IRIS newsletter 2022-3
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 • 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 • Claire Windsor
Web Design:
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
ISSN 2078-6158
© 2022 European Audiovisual Observatory, Strasbourg (France)
Editorial
In April 2020, I wrote in these electronic pages about the outbreak of a pandemic that had the potential to become an economic disaster with a dramatic impact on the audiovisual sector. And yet, in those convoluted times, I would have never imagined that, almost two years later, and just when we were starting to see the light at the end of the COVID tunnel, I would have to open this newsletter with news of war in Europe. A fratricide war, like all wars in Europe end up to be. A war that, in the words of Council of Europe Secretary General Marija Pejčinović Burić, is “in flagrant violation of the Statute of Council of Europe and the European Convention on Human Rights.” A war that represents “a dark hour for Europe and everything it stands for.”
As the Kyiv TV Tower can attest, this war counts freedom of the media among its many unfortunate victims. In Russia, the regulator Roskomnadzor has released a statement requiring media outlets to cover the war in Ukraine using only official Russian sources and the Russian Parliament has introduced criminal liability for the public dissemination of false information. In Ukraine, the Parliament banned print and broadcast mass media from justifying or legitimizing the denial of the Russian Federation’s armed aggression in Ukraine and the National Council of Television and Radio Broadcasting (NCTRB) has decided to suspend retransmission of more than seventy Russian TV channels. Latvia, Lithuania, Estonia and Poland have followed NCTRB's approach in suspending retransmission of several services originating in Russia or Russian state-controlled services in their respective countries. Last but not least, in one of EU’s measures to respond to the Russian invasion of Ukraine, the EU has banned the state-owned channels Russia Today and Sputnik.
There is no way of knowing how this situation will unfold. From my very personal side, I can only express my solidarity with the victims of this unnecessary war (aren’t they all?), wishing that it ends soon and a durable, just peace ensues.
Maja Cappello, editor
European Audiovisual Observatory
International
COUNCIL OF EUROPE
Moldova
European Court of Human Rights: Ghimpu and Others v. the Republic of Moldova
On 1 February 2022, the European Court of Human Rights (ECtHR) delivered a judgment in a case concerning the failure to protect two politicians’ dignity and reputation from attacks in a documentary film aired by several TV channels, and which was also available on the Internet. The ECtHR found that by dismissing the complaints of the two politicians, Article 8 of the European Convention on Human Rights (ECHR) had been violated, in particular because the domestic courts had not sufficiently considered the (lack of) factual basis of some of the serious accusations against them. In this case,...
Russian Federation
European Court of Human Rights: Kilin v. Russia
Since the Russian Federation ratified the European Convention on Human Rights (ECHR) in 1998, the European Court of Human Rights (ECtHR) has found 116 violations by the Russian authorities of the right to freedom of expression and information as guaranteed by Article 10 ECHR. The judgment in the case of Kilin v. Russia is one of the rare judgments in which the ECtHR has found that an admissible complaint did not lead to the finding of a violation of an applicant’s right to freedom of expression by the Russian authorities. In Kilin v. Russia the ECtHR agreed with the domestic courts that the...
EUROPEAN UNION
Russian Federation
European Commission: Banning of Russia Today and Sputnik
On 27 February 2022, the President of the European Commission, Ursula von der Leyen, released a statement outlining further measures to respond to the Russian invasion of Ukraine. Among these measures, von der Leyen announced that the EU would ban the state-owned Russia Today and Sputnik, as well as their subsidiaries. High Representative/Vice-President Josep Borrell confirmed this in a separate statement, in which he affirmed that the EU was “taking a crucial step to turn off the tab for Russia's information manipulation in Europe by banning Russia Today and Sputnik from broadcasting...
NATIONAL
Cyprus
[CY] Provisions of the Directive 2018/1808/EU transposed into the law on Public Service Media
In December 2021, the House of Representatives voted on a Law to incorporate the provisions of the AVMS Directive 2018/1808/EU into the Law on the Cyprus Broadcasting Corporation, Chapter 300A, and also to introduce other changes. The main sections of the European Directive that are incorporated into the Cyprus Broadcasting Corporation's law are the following: New and amended definitions Advertising, its distinction from programmes, timing, duration, placement and prohibited products from advertising. Rules governing the content of advertising in respect of human rights, non-discrimination...
[CY] Provisions of the AVMS Directive 2018/1808/EU transposed into national Law
In December 2021, the House of Representatives voted on a Law amending the Law on Radio and Television Organisations N.7(I)1998 that regulates licensing and the operation of commercial audiovisual media services and which transposed the provisions of the Directive 2018/1808/EU into Cypriot Law. Cyprus was among nine European Union member states that received - in September 2021 - a reasoned opinion by the European Commission for having failed to implement the Directive within the set deadlines. The Law incorporates the amendments of the AVMS Directive 2010/13/EU introduced with the 2018 Directive...
[CY] Supreme Court: The right to be heard cannot be limited to written submission of positions
The Supreme Court has rejected an appeal by the Radio Television Authority ("the Authority") against a decision of the Administrative Court, ordering the cancellation of a fine against Antenna Television issued in 2012. The reason given by the Administrative Court for the cancellation of the fine, was the decision of the Authority to accept only written testimony from service providers when examining cases of violation of the law. The facts are as follows: The Authority had been examining a case against Antenna for violating regulations related to the...
Germany
[DE] Commission approves German scheme to support feature films and TV series
Through the German Motion Picture Fund (GMPF), the Federal Republic of Germany plans to support the production of feature films and television series from 1 January 2022 until 31 December 2023, with an estimated total budget of EUR 150 million. The support takes the form of direct grants to producers and co-producers of certain feature films and TV series. The expected scale of the GMPF meant that it required European Commission approval under EU state aid rules. On 27 October 2021, the Federal Republic therefore informed the Commission of the plan to continue with the scheme, which was first established...
[DE] German media regulator bans RT DE television channel in Germany
On 1 February 2022, the Kommission für Zulassung und Aufsicht (Commission on Licensing and Supervision – ZAK), a joint organ of the 14 German state media authorities, whose responsibilities include granting licences to national broadcasters in Germany and related supervisory measures, prohibited the production and distribution of the RT DE television channel in Germany because it did not have the necessary licence. In response, the Russian government took measures against the German international broadcaster Deutsche Welle, including the closure of its Moscow office, banned individuals...
[DE] New German Film Support Act enters into force on 1 January 2022
A new Filmförderungsgesetz (Film Support Act – FFG) entered into force in Germany on 1 January 2022. The new act renews the provisions of the 2017 FFG, which was valid from 2017 until 2021, and contains a number of amendments in response to changing market conditions. Adopted in accordance with the German system of regularly reviewing the film support system, the 2022 FFG only contains minor changes compared with the 2017 version and will remain in force until 31 December 2023. Firstly, the act broadens the scope of responsibilities of the Filmförderungsanstalt (Film Support...
Spain
[ES] Audiovisual Media Services providers satisfactorily comply with quotas on cultural and linguistic diversity for 2020
Audiovisual media service providers, in order to guarantee the necessary cultural and linguistic diversity, and its reflection in audiovisual productions, must comply with the quotas established in the Law 7/2010 of 31 March 2010 on General Audiovisual Communication.The quotas are 5% of profits from the previous year for providers and operators of services of a private nature, and 6% for those of a public nature. Every year, the Comisión Nacional de los Mercados y la Competencia (National Markets and Competition Commission, CNMC) analyses the compliance of audiovisual media service...
[ES] A new Draft Communication on the consideration of vloggers as audiovisual media service providers is open to comments
Streamers and content creators that offer their work in Spain using video-sharing platforms, such as YouTube or Twitch, could be considered audiovisual media service providers. In such a case, these creators, or so-called vloggers, would have to comply with the requirements set by the General Law on Audiovisual Communication (2010). The independent state body responsible for ensuring the proper functioning of the markets in Spain, the Comisión Nacional de los Mercados y la Competencia (National Markets and Competition Commission — CNMC), has published a public consultation on a...
EU: Council of the EU
The Russian invasion of Ukraine prompts various reactions by media regulatory authorities
The invasion of Ukraine by the Russian Federation on 24 February 2022 has prompted media regulatory authorities across Europe to take various measures against several Russian state-controlled media outlets, over recurring disinformation in their coverage of the conflict. While some regulators carefully monitor the situation, others have taken steps to restrict the retransmission of certain channels on their national territory, on the grounds of threats to national security – for EU regulators this has been mostly on the basis of Article 3(3) of the Audiovisual Media Services Directive. The...
France
[FR] Broadcast of sanitary product advertisement did not breach obligation to protect children
Following the television broadcast of an advertisement for “Nana” sanitary products in September and October 2019, the Pornostop organisation, whose primary goal is to prevent minors being exposed to pornography, asked the Conseil supérieur de l'audiovisuel (the French audiovisual regulator – CSA) to issue a formal notice to the television companies concerned, demanding that they respect their obligations to protect children. After the CSA rejected its request, Pornostop requested the annulment of the CSA’s initial decision and its subsequent rejection of...
[FR] Investment obligations for foreign providers: first agreement between French film industry and Netflix
On 22 February 2022, the French film organisations Blic, Bloc and ARP announced that they had signed their first agreement with a subscription-based on-demand video service, Netflix. The three-year agreement follows on from the Decree of 22 June 2021, which obliges foreign service providers to fund French and European film-making. Previously, only French providers had been under such an obligation. As part of its obligation to invest 4% of its net turnover generated in France, Netflix has agreed to contribute at least EUR 30 million per year to French-language film production. The agreement also...
[FR] New media chronology completes audiovisual reforms
A key element of the latest audiovisual reforms, media chronology, which determines when cinematographic works can be released via different methods of exploitation, is set out in Articles L. 231-1 et seq. of the Code du cinéma et de l'image animée (Cinema and Animated Image Code). Under the law, a professional agreement should be signed, setting out when a film can be made available by an on-demand audiovisual media service provider or when it can be broadcast on television. Under the new legal framework created through the transposition of the Audiovisual Media Services Directive...
United Kingdom
[GB] Ofcom consults on its guidance about how on-demand programme service providers comply with new requirements about European Works
Ofcom has issued proposed guidance about how on-demand programme service (“ODPS”) providers should comply with new requirements concerning European works under Section 368CB of the Communications Act 2003 (“the Act”). The proposed guidance reflects changes to the regulatory framework, effective since 1 November 2020, and will replace Ofcom’s existing guidance on European works obligations for ODPS providers. The regulatory change arises from the UK’s transposition of the revised Audiovisual Media Services Directive 2018 (AVMSD) into UK law, pursuant to the...
[GB] Libel trial against investigative journalist concludes before the High Court: a landmark test of the public interest defence
On 14 January 2022, a high-profile libel trial began before Mrs Justice Steyn at the Royal Courts of Justice in London. The British businessman Arron Banks sued investigative journalist Carole Cadwalladr for libel. Mr. Banks is an outspoken backer of Brexit. Ms Cadwalladr is an award-winning journalist who writes for the Guardian and Observer in the United Kingdom. She is particularly known for her work in uncovering the Cambridge Analytica scandal. The case arose out of remarks in a Ted Technology Conference titled ‘Facebook’s role in Brexit – and the threat to democracy’...
Italy
[IT] AGCOM intervenes on the reliability of DAZN’s audience rating systems
Last year the OTT platform DAZN acquired the audiovisual rights on all the matches of the Italian Serie A Championship for the three seasons 2021-2024. This caught the attention of the Italian Communications Authority (AGCOM) that, since then, has been focusing on several issues concerning DAZN. Specifically, by means of Resolution No. 18/22/CONS, AGCOM assessed the reliability of DAZN’s audience rating system. Audience ratings are not only relevant for advertising and future investmentment purposes, but also for the distribution of the revenues resulting from the commercialization of...
Netherlands
[NL] Covenant on website blocking comes into effect
On 25 October 2021, an agreement was reached between copyright holders, represented by the Dutch Federation of Copyright Holders (Federatie Auteursrechtbelangen) and the BREIN Foundation, along with several Internet Access Providers (hereafter: the Parties) in the Website Blocking Covenant. The Covenant came into being with active facilitating from the Dutch Minister for Legal Protection and the Minister of Economic Affairs and Climate Policy. The question was set out to the Parties if there was a possibility to come to an agreement on website blocking, to which the Parties complied. The Covenant...
[NL] Report for Government on the regulation of deepfake technology
On 5 January 2022, the Wetenschappelijk Onderzoek- en Documentatiecentrum (Research and Documentation Centre), of the Dutch Ministry of Justice and Security (WODC), published an important report on the legal challenges of deepfake technology. The report was sent to Parliament on 17 January 2022, along with a letter, from the Minister for Legal Protection (male), stating that the Cabinet had commissioned the research because of concerns about the rapid development and spread of deepfake technology. The study, carried out by researchers from Tilburg University, aims to inform the Government about...
[NL] National Competition Authority announces extensive investigation into merger between RTL and Talpa
On 28 January 2022, the Autoriteit Consument en Markt (Netherlands Authority for Consumer and Markets) (ACM) announced an "extensive investigation" into the proposed merger between media companies the RTL Group – active in the Netherlands through its subsidiary RTL Nederland – and the Talpa Network. RTL Nederland is a television broadcaster, content producer, and provider of video on-demand services. Talpa Network is a radio and television broadcaster, operator of various online platforms, and publisher of magazines and games. The intended acquisition of Talpa by RTL...
Russian Federation
[RU] Criminal liability for “false reports” and “harmful calls” expanded
On 4 March 2022, both chambers of the Russian parliament adopted and submitted, for the President’s signature, amendments to the criminal law. On the same day, the President signed the amendments into law. The Criminal Code of Russia (see IRIS 2020-6/6) now has three new articles. Article 207-3 introduces liability for “public dissemination of knowingly false information on the use of the Armed Forces of the Russian Federation in the interests of the protection of the Russian Federation and its citizens, and the sustainability of international peace and security”. The...
[RU] Limiting freedom of the media in times of war
On 24 February, Russia's media watchdog, Roskomnadzor (see IRIS 2012-8/36), issued a general instruction to all media outlets, when reporting on the "special operation" in Ukraine, to use information only from official Russian sources. It reported, that “in recent hours, the number of cases of dissemination by the media and other information resources operating on the Internet of unverified and unreliable information has significantly increased.” This general warning, in particular, referred to Article 49 (“Duties of a Journalist”) of the 1991 Statute...
Ukraine
[UA] Limiting freedom of information in times of war
On 3 March 2022, Ukraine’s parliament, the Supreme Rada, adopted a set of 14 laws that aim to counteract Russian aggression. They include two laws that envision amendments and additions to the current legislation on information activity. The laws are currently with the President of Ukraine to be published and enforced by him. Among the envisioned changes is the ban on print and broadcast mass media justifying or legitimising a denial of the armed aggression of the Russian Federation in Ukraine which began in 2014, in particular through its representation as “an internal conflict”,...
