IRIS newsletter 2023-4
European Audiovisual Observatory
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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 • 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)
The number three has an important place in our culture: three wishes, guesses, little pigs, musketeers, days of the Condor, and even billboards outside Ebbing, Missouri. Now, if you take a look at the present newsletter, you may also find three overarching topics popping up in different shades and forms: the protection of minors, copyright, and freedom of expression.
With regard to our younger ones, France has adopted a bill on social media age restrictions and parental control, while the CNIL welcomed the launch of trials of a system that meets its July 2022 recommendations on age checks for accessing pornographic websites. In Bulgaria, the code of conduct for the protection of children entered into force. And in the Netherlands, Dutch MPs voiced their concern about the presence on government devices of the highly popular among the youth TikTok app (although for reasons other than the protection of minors, I must say).
Concerning copyright, the European Commission referred 11 Member States to the CJEU for failing to transpose EU copyright directives, and in Italy AGCOM launched a public consultation on the draft regulation implementing provisions of the DSM Copyright Directive on the "remuneration chapter", ECL, and licensing for VOD platforms.
Last but not least, freedom of expression. The drafting of the CoE recommendation on Anti-SLAPPs continues, the 2023 report of the safety of journalists platform was published, and the ECtHR released an interesting judgment on the topic of whistle-blowers. At EU level, the European Parliament adopted amendments on the proposal for regulation on transparency and targeting of political advertising. And at national level, the Luxembourgish regulator established guidelines on the conditions of production, programming, and the dissemination of electoral messages by political parties and candidates, while the Italian AGCOM approved a regulation for the protection of fundamental human rights.
And worry not, should three not be enough, we have a number of other interesting topics in stock.
Have a nice read!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
CoE - Council of Europe (all)
SLAPPs to be addressed by the Council of Europe
In recent years, civil society organisations across Europe have been advocating before European and national authorities against the use of Strategic Lawsuit Against Public Participation (SLAPPs). SLAPPs are unfounded legal actions brought on matters of public interest that aim to prevent or restrict public participation. The serious issue around SLAPPs and their devastating impact on media freedom and freedom of expression emerged following the brutal assassination of investigative journalist Daphne Caruana Galizia. At the time of her assassination, she was facing 47 defamation lawsuits, many...
CoE: Platform for the promotion of journalism and the safety of journalists
The safety of journalists platform publishes its 2023 report
The safety of journalists platform is an internet-based platform developed in 2015 by the Council of Europe in cooperation with partner organisations. The platform gives member states and organisations of journalists the opportunity to report and exchange on the protection of journalism and the safety of journalists. It is more particularly used to alert the Council of Europe to serious threats or attacks on media freedom (such as violence against journalists), thereby allowing it to take proper and timely action. On 7th March 2023, the platform published its annual report written...
European Court of Human Rights : Croatian Radio-Television v. Croatia
A recent judgment of the European Court of Human Rights (ECtHR) has confirmed and clarified under what conditions a public service broadcaster (PSB) has editorial independence and institutional autonomy, and therefore can claim locus standi before the ECtHR as a non-governmental organisation. The judgment revealed a remarkable position taken by the Croatian Government in defence of an interference with the rights of the Croatian public broadcasting organisation, the Croatian Radio-Television (CRT). The Croatian Government argued that the CRT, as a government institution, had no standing before...
European Court of Human Rights (Grand Chamber): Halet v. Luxembourg
On 14 February 2023, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered a judgment, highly protective of whistle-blowers claiming protection of their right to freedom of expression and information as guaranteed under Article 10 of the European Convention on Human Rights (ECHR). The Grand Chamber built on its earlier case law, integrating the developments which had occurred since the Guja judgment in 2008 (IRIS 2008-6/1), and applying the criteria for whistle-blowing protection in the light of the current European and international legal framework. The judgment refered...
EU: Court of Justice of the European Union
Case C-423/21 removed from CJEU register
By decision of 22 June 2021, the Oberster Gerichtshof (Austrian Supreme Court) made a reference for a preliminary ruling under Article 267 TFEU. The case arose in the context of a dispute between Grand Production - a Serbian media company producing television programmes broadcast in Serbia on the channels of PRVA Srpska Televizija - and GO4YU Beograd - an operator of a streaming platform established in Serbia broadcasting Grand Production's programmes in Serbia and Montenegro and geo-blocking access to internet users located outside these two countries. The issue, however, concerned the circumvention...
EU: European Commission
European Commission refers 11 Member States to CJEU for failing to transpose EU copyright directives
On 15 February 2023, the European Commission announced it had referred 11 Member States to the Court of Justice of the European Union (CJEU) for failure to notify the Commission 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). In particular, the Commission referred Bulgaria, Denmark, Finland, Latvia, Poland and Portugal to the CJEU for failure to notify...
EU: European Commission
Media literacy guidelines by the European Commission
On 21 February 2023, the European Commission published its media literacy guidelines, pursuant to Article 33a(3) of the Audiovisual Media Services Directive on the scope of member states’ reports concerning measures for the promotion and development of media literacy skills. According to Recital 59 of the Directive, "media literacy" refers to skills, knowledge and understanding that allow people to use media effectively and safely. According to the Commission, the purpose of the guidelines – which are not binding – is to enable citizens of all ages navigate...
EU: European Parliament
Regulation on political advertising negotiated
On 2 February 2023, amendments were adopted by the European Parliament on the proposal for a Regulation of the European Parliament and of the Council on the transparency and targeting of political advertising (RPA). The proposal by the European Commission, first published in 2021, was adopted and the Council of the European Union agreed upon its general approach for negotiations with the European Parliament in December 2022. The text adopted by the European Parliament contains almost 300 amendments to the original text. When adopted, the RPA will become the first piece of EU legislation...
[BE] Flemish media regulator publishes 2022 report on media concentration in Flanders
The Vlaamse Regulator voor de Media (Flemish Regulator for the Media — VRM) released its annual report on media concentration in Flanders (the Dutch-speaking area of Belgium) in November 2022. The report first discusses the media sector generally. The most important finding regarding the television sector is that the traditional role of broadcasters as content aggregators and curators is increasingly under pressure in a modern media landscape where media is consumed both in a linear and non-linear way. It points to service distributors and international actors who act increasingly as...
[BG] The code of conduct for the protection of children entered into force
On 1 February 2023, Кодексът за поведение относно мерките 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 (the 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 Code) entered into force. The Code was adopted by CEM pursuant to Decision No. RD-05-7 dated 12 January 2023. The Code has been...
[DE] KEK publishes opinion on EMFA
On 2 March 2023, the Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media – KEK) published its opinion of 14 February 2023 on the draft European Media Freedom Act (EMFA). Although it supports the objectives of the EMFA in principle, it points out that protecting pluralism is a task to be carried out at member state level, independently of state authorities. It believes this is not reflected in the current proposal. The KEK is a joint organ of the 16 German state media authorities. It is responsible for guaranteeing plurality of opinion...
[DE] VAUNET publishes 2022 media usage analysis
On 15 February 2023, the Verband Privater Medien (German Association of Private Media – VAUNET), the umbrella organisation of audio and audiovisual media companies in Germany, published its annual report on media consumption for 2022. The report shows that, although the use of audio and audiovisual media accounted for a slightly lower proportion of the total media time budget, of users aged 14 and over in Germany, than the previous year’s record level, it remained very high at almost 90%. Average daily usage of such content was 9 hours and 43 minutes in 2022. Daily video consumption...
[DE] State media authorities’ advertising transparency check
The GIM market research institute has published a study entitled “Transparenz-Check” (transparency check), commissioned by the Direktorenkonferenz der Landesmedienanstalten (Conference of State Media Authority Directors – DLM). Based on an online representative survey, the study investigates social media users’ ability to identify commercial content and the importance of labelling commonly used on popular platforms. It clearly shows that, for half of those who responded, clear labelling is the most important factor in their ability to recognise advertising. People who are...
[DK] On 15 February 2023 the European Commission referred Denmark, along with a handful of other member states, to the CJEU for failing to transpose the DSM Directive
The much-debated Directive on Copyright in the Digital Single Market (the DSM Directive), which impacts authors, online platforms and internet users, was due to be implemented in the EU by 7 June 2021. As a result of the COVID pandemic, which took up many resources, an election, and the long process of forming a new government (which was finally agreed in December 2022) Denmark was unable to meet this deadline. Denmark did however transpose part of the DSM Directive in time: The Danish Ministry of Culture had divided implementation of the DSM Directive into two parts. The first part...
Age checks for accessing pornographic websites: trial of a system that meets CNIL recommendations
On 5 February 2023, the French deputy minister for digital affairs announced that France is planning to introduce an age certification system in order to prevent children accessing pornographic video platforms. However, the details of the system, which will involve a digital certification process, have not yet been finalised. The protection of personal data is a major challenge for the future system. Since the web is designed as an open network, freely accessible without the need for authentication, checking users’ ages poses significant technical difficulties and is open to circumvention....
[FR] Adoption of bill on social media age restrictions and parental permission
Tabled by Laurent Marcangeli, an MP from the Horizons party, the bill “to establish digital majority and combat online hate” was adopted by the National Assembly at its first reading on 2 March 2023. During the parliamentary debate, it was revealed that, while 82% of children aged between 10 and 14 regularly use the Internet without their parents, more than 50% of them are active on social media, for which they first register at the age of 8 and a half on average. Therefore, even though a minimum age is stipulated, 60% of under-13s have a social network account. In the MPs’...
[FR] LCI warned to meet its obligation to exercise honesty and rigour in the presentation and processing of information
In a decision of 8 March 2023, the Autorité de régulation de la communication audiovisuelle et numérique ( French audiovisual regulator – ARCOM) issued a formal notice to the company La Chaîne Info (LCI), provider of the 24/7 television news service LCI, urging it to meet its obligation to exercise honesty and rigour in the presentation and processing of information. This decision follows two contentious news items broadcast in September 2022. The first, shown during the programme “Un œil sur le monde”, concerned disinformation in Russian media....
[GB] Mark Steyn of GB News breaches Ofcom’s Rule 2.2 by presenting official COVID vaccine data in a materially misleading way
Ofcom has found that the Mark Steyn programme (aired on GB News), presented by Mark Steyn, breached the Regulator’s rules about not materially misleading an audience when drawing conclusions based on data issued by the UK Health Security Agency (UKHSA). GB News is a television channel that primarily broadcasts current affairs programmes. It also has hourly news bulletins and describes itself as “Britain’s News Channel”. Mark Steyn was a presenter for GB News, which broadcast four days a week between 20.00 and 21.00. During the show, Mr Steyn gave his views on various...
[GB] New Standards Code launched by IMPRESS with AI future-focused provisions and a revised discrimination threshold
On 16 February 2023, the press regulator IMPRESS launched its new Standards Code, with key changes including guidance on AI and emerging technologies, stricter measures on tackling misinformation, stronger safeguarding guidelines, and a lower discrimination threshold. Background IMPRESS is the only British press regulator to have sought formal approval from the Press Recognition Panel (PRP). The Panel was established in the aftermath of the phone-hacking scandal to ensure that any future press regulator meets certain standards in compliance with the Leveson report recommendations. IMPRESS...
[GE] : Transparency of Foreign Influence Bill Tabled
On 14 February 2023, the “People’s Power” movement, an offshoot of the “Georgian Dream” ruling party, submitted a draft law “on the transparency of foreign influence”. According to the bill, a register of foreign-influenced agents would be created by the Ministry of Justice, which would “monitor” the activity of such agents. Liability for a failure to register or present relevant declarations would entail a fine of 25,000 Lari (about EUR 8 900). Article 2 of the draft law considered that “agents of foreign influence”...
[IT] AGCOM approves the Regulation for the protection of fundamental human rights
With Resolution no. 37/23/CONS of 22 February 2023, executing Article 30 of the Consolidated Law on Audiovisual Media Services (TUSMA), the Italian Communications Authority (AGCOM) unanimously approved the Regulation on the protection of fundamental human rights, respect for the principle of non-discrimination and the fight against hate speech (see IRIS 2020-4/23, 2019-4/25 and 2017-1/24). The public consultation launched with Resolution 292/22/CONS resulted in the submission of multiple contributions from media services providers - as the main addressees of the Regulation itself - as well as...
[IT] AGCOM approves the Regulation on the fair compensation calculation to publishers for the online use of journalistic publications by information society service providers
With Resolution no. 3/23/CONS of 19 January 2023, the Italian Communications Authority (AGCOM), as a first step in protecting copyright and related rights in the digital single market envisaged by Directive 2019/790 (and in particular in Article 15), approved the Regulation on fair compensation. A new right to fair remuneration granted to both publishers (right holders) and authors for the use online of journalistic publications by information society service providers has been introduced. In particular, in accordance with Article 43-bis of the Copyright Law (Legge sul diritto d’autore...
[IT] AGCOM launches public consultation on draft regulation implementing provisions of DSM Copyright Directive on the "remuneration chapter", ECL, and licensing for VOD platforms
On 6 March 2023, AGCOM published Resolution No. 44/23/CONS, launching a public consultation on the draft regulation on the “remuneration chapter”, extended collective licenses, and the negotiation mechanism for audiovisual works on VOD platforms. The relevant provisions of the Italian Copyright Law, as amended in the context of the transposition of Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market, granted AGCOM a wide array of regulatory, supervising, ADR (alternative dispute resolution) and sanctioning powers. In particular, the...
[IT] AGCOM launches the public consultation on dispute resolution procedures between users and video-sharing platforms
With Resolution no. 22/23/CONS of 8 February 2023, the Italian Communications Authority (Agcom) launched a public consultation on the issue of resolving disputes between users and video-sharing platforms (VSPs). In the national regulatory provision which transposes in Italy the new Article 28-b of the AVMS Directive, AGCOM has been given the task of setting up an alternative system of dispute resolution between users and VSP providers for violations of the principles established by Article 42 of the TUSMA (the consolidated Law on Audiovisual Media Services), other than the right of judicial...
[LU] ALIA publishes guidelines before the 11 June 2023 local elections in Luxembourg
On 24 February 2023, the Autorité luxembourgeoise indépendante de l’audiovisuel (Luxembourg Independent Authority for Audiovisual MediaLuxembourgish National Media Regulator — ALIA) published guidelines for the local elections taking place on 11 June 2023. The guidelines were drafted following a consultation phase with candidates, political parties, and audiovisual media entrusted with a public service mission. Electoral campaigns by political parties and candidates on social media are not covered by these guidelines. In accordance with Article 35, paragraph 1,...
[NL] Dutch MPs in favour of banning TikTok from government devices
On 15 February 2023, an important debate of the Parliamentary Standing Committee for Digital Affairs on data-ethics was held, where various Dutch MPs expressed their concerns about the use of TikTok on government mobile devices. It was not the first time that the government use of TikTok has been a topic of discussion in Dutch politics. The Committee debate followed previous advice from the Public Information and Communications Service of the Ministry of General Affairs in September 2022 "to suspend the use of TikTok at the central government level until TikTok has adjusted its data protection...
[NL] New Advertising Code on “Sustainability” claims
On 1 February 2023, the new Code voor Duurzaamheidsreclame (Code for Sustainability Advertising) came into effect, having been published by the Stichting Reclame Code (Dutch Advertising Code Foundation — SRC), the self-regulatory body for advertising, including broadcast advertising, in the Netherlands (see IRIS 2022-2/15). The new Code replaces the Milieu Reclame Code (Environmental Advertising Code) which related only to environmental claims, and now applies to both environmental claims and ethical claims, such as claims related to working conditions, animal welfare or corporate social...
[UA] Russian journalist sentenced for calls to genocide
On 13 February 2023, the Shevchenkivsky district court in Kyiv sentenced Anton Krasovsky to five years' imprisonment with confiscation of property for public calls to overthrow the constitutional order of Ukraine and dissemination of such calls in the mass media (paragraph 3 of Article 109 of the Criminal Code of Ukraine), as well as for public calls to genocide and dissemination of such calls (paragraph 2, Article 442 of the Criminal Code of Ukraine), the maximum term of imprisonment envisaged by both articles – in absentia. It appears that this was the first verdict in Ukraine...