IRIS newsletter 2022-4
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 • Claire Windsor
Web Design:
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
ISSN 2078-6158
© 2022 European Audiovisual Observatory, Strasbourg (France)
Editorial
One month has passed, and war is still raging in Ukraine. One of many unfortunate consequences of this dreadful event is that the Russian Federation is no longer a member state of the Council of Europe, or of the European Audiovisual Observatory. Despite this, the IRIS newsletter continues, and will continue, to report on legal issues concerning Russia in so far as they are of interest for the audiovisual sector and for our members, as you can see in the present newsletter: in the UK, following 29 investigations, the media regulator Ofcom has revoked the broadcasting licences of RT’s licensee ANO TV Novosti, considering it not a fit and proper broadcaster given the regulator’s immediate concerns about its compliance with due impartiality rules; In Germany, the Berlin-Brandenburg media authority decided to threaten RT DE with a fine if it did not cease broadcasting in Germany. The European Court of Human Rights decided to apply an urgent interim measure concerning Novaya Gazeta, inviting the Russian authorities to abstain until further notice from actions and decisions aimed at full blocking and termination of its activities; in the Russian Federation, the Arbitration Court of the Kirov Region issued a judgment in a copyright case that could establish a trend or precedent in relation to how Western copyright holders are treated in Russia; and in Ukraine, the Commission on Journalistic Ethics dismissed a complaint concerning offensive language directed at a Russian warship on a TV programme.
Beyond our monthly reporting, the Observatory has recently published a note that discusses the legal and institutional framework behind the EU sanctions against the Russian state-owned channels RT and Sputnik. And at the same time, we have also released a new report that looks at the various aspects of governance of public service media and its role in safeguarding the independence of PSM.
Finally, as I wrote last month in these electronic pages, I can only express my solidarity with the victims of this terrible war, wishing that it ends soon, and a durable, just peace ensues.
More than ever, stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
International
COUNCIL OF EUROPE
CoE: Committee of Ministers
Council of Europe: Recommendation to promote a favourable environment for quality journalism in the digital age
On 17 March 2022, the Committee of Ministers adopted a Recommendation calling on States to promote a favourable environment for quality journalism in the digital age. The latter reflects, through a number of guidelines, the need to recognize and reward the value of quality journalism, shadowed by the advent of online platforms. The media sector has undergone significant digitalization in recent years, which has been beneficial in many ways (e.g..: to facilitate cross-border communication) but has also seriously disrupted the news business. Today, traditional media organizations are in daily...
Romania
European Court of Human Rights: I.V.Ț. v. Romania
The European Court of Human Rights (ECtHR) has delivered a judgment on the protection of minors when giving an interview on television, without parental consent. It found that the domestic courts had failed to protect a young girl’s private life as guaranteed by Article 8 of the European Convention on Human Rights (ECHR), emphasising the particular vulnerability of young people in such a context and the lack of prior consent by parents, relatives or teachers. In particular, the ECtHR came to the conclusion that the domestic courts had only superficially balanced the young girl’s...
Russian Federation
European Court of Human Rights: interim measure in ANO RID Novaya Gazeta and Others v. Russia
On 8 March 2022, the European Court of Human Rights (ECtHR) decided to apply an urgent interim measure in the case of ANO RID Novaya Gazeta and Others v. Russia. In the interests of the parties and the proper conduct of the proceedings before it, and having regard to the exceptional context of the war in Ukraine in which the request has been lodged, the ECtHR invited the Russian authorities, under Rule 39 of the Rules of Court, to abstain until further notice from actions and decisions aimed at full blocking and termination of the activities of Novaya Gazeta, and from other actions that in...
EUROPEAN UNION
Austria
Court of Justice of the EU: Case Austro-Mechana v Strato AG
On 24 March 2022, the Court of Justice of the EU (CJEU) delivered a judgment in Case C-433/20, in which it ruled that the ‘private copying’ exception included in Article 5(2)(b) of Directive 2001/29/EC applies to copies of works on a server in storage space made available to a user by the provider of a cloud computing service. However, Member States are not obliged to make the providers of cloud storage services subject to the payment of fair compensation under that exception, in so far as the payment of fair compensation to rightsholders is provided for in some other way. Austro-Mechana,...
EU: European Commission
Amazon’s acquisition of MGM approved by the European Commission
On 15 March 2022, the European Commission announced it had approved, under the EU Merger Regulation, Amazon.com Inc’s proposed acquisition of MGM, the well-known entertainment and studio production company. Notably, the Commission stated that the acquisition had been approved “unconditionally”, and would raise “no competition concerns” in the European Economic Area (EEA). Amazon.com Inc is a US-based multinational company which operates a range of businesses, including the online platform Amazon.com, the video-streaming service Prime Video, and is also active in...
EU: European Commission
Proposed European Declaration on Digital Rights and Principles
On 26 January 2022, the European Commission published an important proposal for a European Declaration on Digital Rights and Principles, designed to ensure that the rights and freedoms enshrined in the EU legal framework, and the European values expressed by the principles, are respected in the online environment. Importantly, the Declaration will take the form of a joint solemn declaration, to be signed by the European Parliament, the Council, and the Commission. The Commission has now invited the Parliament and Council to discuss the draft Declaration, and “endorse it at the highest level”...
Russian Federation
European Court of Justice rejects RT France’s urgent application for lifting of EU sanctions
In an order of 30 March 2022, the President of the General Court of the European Union rejected the application for interim measures submitted by RT France in case T-125/22 R (RT France/Council). On 1 March 2022, the Council of the European Union adopted a Decision pursuant to Article 29 of the Treaty on European Union and a Regulation pursuant to Article 215 of the Treaty on the Functioning of the European Union (TFEU) suspending the broadcasting activities of certain media, including RT France, in and towards the European Union (see IRIS 2022-3:1/6 and the Observatory’s note on this subject)....
NATIONAL
Switzerland
[CH] Swiss reject Media Support Act
In a referendum with a 44.13% turnout held on 13 February 2022, the Swiss population rejected, with a 54.56% majority, a Federal Act on a package of measures to benefit the media that had previously been adopted by the Swiss Parliament. As a result, the level of annual state aid for the media sector will remain at CHF 136 million. The package of measures would have provided an additional injection of around CHF 150 million per year. CHF 90 million per year had been earmarked for subscription-based newspaper delivery, instead of the current CHF 30 million. Trade union newspapers would have received...
[CH] Swiss vote to ban tobacco advertising aimed at children and young people
In a referendum with a 44.23% turnout held on 13 February 2022, the Swiss population approved the popular initiative “Yes to protecting children and young people from tobacco advertising (No tobacco ads for children and young people)” with a 56.61% majority. The initiative makes direct provision for an amendment of the Federal Constitution of the Swiss Confederation. In Chapter 3 (Social Objectives) of the Constitution, Article 41(1)(g) will stipulate that the Confederation and the cantons shall, “as a complement to personal responsibility and private initiative”, no...
Germany
[DE] 23rd KEF report confirms broadcasting fee until 2024 and defines needs-based funding
In its 23rd report, published on 18 February 2022, the Kommission zur Ermittlung des Finanzbedarfs der Rundfunkanstalten (Commission for Determining the Financial Requirements of Broadcasters – KEF) stated that Germany’s public broadcasters would receive the funding they needed if the public broadcasting fee was raised to EUR 18.36 per month for the 2021 to 2024 funding period. This adjustment had been recommended in the KEF’s 22nd report on 1 January 2021 and implemented by the Bundesverfassungsgericht (Federal Constitutional Court) in a decision of 20 July 2021. The KEF comprises...
[DE] Federal Constitutional Court refuses to examine partial prohibition of poem that insulted Turkish president
In a decision of 26 January 2022, the Bundesverfassungsgericht (Federal Constitutional Court – BVerfG), as the supreme guardian of fundamental rights in Germany, refused to accept a constitutional complaint by well-known German TV presenter Jan Böhmermann relating to a poem he had written, insulting the Turkish president. As a result, previous civil courts rulings, in which parts of the poem were declared unlawful, are now legally valid. The case, which attracted a high level of media attention in Germany after it triggered a general public debate on the limits of artistic freedom...
[DE] Federal Supreme Court rules on tribute show advertisement
In a ruling of 24 February 2022 (not yet published), the Bundesgerichtshof (Federal Supreme Court – BGH) examined the legal boundaries of advertising for a tribute show in which cover versions of an artist’s songs are performed. The case concerned whether an event at which a Tina Turner lookalike sings Tina Turner hits can be advertised in a way that might create the impression that Turner herself is involved in or at least supportive of the show. Tina Turner had filed a lawsuit against the producer of a show in which the singer F. performed Turner’s greatest hits, asking for...
[DE] Media regulators block pornography platform because of breaches of youth protection rules
On 2 March 2022, the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM), the German state media authorities’ central supervisory body for the protection of minors in private broadcasting and telemedia, issued a blocking order against the xHamster pornography portal on account of breaches of the Jugendmedienschutzstaatsvertrag (Interstate Treaty on the Protection of Minors in the Media – JMStV). As a result, the five largest German Internet providers were the first to be required to block access to the website “de.xhamster.com”...
[DE] mabb threatens to fine Russian broadcaster RT DE
In its long-running dispute with Russian broadcaster RT DE (previously known as Russia Today) (see IRIS 2022-2/19), the Medienanstalt Berlin-Brandenburg (Berlin-Brandenburg media authority – mabb), as the state media authority responsible, decided, against the background of the Russian Federation’s unjustified military aggression against Ukraine, to threaten RT DE Productions GmbH, provider of RT DE, with a fine of EUR 25 000 if it did not cease broadcasting the channel in Germany by 4 March 2022. With the RT DE livestream still available on various websites on 5 March 2022, the...
[DE] Cologne Administrative Court: new Network Enforcement Act provisions breach EU law
In a press release of 1 March 2022, concerning its decisions in cases brought by Google Ireland Ltd. and Meta Platforms Ireland Ltd, the Verwaltungsgericht Köln (Cologne Administrative Court – VG Köln) announced that the reporting obligations added to the Netzwerkdurchsetzungsgesetz (Network Enforcement Act – NetzDG) under Article 7 of the Gesetz zur besseren Bekämpfung des Rechtsextremismus und der Hasskriminalität (Act on improving the fight against right-wing extremism and hate crime), which entered into force on 1 February 2022, were inapplicable because they...
Estonia
[EE] A glimpse at Estonia’s new rules for audio-visual media services
For some time, Estonia has led the way when it comes to technological advancements and digital innovation. Therefore, its failure to transpose the Audio-Visual Media Services Directive (AVMSD) and the European Electronic Communications Code in a timely manner has brought the country into total disrepute. Media services are regulated by the Media Services Act (MSA), in force since 16 January 2011 (as amended). The implementation of the AVMSD was initially scheduled for May 2021. Finally, on 16th February 2022, the Act on Amendments to the Media Services Act and Amendments to Other...
Spain
[ES] conditions for the international commercialisation of the broadcasting rights of the Spanish football league under scrutiny
In September 2021, the Comisión Nacional de los Mercados y la Competencia (National Markets and Competition Commission — CNMC), the body that promotes and ensures the proper operation of all markets, issued three reports analysing the conditions proposed by the National Professional Football League (LNFP) for selling the broadcasting rights of the Campeonato Nacional de Liga de Primera División, known as La Liga, both in Spain and in international markets. In the case of Spain, the providers Movistar and DAZN have the broadcasting rights for this world renowned championship for...
France
[FR] Bouygues Group takeover of Métropole Télévision: appeal against French Competition Authority’s decision to investigate proposed merger rejected
In a press release published on 17 May 2021, the TF1, Métropole Télévision, Bouygues and RTL Groups announced that they had begun exclusive negotiations with a view to merging the activities of TF1 and Métropole Télévision (M6 Group). Following the merger, Bouygues would own 30% of the new company while the RTL Group would hold 16%. Free, a company active in the audiovisual content distribution market, and Iliad, its parent company, asked the Conseil d'Etat (State Council) to annul the French Competition Authority’s decision to investigate the...
[FR] ARCOM explains “legal offer” indexing mechanism
The Autorité de régulation de la communication audiovisuelle et numérique (Regulatory Authority for Audiovisual and Digital Communication – ARCOM), as part of its role in promoting and developing the so-called “legal offer” (a list of websites that comply with copyright laws, see Article 331-12 of the French Intellectual Property Code), is encouraged to “develop tools aimed at strengthening the public visibility and indexing of the legal offer and to annually publish indicators listed under a decree.” On 9 March 2022, ARCOM therefore adopted...
[FR] Benedetta film's "12" rating contested
On 2 September 2020, the Minister of Culture granted approval for Paul Verhoeven’s film “Benedetta” to be shown in cinemas to audiences over the age of 12, as recommended by the Film Classification Commission. The Pornostop organisation subsequently asked the minister to review the “12” rating given to the film, but did not receive a reply. It therefore asked the Paris Administrative Court to annul, on the grounds of misuse of power, the decision to reject its request that was implied by the Minister of Culture’s lack of response. It also asked the court to order...
United Kingdom
[GB] Ofcom determines RT’s licensee ANO TV Novosti is not a fit and proper broadcaster and revokes its licences to broadcast in the UK
Ofcom has revoked the licences of RT’s licensee ANO TV Novosti (the Licensee) to broadcast in the UK considering it not a fit and proper broadcaster given the regulator’s immediate concerns about its compliance with due impartiality rules. The decision came amidst 29 ongoing investigations by Ofcom into the due impartiality of RT’s news and current affairs coverage of Russia’s invasion of Ukraine. The volume and nature of the complaints in a short space of time caused great concern for Ofcom. Further, Ofcom assessed matters in the context of RT’s compliance history...
[GB] Advertising watchdog publishes report on tackling harmful racial and ethnic stereotyping in ads
On 3 February 2022, the UK’s regulator of advertising across all media, the Advertising Standards Authority (ASA), published its research in harmful racial and ethnic stereotyping in UK advertising. The survey highlighted a number of important issues that participant consumers raised about the depiction of people from different racial and ethnic backgrounds. Ads that are likely to cause serious or widespread offence and/or harm owing to particular portrayals of race and ethnicity have long been regulated under the UK Code of Non-broadcast Advertising (CAP Code) and the Code of Broadcast...
Croatia
[HR] New Electronic Media Act
The new Electronic Media Act entered into force on 21 October 2021, thus incorporating provisions of Directive (EU) 2018/1808 of the European Parliament and of the Council from 14 November 2018, into national legislation. A new obligation has been introduced in respect of advertisements for games of chance, stipulating - for the first time - that they must contain a message about the risk of developing gambling addiction and be marked with a visual symbol. Criteria for the advertisement of energy drinks were also stipulated. The Act stipulates ownership restrictions related to the protection...
Italy
[IT] AGCOM closed the proceeding to identify positions harmful to pluralism in the online advertising sector
With its decision no. 24/22/CONS of February 17, 2022, AGCOM has declared the procedure for determining the relevant market and the dominant position of companies in online advertising to be closed. This procedure started with Decision No. 356/19/CONS of 18 July 2019 (see IRIS 2019-9). The proceeding was established under Article 43, paragraph 2 of Legislative Decree No. 177/2005 (“the consolidated law on AVMS” or “ TUSMAR”) in force until 2021: according to this, the AGCOM had the power to investigate sectors of the so-called Sistema Integrato delle Comunicazioni (Integrated...
[IT] Implementation of a high-speed reporting channel for revenge porn victims
Legislative Decree No. 196/2003 (“Italian Data Protection Code”) has been recently amended. Specifically, Law Decree No. 139/2021 (as enacted and amended by Law No. 205/2021) introduced Section 144-bis, which provides a high-speed reporting system for revenge porn victims. Under Section 144-bis, part 1 of the Italian Data Protection Code, anyone, including minors over 14 years old, who has a well-founded reason to believe that audio recordings, images, videos or other IT documents with sexually explicit content concerning them, and intended to remain private, might be sent, delivered,...
Netherlands
[NL] Stop Online Shaming judgment requiring platform to remove user-generated videos posted without consent
On 16 February 2022, the Rechtbank Amsterdam (District Court of Amsterdam) delivered an important judgment regarding user-generated content posted without prior consent on video-platforms hosting adult content. The case was filed as a class action lawsuit instigated by Stichting Stop Online Shaming (Stop Online Shaming Foundation — SOS), representing the interests of victims of online privacy infringements, and Stichting Expertisebureau Online Kindermisbruik (Online Child Abuse Expertise Centre Foundation), concerned with preventing and countering (online) child abuse...
[NL] New Dutch regulatory collaboration involving Dutch Media Authority opens first joint-investigation
On 3 March 2022, the Commissariaat voor de Media (Dutch Media Authority) announced that the recently-established Digital Regulation Cooperation Platform (SDT) has opened its first investigation into effective online transparency and the use of internet users' data. The SDT is a first-ever regulatory collaboration between the Dutch Media Authority, Netherlands Authority for Consumers & Markets, the Dutch Data Protection Authority, and the Netherlands Authority for the Financial Markets. The SDT was established to strengthen the supervision of digital activities, and strengthen enforcement...
Portugal
[PT] Pirate TV - Court acquits 38 defendants for illegal set up of television boxes
On 18 January 2022, the Court of Coimbra decided to acquit 38 defendants in a case regarding the illegal set up of television boxes. The main defendant was an electrician, who had allegedly installed illegal television boxes and routersto enable users to unlawfully access broadcasting services, for a total of 37 clients. The panel of judges decided to acquit the electrician since it had not been proven that he had been paid for the service, nor that the handmade devices created and delivered by him had reduced or changed the services provided by “NOS” (a Portuguese...
Russian Federation
[RU] Copyright claims dismissed because of “Western sanctions”
On 3 March 2022, the Arbitration Court of the Kirov Region issued a judgment in the case of Entertainment One UK Ltd vs. Kozhevnikov Ivan Vladimirovich (an individual entrepreneur). The lawsuit was filed on 9 September 2021, when the claimant demanded RUB 40 000 (then EUR 500) for copyright violations, by the respondent, of the exclusive rights for the use of trademarks Peppa Pig and Daddy Pig through illegal reproduction of their images. The court dismissed the claims. It found that although in the Russian Federation foreign entities enjoyed the same rights as Russian ones (part 1 of Article...
Ukraine
[UA] Profane language permissible in specific context
On 9 March 2022, the Commission on Journalistic Ethics, a board of 15 people elected by the signatories of the Code of Ethics of Ukrainian Journalists, adopted a decision on a complaint it had received, on 1 March 2022, from citizen Serhii Hordyshev in relation to a programme aired that day by Channel 5 (a private, national network). A newscast had text overlaying the video on the lower third, saying “Russian warship, go f*ck yourself”. The Commission reviewed the complaint without the respondent's presence and decided to dismiss it. Article 15 of the Code of Ethics of Ukrainian...
