IRIS newsletter 2022-9
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 • Brigitte Auel • 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)
On 16 September 2022, the European Commission presented the highly awaited proposal for a European Media Freedom Act (EMFA). The EMFA proposal lays down a common framework in the internal market to protect media pluralism and editorial independence and ensure a common level of safety for the media industry. This is a topic that the Observatory will be surely following in the coming months.
As highlighted by EU Commissioner Breton when announcing the EMFA proposal on Twitter, “information is not like any other good”. At the same time, it should be borne in mind that the fundamental freedom of expression and information is not an absolute but rather a so-called qualified right, that is, a right that permits interference subject to various conditions. Said otherwise, while freedom of expression may be restricted, there must be good reasons for it. The restrictive measures on Russia Today and Sputnik are a good example of this, with the EU General Court confirming their validity recently. And yet, as reported in the present newsletter, a Dutch coalition of ISPs and media organisations has applied to the Court of Justice of the European Union (CJEU) seeking annulment of the same restrictive measures. Given the importance of the issue at hand, it would not be surprising if one or the other of these cases reach the doors of the European Court of Human Rights (ECtHR) in Strasbourg. While waiting to see if this materialises, two recent ECtHR judgments reported in the present newsletter prove how important and difficult its work is: one walks the line between permissible political satire and unlawful sexist hate speech, while the other one confirms, and further elaborates, the guarantees for the protection of journalistic sources.
This and many other interesting news items await you inside this month’s newsletter.
Have a nice read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Patrício Monteiro Telo de Abreu v. Portugal
A recent judgment of the European Court of Human Rights (ECtHR) walks the line between permissible political satire and unlawful sexist hate speech. The ECtHR found that the criminal conviction of a blogger for a series of cartoons that echoed sexist stereotypes amounted to a violation of the blogger’s right to freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). The ECtHR concluded unanimously that the cartoons in essence referred to an ongoing political debate, criticizing the municipal leadership. In spite of the sexual stereotyping of one...
European Court of Human Rights: Sergey Sorokin v. Russia
The European Court of Human Rights (ECtHR) delivered a judgment on 30 August 2022 confirming, and further elaborating, the guarantees for the protection of journalistic sources under Article 10 of the European Convention on Human Rights (ECHR). The ECtHR concluded, unanimously, that the search of a journalist’s flat and the seizure of his electronic devices containing his professional information amounted to a violation of Article 10 ECHR. The ECtHR emphasised the lack of assessment of the necessity and proportionality of the investigating authorities’ actions. It found in particular...
EU: European Commission
European Commission: Proposal for a European Media Freedom Act (EMFA)
As announced in September 2021 by the President of the European Commission Ursula von der Leyen in her State of the Union Speech: “Media companies cannot be treated as just another business. Their independence is essential. Europe needs a law that safeguards this independence - and the Commission will deliver a Media Freedom Act in the next year”. A proposal for a Regulation establishing a common framework for media services in the internal market (Media Freedom Act — EMFA) was released by the European Commission on 16 September 2022. The EMFA proposal lays down a common...
Dutch coalition of ISPs and media organisations initiate proceedings against EU Council over RT broadcasting ban
On 18 July 2022, the application by a Dutch coalition of ISPs and media organisations to the Court of Justice of the European Union (CJEU) seeking annulment of the Council of the European Union’s recent bans on Russia Today and Sputnik (see IRIS 2022-3/6), was published in the Official Journal of the European Union. The applicants in the case are three Dutch ISPs - A2B Connect, BIT, and Freedom Internet – and they are supported by the Freedom of Information Coalition, which includes the Nederlandse Vereniging van Journalisten (Dutch Association of Journalists) and the Persvrijheidsfonds...
[BE] Belgian news site Apache acquitted of stalking and breach of privacy in SLAPP-case Antwerp Court of Appeal condemns applicant civil party for abuse of process
A judgment of the Antwerp Court of Appeal of 9 June 2022 offers strong support for investigative journalism on issues of public interest, while at the same time acknowledging the detrimental impact of SLAPPs (Strategic Litigation Against Public Participation). The case concerned a complaint by project developer Erik Van der Paal against a journalist of the news site Apache and its chief editor. The chief editor, Karl van den Broeck, and Apache journalist Stef Arends were accused of having stalked Erik Van der Paal of the NV Land Invest Group (Section 422bis Criminal Code) and of violating the...
[DE] Berlin-Brandenburg court rules on obligation to explain broadcast time restrictions
In a decision of 8 August 2022 (case no. OVG 11 N 64.18), the Berlin-Brandenburg Oberverwaltungsgericht (Higher Administrative Court – OVG) ruled that reasons must be provided for a decision restricting the time a programme could be broadcast on account of youth protection infringements. The dispute followed an objection by the Medienanstalt Berlin-Brandenburg (Berlin-Brandenburg media authority – mabb) against the television broadcaster ProSieben. ProSieben appealed to the courts against the objection and won. In the latest decision, the OVG Berlin-Brandenburg upheld the first-instance...
[DE] Criminal liability for distribution of Nazi videos via WhatsApp status
In a ruling of 6 January 2022 (case no. 907 Ds 6111 Js 250180/19), the Amtsgericht Frankfurt am Main (Frankfurt am Main District Court) decided that the distribution of videos promoting Nazi ideology and images from the Nazi era via WhatsApp status constituted the punishable offence of incitement of the masses. It fined the defendant EUR 750. In 2019, the accused uploaded to his WhatsApp status a video that could be viewed for a period of 24 hours by anyone who had saved his phone number at the time on a device suitable for installing WhatsApp and had WhatsApp installed on that device. The first...
[DE] Cypriot pornographic website ban confirmed
On 7 September 2022 (case nos. 13 B 1911/21, 13 B 1912/21 and 13 B 1913/21), the North-Rhine Westphalia Oberverwaltungsgericht (Higher Administrative Court) prohibited the distribution of pornographic content by two Cypriot website providers. It therefore confirmed first-instance rulings issued by the Verwaltungsgericht Düsseldorf (Düsseldorf Administrative Court) on 30 November 2021 (case no. 27 L 1414/20). The importance of protecting minors was the main factor behind the court’s decision. According to the first-instance rulings, the Landesanstalt für Medien Nordrhein-Westfalen...
[DE] German digital strategy adopted
The German federal government adopted a new digital strategy on 31 August 2022. The strategy is designed to boost the digital transformation in Germany, where many sectors of state government and administration, civil society, industry, education and science are lagging behind with digital technology and hampered by an outdated analogue infrastructure and especially slow data transfer networks. The digital strategy therefore contains objectives and proposals for a “digital awakening” in various policy areas that are divided into three categories: (1) connected society and digital sovereignty,...
[EE] Estonia: Implementation of new rules on accessibility of products and services
The recently enacted Products and Services Accessibility Act (Toodete ja teenuste ligipääsetavuse seadus — LPS) transposes the EU Directive on that subject. The law applies to traders who manufacture, import or distribute products, and to service providers that offer services falling within the scope of the law. These products and services include, for example, e-readers, payment terminals, ticket machines, check-in machines, cash or payment machines, self-service terminals, computer hardware and operating systems, terminal equipment with interactive computing capabilities, e-commerce...
Temporary authorisation for televised cinema ads extended for 18 months
Based on Articles 27 and 33 of the Law of 30 September 1986, the decree of 3 October 2022 extends the temporary authorisation of television advertising for the cinema sector by 18 months, postponing its expiry from 6 October 2022 to 6 April 2024 on account of the unusual nature of the period since authorisation was granted, which has rendered it impossible to fully assess the consequences of the measure. Initially introduced under the decree of 5 August 2020 (until 6 February 2022), the authorisation had already been extended through Article 10 of decree no. 2021-1922 of 30 December 2021 to...
[FR] Clarification on ‘political personalities’ whose speaking time in audiovisual media must be measured
The Canal Plus group and the company C8 asked the Conseil d’Etat (Council of State) to annul the decision taken on 3 March 2021 by the Conseil supérieur de l'audiovisuel (French audiovisual regulatory body — CSA, replaced by the Autorité de régulation de la communication audiovisuelle et numérique on 1 January 2022), asking providers of audiovisual communication services to “measure all the speaking time in audiovisual media” of A... B..., Nicolas Hulot, Laurent Joffrin, Arnaud Montebourg and Manuel Valls. The Conseil d’Etat pointed...
[FR] TF1-M6 merger abandoned
On 16 September, Bouygues, RTL Group, TF1 and the M6 group announced that the proposed merger between the TF1 and M6 groups, announced on 17 May 2021, had been abandoned. The merger would have brought seven free-to-air DTT channels (TF1, M6, TMC, W9, Gulli, LCI and TF1 Séries Films) within the same group. The decision comes after the parties were questioned by the board of the Autorité de la concurrence (French competition authority) on 5 and 6 September. Following an in-depth examination, the competition authority noted that television remained a very powerful medium for the French...
[GB] Sky News broadcasts about a convicted criminal did not constitute an unwarranted infringement of his privacy
Ofcom has held that Sky News had not undertaken an unwarranted infringement of privacy in relation to two broadcasts concerning the release of a notorious convicted conman, Mr Mark Acklom, by showing a pixelated photograph of himself with his family and another picture taken on an aircraft. Applying Ofcom rules, and having considered Article 8 of the European Convention on Human Rights, the regulator’s determination balanced Mr Acklom’s right to privacy against Sky’s freedom of expression to report matters in the public interest, and on balance, in the particular circumstances,...
[IT] Communications authority launches two public consultations on draft regulations, and related guidelines, concerning the Italian implementation of Articles 15 and 17 of the DSMCD
AGCOM has launched the first public consultation in the context of the adoption of the package of regulations to implement the legislation that transposed Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSMCD). The consultation concerns the draft regulation for the identification of the reference criteria to quantify the remuneration for the online use of press publications referred to in Article 43-bis of Law of 22 April 1941, no. 633 (Copyright Law). Such provision transposes Article 15 DSMCD, introducing a new, related right for publishers covering the online...
[LV] New amendments to the Latvian Electronic Mass Media Law enter into force.
On 24 September 2022 amendments to the Electronic Mass Media Law entered into force. The purpose of the amendments is to strengthen the safety and protection of the Latvian information space and to promote greater transparency on the identity of the real beneficiaries of electronic mass media to prevent the possibility of hidden influence. Specifically, the new amendments prohibit issuing broadcasting permits for television programmes that are excluded from the list of audio and audiovisual programmes to be rebroadcasted in Latvia on the basis that the country of jurisdiction of the programme...
[NL] Court of Appeal acquits two rappers of incitement to violence over YouTube music video
On 25 August 2022, the Hof Amsterdam (Amsterdam Court of Appeal) acquitted on appeal two "drill" rappers who had been convicted in 2021 of incitement to violence in relation to a music video. Drill - slang for "shooting music" - is a subgenre of hip-hop that originated in Chicago and is characterised by its focus on anger and violence. It was the first time in the Netherlands that rappers have been prosecuted and convicted purely for violent lyrics. The video for a song called "Intensive Care" had been uploaded to YouTube in July 2020, two months after a five-second...
[NL] Court of Appeal upholds public broadcaster’s editorial freedom to criticise public figures
On 19 July 2022, the Gerechtshof Arnhem-Leeuwarden (Arnhem-Leeuwarden Court of Appeal) delivered an important judgment, upholding an earlier lower-court judgment on the media standards applicable to news and opinion websites operated by public broadcasters (see IRIS 2021-10/21). Notably, the Court upheld important principles on the freedom of public broadcasters to criticise public figures, and refused to order a rectification against a public broadcaster sought by a public figure over various online articles. The case involved a well-known Dutch activist who campaigned against Covid-19 measures...
[PL] Recommendations of the President of UOKiK concerning the tagging, by influencers, of advertising content on social media
The Office of Competition and Consumer Protection in Poland (UOKiK) has recently released the long-awaited "Recommendations of the President of UOKiK concerning the tagging, by influencers, of advertising content on social media". The proper tagging of sponsored content on social media has raised quite a lot of questions. So far, the most difficult issues have been drawing the line between the subjective opinions of social media users and paid communications, as well as the transparent forms of tagging commercial collaborations. In order to develop clear guidelines for the...
[UA] Concept of PSM during wartime adopted
The Supervision Council of the joint stock company the National Public Television and Radio Broadcasting Company of Ukraine (NSTU) has approved a new edition of the broadcasting concept for regional branches of the public service broadcaster. The key revision lies in the need to take account of and adapt the broadcasting policies in response to the current full-scale war in Ukraine. The public broadcaster was established by the Statute “On Public Television and Radio Broadcasting of Ukraine”, which entered into force on 15 May 2014. Civil society representatives form the majority...