IRIS newsletter 2023-2
European Audiovisual Observatory
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Tel. : +33 (0) 3 90 21 60 00
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Executive Director: Susanne Nikoltchev
Maja Cappello, Editor • Francisco Javier Cabrera Blázquez, Sophie Valais, Amélie Lacourt, Justine Radel, Deputy Editors (European Audiovisual Observatory)
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 Amélie Lacourt• Aurélie Courtinat • Barbara Grokenberger • Glenn Ford • Claire Windsor
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2023 European Audiovisual Observatory, Strasbourg (France)
They say that variety is the spice of life. Now, if we were to apply that principle to the IRIS newsletter, we could say that the present issue is quite a savoury one. We have news of the AVMSD transposition in Ireland and Slovakia; the announcement of new funding for local public broadcasting and a new system of funding for local public broadcasting in the Netherlands; a French decree amending the system for the contribution to cinematographic and audiovisual production of television services; a decision from Germany’s competition regulator concluding the proceedings against Google News Showcase; and a couple of interesting judgments of the ECtHR. And if you like it piquant, we even have a judgment of the Italian Supreme Court of Cassation concerning the literary character “Zorro” in the context of a commercial.
Should this not be enough for you, there are many other interesting news items awaiting you inside this month’s very spicy newsletter.
Have a nice read!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: RTBF v. Belgium (no. 2)
For the second time, the public broadcasting organisation of the French Community in Belgium (Radio-télévision belge de la communauté française — RTBF) successfully invoked its right to freedom of expression before the European Court of Human Rights (ECtHR) (see also IRIS 2011-6/1). In view of the importance of the media in a democratic society, and of the domestic authorities’ limited margin of appreciation in respect of a television programme about a subject of considerable public interest, the ECtHR found that the Belgian courts had not balanced in a pertinent...
European Court of Human Rights: Zemmour v. France
The European Court of Human Rights (ECtHR) has once again confirmed the necessity in a democratic society of criminalising “hate speech” (see also IRIS 2009-8/1, IRIS 2019-1/1, IRIS 2020-3/21, IRIS 2021-4/5 and IRIS 2021-9/15). In a case involving the former French presidential candidate Éric Zemmour, the ECtHR found that the politician’s conviction and sentencing for the offence of inciting discrimination and religious hatred against the French Muslim community for statements made on a television show did not violate his right to freedom of expression as guaranteed...
EU: Court of Justice of the European Union
AG Opinion on liability of streaming platforms and use of VPNs
On 20 October 2022, Advocate General (AG) Szpunar delivered an Opinion in Case C‑423/21, which concerned the important issue of the liability of streaming platforms under Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (InfoSoc Directive), where users circumvent geo-blocking measures using virtual private networks (VPNs). Notably, the AG’s Opinion considered that the Court of Justice of the European Union (CJEU) should hold that streaming platforms which transmit television programmes online do not infringe the exclusive...
[BE] Second edition of CSA study on audiovisual consumption in French-speaking Belgium
On 17 November 2022, the Belgian Conseil supérieur de l’audiovisuel (regulatory authority for the audiovisual sector of the French-speaking Community of Belgium – CSA) published the results of its second study entitled Médias: Attitudes et Perceptions (Media: Attitudes and Perceptions – MAP). Like the first edition published in 2020 (based on 2019 data), the study analyses how the emergence of new forms of audiovisual consumption is changing television usage. It updates the data previously collected and draws comparisons with the results of the previous study. In...
[BG] Roundtable concerning gambling commercial communications and self-regulation of gambling operators
Съветът за електронни медии (the Council for Electronic Media – CEM) convened a roundtable on gambling commercial communications in media services and video sharing platform services (Кръгла маса относно търговското слово за хазарт) which took place on 13 December 2022. The roots of the discussions can be traced back to August 2022 when a Memorandum for Cooperation was signed between CEM and Национална агенция за приходите (the National Revenue Agency – NRA). The reason behind the debate was the aggressive campaigns of gambling advertising which increased, especially with the...
[DE] Bundestag approves Deutsche Welle task plan and calls for greater support
In a resolution adopted on 16 December 2022, the German Bundestag (lower house of parliament) approved a motion tabled by the ruling parties SPD, Bündnis 90/Die Grünen and FDP, aimed at strengthening the work of Deutsche Welle (DW), the international broadcaster of the Federal Republic of Germany. On the basis of the 2022-2025 task plan submitted by DW, the federal government, using the available budgetary resources, will help DW to readjust and clarify its content-related and organisational priorities and objectives, in particular its transformation into a digital media company, by providing...
[DE] Cartels Office ends Google News Showcase proceedings
In a press release published on 21 December 2022, the Bundeskartellamt (Federal Cartels Office), Germany’s competition regulator, announced that the proceedings against Google News Showcase had been concluded after the company made a number of important adjustments to its service. The proceedings and the adjustments that have been made mainly concern the ancillary copyright of publishers in relation to Google’s “Google News Showcase” news service, which the Bundeskartellamt thought might breach competition law by squeezing the news services of press publishers and similar...
[DE] Draft regulations on compliance, transparency and supervision in the state media treaty
On 7 December 2022, the Rundfunkkommission (Broadcasting Commission) of the German Länder adopted a set of draft regulations on compliance, transparency and supervision in public service broadcasting and posted them on its website in the belief that the regulation of public communication should be publicly debated. Indeed, during the preparation of the Medienstaatsvertrag (state media treaty), the Länder always posted the latest drafts on the Internet so that anyone could comment on them. Until now, the German public service broadcasters have approached compliance, transparency and...
[DE] KEK confirms third-party airtime and regional windows for next licence period
At its 270th meeting in December 2022, the Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media – KEK) decided that the proposed decisions of the relevant state media authorities concerning third-party broadcast times (Lower Saxony state media authority, RTL) and two regional windows (Hessen state media authority, RTL and Sat.1) were compatible with the rules designed to protect plurality of opinion. As a result, Germany’s two most popular broadcasters, RTL and Sat.1, will remain obliged to broadcast regional windows and provide broadcasting...
[FR] Amendment of system for contribution to cinematographic and audiovisual production
Decree no. 2022-1610 of 22 December 2022 amending the system for the contribution to cinematographic and audiovisual production of television services amended both decree no. 2021-1926 of 30 December 2021 on the contribution to cinematographic and audiovisual production of terrestrial television services (known as the “DTT” decree) and decree no. 2021-1924 of 30 December 2021 on the contribution to cinematographic and audiovisual production of television services distributed via networks that do not use the frequencies assigned by the Regulatory Authority for Audiovisual and Digital...
[FR] Broadcaster must take broadcast times and conditions into account to ensure political pluralism
The company responsible for TV channel CNews asked the Conseil d’Etat (Council of State) to annul the decision taken by the Conseil supérieur de l'audiovisuel (French audiovisual regulatory body — CSA) on 3 December 2021, requiring it to comply before 31 December 2021 and in the future with the provisions of Article 1 of its decision no. 2017-62 of 22 November 2017 on the principle of political pluralism in radio and television services. Under this decision, a third of airtime devoted to political speeches must be reserved for speeches by the president of the Republic, government...
[FR] Use of age verification systems does not breach the Constitution
On 13 and 15 July 2022, alleging that minors could access the pornographic websites Pornhub, Tukif, Xhamster, Xnxx and Xvideos simply by stating that they were aged 18 or over, in violation of Article 227-24 of the Penal Code, the president of ARCOM (the French audiovisual and digital communications regulator) summoned numerous Internet access providers to appear before the president of the Tribunal Judiciaire de Paris (Paris judicial court) on the basis of Article 23 of Law no. 2020-936 of 30 July 2020 and asked the court to order them to block access to the sites concerned. During the proceedings,...
[GB] Ofcom determines Glastonbury Festival’s Worthy FM 87.7 to have breached the Broadcasting Code for radio play of songs containing offensive language
Ofcom has determined that Glastonbury Festival's onsite radio station Worthy FM 87.7 (Worthy FM) breached Rules 1.14, 1.16 and 2.3 of the Broadcasting Code by playing records that contained offensive language, at a time likely to be heard by children, even if relatively low in numbers. Worthy FM is a radio station that plays music during the duration of the Glastonbury music festival. The main audience are festival goers but the programming is transmitted in the county of Somerset where Glastonbury is located. Worthy FM has a Restricted Service Licence (RSL) granted by Ofcom and the licensee...
[GB] Ofcom publishes research on viewers' attitudes to commercial references in TV programmes
In December 2022, Ofcom, the UK’s communications regulator, published research into what viewers think and how they feel about commercial references in and around TV programmes. This is the first time in over 15 years that the regulator has carried out extensive research in this area. The findings are intended to inform its current guidance to the rules on content regulation. What is a commercial reference? All broadcast TV content comprises programming and advertising. In addition to income from adverts in commercial breaks, broadcasters generate revenue from references to products,...
[IE] Online Safety and Media Regulation Act signed into law by the President
Transposition of the Audiovisual Media Services Directive (AVMSD) was expected to occur by September 2020. While several countries exceeded the transposition deadline, Ireland was the only one to remain under the infringement procedure brought before the European Court of Justice of the European Union (CJEU) in May 2022. In late 2022, the Irish Bill was finally signed into law by the President. The Online Media Safety Regulation (OSMR) Bill was initiated on 25 January 2022 during the Seanad Éireann stage, after the government approved its publication on 12 January. During this first stage,...
[IT] The Italian Supreme Court of Cassation renders a landmark decision on parody involving the fictional character "Zorro"
On 30 December 2022, the Italian Supreme Court of Cassation published a landmark decision with regard to the use of parody as an exception to copyright and trademark rights. The case arose in relation to the unauthorised use of the literary character “Zorro” in the context of a commercial. The proceedings underlying this decision date back to 2007, when the claim was originally brought, following the broadcast on television and radio of an advertising campaign launched by “Brio Blu”, a famous Italian water brand, starring an equally famous Italian actor impersonating...
[LV] Revocation of TV Rain's broadcasting permit for threats to national security and public order
On 6 December 2022, the National Electronic Mass Media Council of Latvia issued a decision cancelling the broadcast permit issued only a few months earlier, on 6 June 2022, to TV Rain - an independent Russian channel - for the production of the TV Rain programme. This final decision followed the initiation of several administrative procedures and decisions by the Council. The Council’s first decision from 10 November 2022 concerned mere compliance with the “Basic operation conditions” of the electronic media’s broadcast permit. It pointed out that the programme was not...
[NL] Decision on zero-rating streaming services following CJEU judgment
On 16 December 2022, the Netherlands' Autoriteit Consument en Markt (Authority for Consumers and Markets — ACM) issued a decree which declared binding the commitment made by the telecom operator T-Mobile to stop offering a data-free music service by 31 March 2023. The decree follows an important judgment of the Court of Justice of the European Union (CJEU) in September 2021, which held that so-called zero-ratings services are incompatible with EU Regulation (2015/2120) on open internet access (Open Internet Regulation) (see IRIS 2021-9/27). Under T-Mobile’s data-free music service...
[NL] New funding system for local public broadcasting
On 16 December 2022, the Staatssecretaris Cultuur en Media (State Secretary for Culture and Media) announced significant new funding for local public broadcasting, and a new system of funding for local public broadcasting. Under the scheme, the Dutch government will make over EUR 15.9 Million available to support local public broadcasters in their professionalisation, and in 2024, this funding will increase to EUR 18.9 Million. Significantly, from 2025 onwards, local broadcasters will receive funding directly from the central Dutch government, and no longer from municipalities (see IRIS 2020-6/7)....
[SK] Statute on Media Services enters into force
The Statute of Slovakia “On Media Services and on Adoption of Amendments to Certain Statutes” (the Statute on Media Services) was adopted by the National Council (Parliament) of the Slovak Republic on 22 June 2022, and enters into force on 1 August 2022, and in part – on 1 January 2023 and on 1 January 2027. The Statute contains 244 Articles and regulates the activities of broadcasters, providers of audiovisual media services, operators of rebroadcasting, multiplex providers and video hosting providers, if they are registered, headquartered or reside in Slovakia. Suppliers...
[SK] Statute on Publishing enters into force
The Statute of Slovakia “On Publishers of Publications and on the Register of the Mass Media and Audiovisual Media, and on Adoption of Amendments to Certain Statutes” (the Statute on Publishing) was adopted by the National Council (Parliament) of the Slovak Republic on 22 June 2022, and enters into force on 1 August 2022. In particular, it regulates the activity of news web portals and online periodic press. Publishers of periodic publications (online and offline) and operators of news portals are to be registered by the Ministry of Culture of the Slovak Republic (Article 3). They...