction for group insult should be upheld, and did not violate the right to freedom of expression. Notably, no sentence had been imposed on Wilders by the lower courts, which the Supreme Court also upheld. The case arose in 2014 in the run-up to the Dutch...
Poland
[PL] "Lex TVN" - is media independence in Poland under threat?
On 11 August 2021, the Polish Parliament (lower chamber) adopted an amendment to the Law on Radio and Television, commonly referred to as "lex TVN". Why there is a controversy around this bill? The opposition points out that it targets TVN, a TV station allegedly unfavourable to the government, while the ruling party argues that the bill aims to prevent the Polish media from being bought by companies from non-democratic countries such as Russia, China or Arab states. The passing of the bill by the Parliament coincided with the TVN group applying for an extension of its licence. A provision...
Portugal
[PT] Cinema and Audiovisual – New rules and taxes for operators
On 25 August 2021, Decree-Law No. 74/2021 regulating the Portuguese Cinema and Audiovisual Law (Law No. 55/2012, of 6 September 2012, amended by Law No. 28/2014, Law No. 82 - B/2014, and Law No. 74/2020) was published. This Decree-Law harmonises national and European requirements concerning State support to production, and extends taxes and investment obligations to video sharing and VOD operators. As such, from 1 January 2022, video sharing services will have to pay the 4% exhibition tax already applied to cinema theatres and Pay TV services. VOD operators will have to pay 1% of their...
Russian Federation
[RU] Foreign IT giants receive special law
On 1 July 2021 a law was signed into force by the President, with an aim to provide “equal conditions of work for Russian and foreign entities on the territory of the Russian Federation” (Article 2). It foresees that all Internet companies, including social media, that service (daily) at least 500 000 users in Russia and do it through: (1) either providing resources in Russian (or other languages of the RF), or (2) publishing advertising targeting customers in Russia, or (3) processing personal data of clients from Russia, or (4) receiving monetary means from Russian individuals and...
