IRIS newsletter 2022-2

Publisher:

European Audiovisual Observatory
76, allée de la Robertsau
F-67000 STRASBOURG

Tel. : +33 (0) 3 90 21 60 00
Fax : +33 (0) 3 90 21 60 19
E-mail: obs@obs.coe.int
www.obs.coe.int

Comments and Suggestions to: iris@obs.coe.int

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

Corrections:

Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Julio Talavera Milla • Aurélie Courtinat • Barbara Grokenberger • Glenn Ford • Claire Windsor

Web Design:

Coordination: Cyril Chaboisseau, European Audiovisual Observatory
ISSN 2078-6158

Editorial

On 21 December 2021, the European Commission issued a call for evidence on the Commission's upcoming landmark proposal for a Media Freedom Act. This follows the announcement in September 2021 by the European Commission president, Ursula von der Leyen, that the Commission would “deliver” a Media Freedom Act in 2022, in order to safeguard the pluralism and independence of the media in the EU internal market. The purpose of the call for evidence is to invite stakeholders to express views on the Commission’s description of the Media Freedom Act initiative, why it is necessary, and what it aims to achieve. Regarding public service media, the Commission aims to reflect on how best to strengthen the governance of public media, around a common framework to better prevent the risks of politicisation and to better ensure diversity and pluralism. The Council of Europe is pursuing in parallel various initiatives to counter current trends threatening freedom of expression such as the coverage of public events or broadcasting bans in line with its traditional role of advocating freedom of expression as enshrined in Article 10 of the European Convention on Human Rights. And the European Audiovisual Observatory is preparing an IRIS Plus on the topic.

So against the background of all these European efforts, the European Audiovisual Observatory invites you to its online conference on the current status and future of PSM and will deal with the following questions: How can Europe best ensure the editorial independence of PSM? How can one guarantee adequate funding of PSM? What is the role of PSM in the online environment? And what about its future? This free public conference will take place online on Wednesday, 23 February 2022, 15.00 – 17.00 CET. You can read the agenda here and register here.

Otherwise, if you wonder about what is going on at the national level, then the Newsletter is here waiting for you.

Stay safe and enjoy your read!

Maja Cappello, editor

European Audiovisual Observatory

International

COUNCIL OF EUROPE

Austria

European Court of Human Rights: Standard Verlagsgesellschaft mbH v. Austria (no. 3)

While the European Court of Human Rights (ECtHR) has, in the last few years, dealt with many aspects of the right to freedom of expression in the digital environment, it has only recently delivered a judgment specifically focusing on the right of anonymity for user generated content on news portals. In Standard Verlagsgesellschaft mbH v. Austria (no. 3) the applicant media company complained that court orders that imposed on it an obligation to disclose data revealing the identity of users, who had posted comments on its Internet news portal, had infringed its freedom of expression as guaranteed...

EU: European Commission

Commission issues call for evidence on proposal for a Media Freedom Act

Germany

[DE] Court rules in ARD’s favour in case against BILD LIVE concerning unlawful broadcast

On 9 December 2021 (case no. 16 O 297/21), the Landgericht Berlin (Berlin regional court – LG Berlin) granted an interim injunction in proceedings brought by the nine public broadcasting corporations that comprise the ARD, declaring the broadcast of certain clips from ARD programmes by a private broadcaster as illegal on account of copyright infringements. The dispute began when private broadcaster BILD TV, recently launched by the Axel Springer media company in August 2021, showed excerpts from the public broadcasters’ election programming in its own BILD LIVE programme. On the...

[DE] Proceedings opened against RT for broadcasting without a licence

The dispute over the distribution of the RT DE television channel in Germany is threatening to become another area of conflict in what has, for many years, been an increasingly tense relationship between the Russian Federation and Germany. On 16 December 2021, RT (previously known as Russia Today) launched RT DE, a new live German-language channel. However, it did not have a German broadcasting licence for the channel, but instead used a licence issued in Serbia. A previous attempt by the broadcaster to obtain a licence from Luxembourg had failed. However, since the broadcaster does not hold...

[DE] Remit and structure of public service broadcasting to be reformed

In November 2021, the Rundfunkkommission (Broadcasting Commission) of the German Bundesländer, which acts as a joint discussion forum and decision-making body on media policy and related legal questions for the Heads of the State and Senate Chancelleries, published a draft proposal on the remit and structural reform of public service broadcasting. If the proposal is adopted, it will be the third time that the Medienstaatsvertrag (state media treaty – MStV) has been reformed, the current version of which came into force in November 2020. Its main purpose is to future-proof public service...

[DE] Stuttgart regional court: state media treaty’s regional TV advertising ban breaches EU law

In a judgment of 23 December 2021 (case no. 20 O 43/19), the 20th civil chamber of the Landgericht Stuttgart (Stuttgart regional court – LG Stuttgart) ruled that the ban on regional TV advertising by national TV broadcasters, enshrined in Article 8(11) of the Medienstaatsvertrag (state media treaty – MStV), breached EU law because it was incompatible with the freedom to provide services (Article. 56 of the Treaty on the Functioning of the European Union (TFEU)) and the principle of equal treatment laid down in Article 20 of the EU Charter of Fundamental Rights. The plaintiff is...

[FR] New framework of obligations to contribute to cinematographic and audiovisual production

Following the decree of 22 June 2021 concerning on-demand audiovisual media services (“SMAD decree”), the framework of obligations to contribute to cinematographic and audiovisual production was further modified with the publication of the so-called "DTT" and "Cable-Satellite" decrees on 30 December 2021. According to the Ministry of Culture, these decrees have a number of objectives. Firstly, they are designed to simplify the regulatory framework by increasing the use of the agreements concluded between service providers and the Autorité de régulation...

[FR] Operators of online platforms with more than 10 million unique visitors per month must help fight public dissemination of hateful content

In application of Article 42 of the Loi confortant le respect des principes de la République (Law no. 2021-1109 of 24 August 2021 safeguarding respect for the principles of the Republic), which amended Article 6-4 of the Loi pour la confiance dans l'économie numérique (Law no. 2004-575 on confidence in the digital economy – LCEN), decree no. 2022-32 of 14 January 2022 requires online platform operators that registered more than 10 million unique visitors per month on French soil in the previous calendar year to contribute to the fight against the dissemination of...

[FR] Procedure for provisionally suspending retransmission of certain television and on-demand audiovisual media services

Decree no. 2021-1923 of 30 December 2021 explains how the Autorité de régulation de la communication audiovisuelle et numérique (Regulatory Authority for Audiovisual and Digital Communication – ARCOM), pursuant to Article 43-8 of the Law of 30 September 1986 as amended by the Law of 25 October 2021 transposing the Audiovisual Media Services Directive, can provisionally suspend the retransmission of television and on-demand audiovisual media services that fall under the jurisdiction of another EU member state. Such a sanction can be imposed if a service poses a serious...

[FR] Rules applicable to commercial communications provided by video-sharing platforms

Video-sharing platforms, which are now covered by Article 2 of the Law of 30 September 1986, are subject to certain obligations set out in Articles 59 to 61 of the Law. Decree no. 2021-1922 of 30 December 2021 explains these obligations in respect of commercial communications that are marketed, sold or organised by these platforms. Commercial communications (in particular advertising, sponsorship, teleshopping and product placement) are “images, with or without sound, designed to directly or indirectly promote products, services or the image of a natural or legal person who exercises an economic...

[GB] The licensee of Midland Asian Television held in breach of Ofcom rules relating to due impartiality for an edition of their Pakistan Reporter current affairs programme.

Midlands Asian Television (MATV) was held in breach of Rule 5.5 of the Ofcom Broadcasting Code by failing to ensure that their edition of Pakistan Reporter on the 8 February 2021 provided due impartiality. MATV is a satellite television service that boradcasts programming in Hindu, Urdu, English, Gujarati and Punjabi. The Licence for MATV is held by the Middlesex Broadcasting Corporation Limited. On the 8 February 2021 an edition of Pakistan Reporter, a current affairs and analysis progarmme about Pakistan, was broadcasted in Urdu on the subject of the Pakistan government's treatment...

[IT] The Italian Competition Authority launches a market test on the commitments presented by TIM and DAZN for the broadcasting of Serie A football matches

On 5 January 2022, through Resolution No. 29949, the Italian Competition Authority (AGCM) launched a market test on the commitments presented by Telecom Italia (TIM) and DAZN in the realm of investigation I857, initiated by the Authority into the agreement executed by the companies for the broadcasting of Serie A football matches. In July 2021, AGCM launched an investigation into the partnership between TIM and DAZN for the broadcasting and technological support for the broadcasting of Serie A football matches (2021-2024). According to AGCM, the investigation highlighted that the provisions...

[IT] Transposition of Copyright Directive

On 8 November 2021, the Italian Government approved legislative decree no. 177/2021 (“Legislative Decree”) implementing Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (“DSM Copyright Directive”). The Legislative Decree substantially amended law no. 631/1941 (the Italian “Copyright Law”). As is customary in Italy, the European Delegation Act 2019-2020 entrusted the Government with the transposition of several EU...

[IT] Transposition of SatCab Directive

On 8 November 2021, the Italian Government approved legislative decree no. 181/2021 (“Legislative Decree”) implementing Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 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 programs and amending Council Directive 93/83/EEC (“SatCab Directive”). The Legislative Decree substantially amended law no. 631/1941 (the Italian “Copyright Law”). The development...

[IT] Transposition of the revised AVMSD

On 4 November 2021, the Italian Government approved Legislative Decree no. 208/2021 (“New AVMS Code”) implementing Directive (EU) 2018/1808 of the European Parliament and of the Council that amended Directive 2010/13/EU (“AVMS Directive”). Legislative Decree no. 208/2021 has repealed and substituted Legislative Decree No. 177/2005 (“Previous AVMS Code”). As is customary in Italy, the European Delegation Act 2019-2020 entrusted the Government with the transposition of several EU Directives into national law, with Article 3 dictating the guiding principles to...

[LV] Media regulator takes active enforcement measures against providers of on-demand audiovisual media services

Recently the Latvian media regulator, the National Electronic Mass Media Council (NEPLP) has taken a more active enforcement stance against unregistered on-demand audiovisual media services, as well as promoting compliance with the relevant rules, by issuing guidelines. On 2 December 2021, the NEPLP announced that it has decided to penalise natural persons involved in the unlawful provision of an on-demand audiovisual media service – Brīvvalsts TV. According to the announcement, the NEPLP carried out a thorough examination of their website to assess its conformity with the features of...

[NL] New Online Gambling Advertising Code comes into effect

On 15 December 2021, the new Online Gambling Advertising Code 2021 (Reclamecode voor Online Kansspelen) was published by the Dutch Advertising Code Foundation (Stichting Reclame Code) (SCC), which is the self-regulatory body for advertising, including broadcast advertising, in the Netherlands. The Code builds upon the new rules contained in the recently-enacted Online Gambling Act 2021, which introduced new provisions on online gambling advertising, and included amendments to the Dutch Media Act (Mediawet) (see IRIS 2021-1/24). Importantly, the new Code has a number of notable provisions applicable...

[NL] Court orders politician to remove social media posts comparing COVID-19 measures to the Holocaust

On 15 December 2021, the Rechtbank Amsterdam (District Court of Amsterdam) delivered a significant judgment on the issue of a politician’s right to freedom of expression set against the right to a private life of the victims and survivors of the Holocaust. The Court ordered the removal of four messages from Instagram, Facebook, and Twitter, as well as prohibitions on reposting the messages and posting Holocaust imagery in the context of the debate on COVID-19 measures. The case involved Mr. Thierry Baudet, leader of the political party Forum voor Democratie, who had written several messages...

[RO] Modification of the audiovisual and cinematography legislation

The Chamber of Deputies (lower chamber of the Romanian Parliament) adopted on 7 December 2021 the Draft Law for the amendment and completion of the Audiovisual Law no. 504/2002, and the amendment and completion of the Government Ordinance no. 39/2005 on cinematography (see inter alia IRIS 2013-6/28, IRIS 2017-1/30, IRIS 2017-2/27, IRIS 2017-7/28, IRIS 2018-6/30, IRIS 2018-8/36, IRIS 2018-10/22, IRIS 2018-10/23, IRIS 2019-1/31, IRIS 2019-2/21, IRIS 2019-4/29, and IRIS 2019-5/22). The Draft law was sent to the Senate (upper chamber) whose decision will be final. The project aims at transposing...

[SI] Slovenia transposes the AVMSD without the introduction of obligations to invest in European works and the planned European Audiovisual Production fund

On 15 December 2021, the Slovenian Parliament passed the Law amending the Law on Audiovisual Media Services. The draft proposal for amending the Law on Audiovisual Media Services was unanimously endorsed by the Cultural Committee of the Parliament in June 2021. However, there has been an ongoing debate regarding the proposal in the law to introduce a new fund to finance European audiovisual production, and the introduction of obligations for audiovisual media service providers to invest in European audiovisual works. The draft law had introduced a new Article 16a of the Act, which required the...