IRIS newsletter 2022-8
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 • 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 • Glenn Ford • Claire Windsor
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2022 European Audiovisual Observatory, Strasbourg (France)
Summer is practically over and unfortunately there is no good news from Ukraine’s Eastern front, where war is still raging on. As a side effect of this terrible conflict, some recent legal developments have a direct impact on the European media sector.
Concerning legislation, an amendment to the Statute of Ukraine “On culture” has introduced certain restrictions for music and videos from Russian artists, while in Russia, recent amendments to media laws include restrictions against foreign media in Russia and the possibility to close down media outlets without a court decision.
Regarding case law, the EU’s General Court has dismissed the Russian-controlled RT France’s action to annul the Decision and Regulation of the Council of European Union on which EU’s sanctions against Russian propaganda media outlets are based. Also, the European Court of Human Rights (ECtHR) has found a gross and systemic violation by the Russian state of the right to freedom of association in combination with the right to freedom of expression and information following complaints by 73 NGOs. This last judgment, however, has to be seen in the light of the Russian Federation ceasing to be a High Contracting Party to the ECHR from 16 September 2022 onwards. The ECtHR remains competent to deal with applications in relation to issues which occurred before that date, and the Committee of Ministers will continue to supervise the execution of judgments finding violations of the ECHR by the Russian Federation, albeit with a lack of instruments for enforcement.
On a less dramatic but very important issue, two important developments regarding public-service broadcasting happened around the summer break. In Germany, the heads of government of the German Länder (federal states) agreed to reform the remit and structure of public broadcasting, whereas in France, the television licence fee that funds French public broadcasters and the Institut national de l'audiovisuel was definitively abolished after the Constitutional Council ruled that this abolition conformed with the Constitution.
This and many other interesting news await you inside this month’s newsletter.
We wish you a nice return to business!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Ecodefence and others v. Russia
On 14 June 2022, the European Court of Human Rights (ECtHR) delivered a judgment finding a gross and systemic violation by the Russian state of the right to freedom of association in combination with the right to freedom of expression and information as protected by Articles 11 and 10 of the European Convention on Human Rights (ECHR). The complaints by 73 non-governmental organisations (NGOs), formulated in 61 applications, all concerned the 2012 Foreign Agents Act. The ECtHR found the restrictions imposed by the Russian authorities on the NGOs which had been categorised as “foreign...
EU: European Commission
Commission urges numerous member states to implement EU copyright directives
On 15 July 2022, the European Commission announced that it had sent reasoned opinions to Czechia for failure to provide information about the transposition of two copyright Directives, namely Directive 2019/789 on copyright and related rights applicable to certain online transmissions (SatCab II Directive) (see IRIS 2019-5/3), and Directive 2019/790 on copyright in the Digital Single Market (DSM Directive) (see IRIS 2019-4/5). Further, on 19 May 2022, the Commission sent reasoned opinions to 10 Member States (Bulgaria, Cyprus, Greece, Ireland, Latvia, Poland, Portugal, Slovenia, Slovakia and Finland)...
General Court judgment T-125/22 dismissing RT France's action for annulment of the Council's (EU) decision and regulation prohibiting broadcasting activities
The broadcaster, “Russia Today France” (RT France), asked the General Court to annul the Decision 2022/351 and Regulation 2022/350 of the Council of European Union (see IRIS 2022-3/6). The Decision and Regulation followed the Russian invasion of Ukraine and prohibited “operators to broadcast or to enable, facilitate or otherwise contribute to broadcast, any content by the legal persons, entities or bodies listed in Annex XV”, including RT France. Further to the hearing of 10 June 2022, the General Court gave its judgment on 27 July 2022 and dismissed RT France’s...
[AT] Film aid: new incentive scheme for Austrian film producers
The Austrian federal government has announced that a new incentive scheme for film producers will be introduced on 1 January 2023, with the aim of strengthening Austria’s position as a film location. As a result, the existing film funding model will be restructured and streaming productions will be included for the first time. The proposed model offers automatic, non-repayable subsidies worth up to 35% of film production expenditure in Austria, granted in accordance with a list of criteria and of which 5% is subject to environmental criteria. A maximum of EUR 5 million will be payable for...
[BG] Amendments to the criminal code concerning computer-related crimes, crimes against the intellectual and industrial property, and online child abuse
On 7 July 2022, Закон за изменение и допълнение на Наказателния кодекс (Act for Amendment and Supplement to the Criminal Code – the Act) was promulgated in the State Gazette. The amendments to the existing legal framework are in the field of computer-related crimes (including cybercrime and crimes against critical infrastructure), the crimes against intellectual and industrial property, and plagiarism, as well as the crimes against online child sexual exploitation. The amendments can be narrowed down to changes expanding the minimum and maximum thresholds for imprisonment for the described...
[BG] Draft Code of Conduct for the Protection of Children
On 8 June 2022, Съветът за електронни медии (the Council for Electronic Media – CEM) has initiated a public consultation on a Проект на Кодекс за поведение относно меркие за оценка, означаване и ограничаване на достъпа до предавания, които са неблагоприятни или създават опасност от увреждане на физическото, психическото, нравственото и/или социалното развитие на децата (Draft Code of Conduct on Measures to Assess, Label and Restrict Access to Programmes which are Harmful or Pose a Risk to Affect Adversely the Physical, Mental, Moral and/or Social Development of Children – the...
[CZ] Bill on video-sharing platforms
The Parliament of the Czech Republic has adopted a bill on video-sharing platforms which simultaneously amends the Law on Radio and Television Broadcasting and the Law on On-Demand Audiovisual Media Services. The Act implements, into the Czech legal system, the provisions of Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018, which amends Directive 2010/13/EU on the coordination of certain legal and administrative regulations of the member states governing the provision of audiovisual media services (Audiovisual Media Services Directive) with regard to the...
[DE] Federal state governments agree German public broadcasting reforms
On 2 June 2022, the heads of government of the German Länder (federal states) agreed to reform the remit and structure of public broadcasting in Germany through the Dritte Staatsvertrag zur Änderung medienrechtlicher Staatsverträge (third state treaty amending the state media treaties, 3. MÄndStV), which deals in particular with the definition of the public service remit, programming flexibility, the further development of public broadcasters’ online mandate and the strengthening of their supervisory bodies. In concrete terms, the latest reforms extend the public service...
[DE] KJM approves age verification systems based on biometric age checks for the first time
The Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM), the central organ of the 14 German Landesmedienanstalten (state media authorities) responsible for the protection of young people in the media, has, for the first time, approved three age verification systems that do not rely on identity documents but use biometric age estimation software based on machine learning. The three systems can therefore be used in the future because they meet the requirements of the German Jugendmedienschutz-Staatsvertrag (State Treaty on the Protection...
[DE] Second state media treaty amendment enters into force
On 30 June 2022, the amendments to the Medienstaatsvertrag (state media treaty, MStV) that were brought in under the Zweite Medienänderungsstaatsvertrag (second state treaty amending the state media treaty, 2. MÄndStV) entered into force following their ratification by the parliaments of the 16 German Länder (federal states). The amendments are mainly designed to implement Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services and further strengthen the provisions of the MStV, aimed at...
[DK] Draft bill for a Danish Act on Cultural Contribution with 6% revenue payment from VOD services
The Audiovisual Media Services Directive (AVMSD) provides the basis for EU member states’ efforts to ensure that media services in their jurisdictions contribute to equality and accessibility. Thus, the AVMSD allows a member state to impose financial obligations on media service providers (linear and non-linear) established in both their territory and in other member states that target its territory. The European Audiovisual Observatory’s May 2022 report “Investing in European works: the obligations on VOD providers” describes...
[ES] New General Law on Audiovisual Communication followed by public consultations
Following the approval of the new General Law on Audiovisual Communication in the Spanish Congress in May 2022 (see IRIS 2022-6/1), it was passed without changes by the Senate and published in the Boletín Oficial del Estado (Offical State Gazette — BOE) on 8 July 2022. This milestone culminates the transposition of the Audiovisual Media Services Directive (AVMSD) into national legislation. The new law aims at adopting an updated legal framework, reflecting market developments and striking a balance between access to content, user protection and competition between providers in the...
[ES] Ruling against Spanish Football League piracy
The National Professional Football League and the pay-TV service Movistar Plus+ have won a lawsuit filed by both entities to prevent the piracy of content from the National League Championship, known as LaLiga, managed by the former organism. Telefónica, the telecom company that owns Movistar Plus+, has shared part of the ruling of Barcelona’s Commercial Court No. 9 of 25 July 2022, which empowers the operator to block websites that facilitate piracy. This court decision came into force a few days before the start of the championship, whose first match day took place on 12 August;...
[FR] Abolition of TV licence fee conditionally approved by Constitutional Council
Under the Loi de finances rectificative pour 2022 (Amended Finance Law for 2022, law no. 2022-1157 of 16 August 2022), the television licence fee that funds French public broadcasters (France Télévisions, Arte-France, Radio France, RFO, RFI) and the Institut national de l'audiovisuel (National Audiovisual Institute) was abolished. The EUR 138 fee (EUR 88 in the French overseas territories) was paid by every taxable household and brought in EUR 3.7 billion to the state each year. It will be replaced by a percentage of VAT revenue until the end of 2024. In particular, Article 6...
[FR] Conseil d’Etat rejects appeals against EUR 200 000 fine imposed by CSA against CNews
Following the broadcast of the programme “Face à l'info” on CNews on 20 September 2020, the Conseil Supérieur de l'Audiovisuel (French audiovisual regulatory body – CSA) (now ARCOM) fined the broadcaster EUR 200,000 pursuant to Article 42-1 of the Law of 30 September 1986 after the political commentator Eric Zemmour said several times on air that foreign “unaccompanied minors” were “for the most part”, “thieves”, “rapists” and “murderers”. Eric Zemmour and the broadcaster both asked the Conseil d’Etat...
[FR] Reporters Without Borders constitutionality application rejected
The Reporters Without Borders organisation asked the Conseil d’Etat (Council of State) to annul a decision of 5 April 2022 in which the Autorité de régulation de la communication audiovisuelle et numérique (Regulatory Authority for Audiovisual and Digital Communication – ARCOM) had rejected its request to issue a formal notice to the broadcaster CNews pursuant to Article 42 of the Law of 30 September 1986. Reporters Without Borders requested that the Constitutional Council should verify the constitutionality of Articles 3-1, 13 and 42 of the law. It argued that,...
[GB] The Intellectual Property Enterprise Court determines that the ‘Del Boy’ character in Only Fools and Horses can be protected under copyright as a literary work
The Intellectual Property Enterprise Court (IPEC) has determined that a dining experience company, Only Fools The (cushty) Dining Experience and other associated defendants (collectively referred to as the Dining Experience) had borrowed characters and features from the successful Only Fools and Horses TV comedy series (OFAH) thus infringing its copyright. Further, the IPEC determined that the character of ‘Del Boy’ was a literary work and the Dining Experience had infringed its copyright by using many distinctive characteristics. This is the first time in the UK that copyright has...
[GB] Broadcasters allowed to film from Crown Court sentencing hearings in England and Wales
Following a successful pilot scheme, authorised broadcast news channels are now able to air judges’ sentencing hearings in Crown Courts across England and Wales. Crown Courts handle serious criminal cases (like murder and rape) and appeals from magistrates’ courts. They usually consist of a jury who decides on issues of guilt and a judge who is responsible for sentencing. Further guidance on broadcasting sentencing remarks was published by Her Majesty’s Courts and Tribunals Service (HMCTS) on 27 July 2022. This is a further step towards the modernisation of the courts, including...
[IT] AGCOM releases its performance plan for the years 2022–2024
On 1 July 2022, through Resolution No. 225/22/CONS, the Italian Communications Authority (“AGCOM”) published its performance plan for the years 2022–2024 (“Performance Plan”), which sets forth its strategic goals for the next three years, as well as annual targets for the actions designed to achieve those goals. It is notable that the Performance Plan sets out said strategic goals and annual targets taking into account (i) for the first time, the outcomes of a public consultation and (ii) powers recently granted to AGCOM; changes arising from the transposition of several...
[IT] AGCOM fines a video sharing platform (Youtube) for the first time
With decisions nn. 275/22/CONS and 288/22/CONS published on 4 August 2022, AGCOM issued severe penalties against a website (Top Ads Ltd) and, for the first time, the video-sharing platform YouTube with a "notice and take down" order for 625 instances of illegal content and a "notice and stay down" order for prohibited gambling advertising of similar unlawful content. The investigation conducted by the Italian Authority found a violation of Article 9 of the Italian decree-law n°. 87/218 prohibiting direct and indirect gambling advertising (advertising for games with...
[MT] State Broadcaster and Broadcasting Authority fined by Court
The First Hall Civil Court, sitting in its Constitutional Jurisdiction, delivered judgement in the case filed by the Nationalist Party against the State Broadcaster (PBS) and the Broadcasting Authority (BA). The Nationalist Party sought redress from the Courts of Law following a ruling by the regulator directing the state broadcaster to grant a right of reply to the plaintiff following a feature on a magazine programme which was deemed to be too political in nature and warranted a reaction from the party in opposition. Despite this decision, the state broadcaster refused to broadcast the...
[NL] New Bill requiring major streaming platforms to invest in Dutch productions
On 18 July 2022, the State Secretary for Culture and Media (Staatssecretaris Cultuur en Media) introduced a new Bill to the Lower House of Parliament (Tweede Kamer), which will amend the Media Act (Mediawet) 2008, and impose an obligation on major streaming platforms to invest in Dutch audiovisual productions. The State Secretary also announced in a Letter to Parliament a series of new measures to strengthen the Dutch audiovisual sector. Crucially, a new Article 3.29e will be inserted into the Media Act, requiring providers of on-demand audiovisual media services to invest in Dutch audiovisual...
[NL] New government measures to protect media freedom and safety
On 29 June 2022, the State Secretary for Culture and Media (Staatssecretaris Cultuur en Media) and Minister for Justice and Security (Minister van Justitie en Veiligheid) announced a series of new measures to protect press freedom and safety in the Netherlands. The new measures are contained in a Letter to Parliament, and follow the publication of three reports on press freedom and safety of journalists in the Netherlands by Reporters Without Borders, Media Freedom Rapid Response, and the Netherlands Institute for Human Rights (College voor de Rechten van de Mens), which are referenced in the Letter. ...
[PL] Work on the law on professional artists
Legislative work on the Law on Professional Artists is nearing completion. A new draft has been published on the pages of the Government Legislation Centre. The draft is expected to go to the Parliament (Sejm) in the near future. The aim of the draft is to provide the lowest-earning artists with a subsistence minimum. Among other things, the draft provides for a surcharge on mandatory social and health insurance premiums. The surcharge is to be a social benefit. Funds for the surcharge are to come from the reprographic fee. This fee has been in operation in Poland since 1994 and is collected...
[PL] New obligations on owners of media or advertising media for medical devices
The new Polish Law on Medical Devices has come into force., repealing the previous Medical Devices Act of 2010. The new law has been issued in connection with EU Regulation 2017/745. An EU Regulation is a legal act of the European Union that becomes immediately enforceable as law in all member states simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into national law. However, it leaves the issues of advertising and administrative penalties, among others, to be regulated by the member states. The entry into force of the above-mentioned...
[RO] Promulgation of the modified audiovisual and cinematography legislation
On 28 June 2022, the President of Romania, Klaus Iohannis, promulgated the Law for the amendment and completion of the Audiovisual Law no. 504/2002; the amendment and completion of the Government Ordinance no. 39/2005 on cinematography; as well as the amendment of Law no. 41/1994 regarding the organisation and operation of the Romanian Radio Broadcasting Company and the Romanian Television Company (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, IRIS 2019-5/22...
[RO] The News România TV station loses its licence
The Romanian commercial News România TV station has lost its licence. The National Audiovisual Council (CNA) did not extend the audiovisual licence of the audiovisual service due to repeated breaches of the Audiovisual Law no. 504/2002 (see inter alia IRIS 2013-3/25, IRIS 2014-3/38 and IRIS 2014-1/39). Following the analysis of the documents presented by the Licensing Office and the Monitoring Department of the CNA, and on hearing the representative of the company invited to participate in the meeting, the members of the Council found insufficient argument in support of the request for...
[RU] New legal instruments against foreign media
On 30 June 2022, the State Duma of the Federal Assembly of the Russian Federation adopted the Federal Statute “On amendments to certain legal acts of the Russian Federation” that provides important changes in the media law, in particular in relation to foreign media in Russia. An additional Article 3.4 was introduced to the Federal Statute No. 272-FZ of 28 December 2012 “On measures to influence persons involved in violations of fundamental human rights and freedoms, the rights and freedoms of citizens of the Russian Federation” (О мерах воздействия на лиц, причастных...
[UA] List of foreign programmes for rebroadcasting
At a meeting on 15 September 2022, the audiovisual media regulator of Ukraine, the National Council on Television and Radio Broadcasting (NCTRB), approved a new “List of programmes of foreign television and radio organisations that are rebroadcast” and published it on its official website. The basis for making the list was an earlier decision of the NCTRB that established, for the first time, the procedures for compiling this document, which had been envisioned by the amendments to Article 42 of the Statute on Television and Radio Broadcasting, adopted in 2015 (see IRIS 2015-7/30)....
[UA] Statute to further restrict Russian audiovisual works
On 7 October 2022, the Statute of Ukraine “On amendments to certain laws of Ukraine to support the national musical product and restrict the use of the musical product of the aggressor state in public” enters into force. The law was adopted on 19 June 2022 by the Supreme Rada (the Parliament) and signed into law by the President. The key amendment is made to the Statute of Ukraine “On culture” (2011). It adds a new part to Article 15. It prohibits public performance, public display and/or public exhibition, including online availability in the territory of Ukraine,...