IRIS newsletter 2023-8
European Audiovisual Observatory
76, allée de la Robertsau
Tel. : +33 (0) 3 90 21 60 00
Fax : +33 (0) 3 90 21 60 19
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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 • Linda Byrne • Glenn Ford • David Windsor • Aurélie Courtinat • Barbara Grokenberger
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2023 European Audiovisual Observatory, Strasbourg (France)
It turned colder, that's where it ends ..." Thus, sang Olivia Newton John of her summer lovin’ with John Travolta in Grease. Indeed, the dog days are over and the weather is cooling down (climate change permitting), but that’s not where our reporting ends– quite the opposite! We come back to the office with our batteries recharged and a wealth of information in this newsletter. And we have something for everyone.
On the anti-piracy front, in the UK, Sky has won a new High Court order to block illegal streaming. In Italy, there is a new law to combat copyright infringement on electronic communications networks, and the European Commission has issued a recommendation to help combat online piracy of sports and other live events.
Regarding VSPs, in the UK, research by Ofcom found that people need advanced reading skills to understand the terms and conditions of VSPs. In France, a new law has introduced a digital majority at 15 and strengthened the fight against online hate speech. In Italy, AGCOM launched a public consultation on influencers.
On electoral issues, in Spain the Central Electoral Commission urged public-service RTVE to be extremely rigorous in its coverage during election periods; in Germany, the Berlin-Brandenburg Higher Administrative Court ruled on the obligations of public service broadcasters in election coverage, while in Moldova the Central Election Commission now vets public advertising before elections.
And if you are interested in European matters, the Commission published its 2023 Rule of Law Report, and theCULT MEPs of the European Parliament adopted their draft position on the EMFA.
But, oh those summer nights… 😉
Enjoy the read!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights (Grand Chamber) : Hurbain v. Belgium
On 4 July 2023 the Grand Chamber of the European Court of Human Rights (ECtHR) confirmed the conclusion of its Chamber judgment of 22 June 2021 in the case of Hurbain v. Belgium (IRIS 2021-8/27). The ECtHR found that a court order to anonymise an article in a newspaper’s electronic archive did not violate the publisher’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The judgment holds an application of the “right to be forgotten” as part of the right of privacy under Article 8 ECHR, in particular in respect of online media...
EU: Court of Justice of the European Union
Preliminary ruling by the CJEU in Case C-426/21
By judgment dated 13 July 2023, the Court of Justice of the European Union (hereafter referred to as “the Court”) gave a preliminary ruling, at the request of the Austrian Oberster Gerichtshof, in Case C-426/21 opposing Ocilion IPTV Technologies GmbH to Seven.One Entertainment Group GmbH and Puls 4 TV GmbH & CO. KG. Ocilion, a company incorporated under Austrian law offers an IPTV service to its commercial costumer. The service concerns, among other programmes, programmes for which Seven.one and Puls 4 TV hold retransmission rights and takes the form of either an on-premises...
EU: European Commission
European Commission publishes Key Performance Indicators to monitor and assess the effects of its Recommendation on online piracy of sports and other live events
Following the adoption on 4 May 2023 of the Recommendation regarding online piracy of sports and other live events, the European Commission published, on 31 July 2023, Key Performance Indicators (KPIs) to monitor and assess the effects of the Recommendation. The European Observatory on Infringement of Intellectual Property Rights, hosted by the European Union Intellectual Property Office (EUIPO Observatory) will support the European Commission in that monitoring and assessment. The Recommendation is to encourage member states, national authorities, holders of rights and providers of intermediary...
EU: European Commission
Rule of Law Report 2023, including on media freedom and pluralism
On 5 July 2023, the European Commission published its 2023 Rule of Law Report, which is the fourth annual report as part of the European Rule of Law Mechanism announced in the Political Guidelines of the Commission’s President in 2019 (see, for example, IRIS 2020-10/9). The purpose of the Rule of Law report is to “take the pulse” of the rule of law situation in each member state and the EU as a whole, “detecting and preventing” emerging challenges and supporting rule of law reforms. The 2023 Report includes separate country chapters for all 27 EU member states, and,...
EU: European Data Protection Supervisor
TikTok ordered to eliminate unfair design practices concerning children after EDPB binding decision
On 14 September 2021, the Irish Supervisory Authority (SA) started an “own volition inquiry” procedure as regards TikTok Technology Limited (hereafter: TikTok). It addressed, in particular, the processing of users’ (children aged between 13 and 17) personal data in connection to certain design practices, as well as issues relating to access to the platform for children under the age of 13. The Draft decision issued by the Irish SA (the Leading SA – “LSA”) triggered objections from its counterparts, namely the Italian and German SAs (the Concerned SAs –...
EU: European Parliament
EMFA: CULT MEPs adopt their draft position
One year after the European Commission’s proposal (for the past legislative process, see IRIS 2023-5:1/7), CULT MEPs adopted MEP Verheyen’s draft report on the European Media Freedom Act on 7 September 2023. The EMFA was first presented by the European Commission in September 2022 to establish a common framework in the EU to protect media pluralism, editorial independence and a common level of safety for the media industry (see IRIS 2022-9:1/3). CULT MEPs would like to see parts of the Commission's proposal amended in the following way: - The Commission’s proposed...
[AM] Introduction to the Law on Cinematography of Armenia
The Law on Cinematography (hereinafter referred to as the Law) was adopted on 30 June 2021 and entered into force on 26 July 2021. The purpose of adopting the Law is to ensure the development of the cinematography industry in the Republic of Armenia, to create sufficient legal guarantees and to support the creation, distribution, screening and promotion of national films, as well as the preservation of and access to film heritage and film history. This law, consisting of 10 chapters in total, defines the principles of state policy in the field of cinematography, the goals and forms of state...
[BG] The Council for Electronic Media held a discussion concerning commercial communications in the media
Съветът за електронни медии (the Council for Electronic Media – CEM) held a discussion focused on the topic of “Commercial Communications in the Media” on 6 July 2023. Representatives of Комисията за защита на потребителите (the Commission for Consumer Protection), Асоциацията на българските радио- и телевизионни оператори (the Association of Bulgarian Radio and Television Broadcasters), Националния съвет за саморегулация (the National Council for Self-Regulation), the general directors of Българската национална телевизия (Bulgarian National Television) andБългарското национално...
[BY] New restrictions for news from non-controlled media
Amendments to the basic media law of Belarus introduce the notion of the “news aggregator”, with specific qualifying requirements as to its nature (minimum 50 news items published within five days, above 50 percent of the news items are taken from other parties, whereas online media, official websites of public bodies and online shops are excluded). News aggregators and their owners now fall under the existing provisions related to other mass media, including on transparency, the right of reply, restrictions on foreign property, content restrictions and bans, privileges, as well as...
[CH] Investment obligations for audiovisual services come into force in Switzerland
In 2021, the Swiss Parliament passed a revision of the Film Act introducing quota and investment obligations for linear and non-linear audiovisual services [see IRIS 2021-9:1/3]. The law was challenged in a public referendum and adopted on 15 May 2022 with 58% approval. On 6 September 2023, the Federal Council adopted the ordinance on the Quota for European Films and Investments in Swiss Film Production (FOIO, FQIV in German) which will enter into force on 1 January 2024. The ordinance implements the law and defines the conditions that the investment obligation must meet. Audiovisual services...
[CZ] Amendment to the acts on Czech Television and Czech Radio
Parliament has adopted an amendment to the Acts on Czech Television and Czech Radio concerning the Council of Czech Television and the Council of Czech Radio. Until now, the Chamber of Deputies had elected all of the members of these councils. The amendment stipulating that council members are to be elected and dismissed by the Senate in addition to the Chamber of Deputies has been added to the current version. The Chamber of Deputies will elect 12 of the 18 members of the Council of Czech Television, and the Senate will elect six of them. At the Council of Czech Radio, which has nine members,...
[DE] Appeal court lifts public-service news app ban
Ruling in summary proceedings on 28 June 2023, the fourth civil chamber of the Oberlandesgericht Stuttgart (Stuttgart Appeal Court) set aside the lower court’s decision to temporarily ban the distribution of the “Newszone” app by one of the German public broadcasting companies. However, the main reasons for its decision were formal rather than substantive, since, in accordance with the German Medienstaatsvertrag (State Media Treaty – MStV), the newspaper publishers that had complained about the app should have first initiated an arbitration procedure with the broadcaster...
[DE] Federal Supreme Court considers parts of TV documentary unlawful on victim protection grounds
In a ruling of 6 June 2023, the Bundesgerichtshof (Federal Supreme Court – BGH), the highest German civil court, examined the boundaries of film and photo-based reporting with victim protection in mind. It decided that public-service broadcaster Zweites Deutsches Fernsehen (ZDF) had exceeded the limits of permissible reporting in a television programme broadcast in 2018 concerning two child abduction cases dating back to 1981 and 1980 by showing in particular letters and photographs of the abducted children, and playing audio recordings. Although there was high public interest in...
[DE] German media regulator urges YouTube to comply with transparency obligations
On 28 June 2023, the Medienanstalt Hamburg/Schleswig-Holstein (Hamburg/Schleswig-Holstein media authority – MA HSH), as the responsible media regulator, called on the company Google Ireland Ltd. to meet its new obligations under the German Medienstaatsvertrag (State Media Treaty – MStV). In its decision, it accused Google of failing to meet its legal obligation to ensure transparency for users on its YouTube platform by informing them about why they were being shown particular content. It is the first time a German media regulator has taken action against a global media intermediary...
[DE] Higher Administrative Court rules on public broadcasters’ election reporting obligations
On 25 May 2023, ruling on an appeal lodged by the Partei Mensch, Umwelt, Tierschutz (Animal Protection Party) against a decision favouring the Berlin-Brandenburg state broadcasting authority (rbb), the Oberverwaltungsgericht Berlin-Brandenburg (Berlin-Brandenburg Higher Administrative Court) decided that rbb should have specifically mentioned the party’s share of the vote in the last Brandenburg state election (2.6% of second votes) in its post-election coverage rather than including it under the heading “Other”. The court based its ruling on political parties’ constitutional...
[DK] Possible extended collective licence for text and data mining
In the spring of this year Denmark was in a hurry to implement the DSM Directive, as fines had been imposed for each day of late implementation (which should have taken place in June 2021). Thus, on 10 March 2023, a proposal for a draft bill was sent out for consultation, with a deadline for comments set to 11 April; on 3 May a revised proposal for a draft bill amending the Danish Copyright Act to implement the Directive was introduced to the parliament, with entry into force on 1 July 2023. In a revised bill of 30 May, this date was, however, amended so that the bill would enter into force as...
[ES] Spain's Central Electoral Commission urges RTVE to be extremely rigorous in its reporting during election periods
The Spanish far-right political party Vox filed a complaint with the Central Electoral Commission (CEC) against Radiotelevisión Española (RTVE), the national public broadcaster, during the national election period of July 2023. The representative of VOX argued that the principles of impartiality and neutrality had been infringed by RTVE in the report entitled “Las noches romanas de Mérida” (“The Roman nights of Merida”). The complaint was based on certain statements referring to cancellations of cultural events in a number of Spanish villages after the...
[FR] ARCOM president’s request to block pornographic websites: judicial court stays proceedings pending outcome of Conseil d’Etat appeal
On 3 March 2022, as part of his remit under the Law of 30 July 2020 and the Decree of 7 October 2021 aimed at preventing minors from accessing pornographic websites, the president of the Autorité de régulation de la communication audiovisuelle et numérique (French audiovisual regulator – ARCOM) ordered several Internet access providers to appear before the president of the Paris judicial court. He asked the court, ruling on the merits under the accelerated procedure, to order the ISPs to block the websites Pornhub, Tukif, Xhamster, Xnxx and Xvidéo so they could...
[FR] Ahead of the entry into force of the DSA, ARCOM publishes review of resources deployed by online platforms to combat hate content online
On 24 July 2023, one month before the European Digital Services Act (DSA) came into force for the largest online platforms and search engines, the Autorité de régulation de la communication audiovisuelle et numérique (the French audiovisual regulator – ARCOM) published its 2022 review of the resources deployed by providers to combat the dissemination of hate content online. Based on providers’ observations and reports submitted in response to a questionnaire, the review describes the various tools and procedures put in place to combat misuse of the largest online...
[FR] Information processing and controversial issues: Conseil d’Etat highlights the need to distinguish between presentation of facts and commentary, and to allow expression of different viewpoints on air
The company responsible for TV channel CNews asked the Conseil d’Etat (Council of State) to annul two formal notices issued by the Autorité de régulation de la communication audiovisuelle et numérique (the French audiovisual regulator – ARCOM) on 10 May 2022, ordering it to meet the obligations contained in its licence agreement concerning honesty of information and control of its programmes. The first formal notice followed the broadcast, during the programme “Les Points sur les i” in November 2021, of a sequence in which a professor of medicine,...
[FR] New law establishing digital majority and combating online hate
Under the new law no. 2023-566 of 7 July 2023 “establishing digital majority and combating online hate”, children under 15 will need their parents’ consent to join a social network. The law also enshrines in French legislation (Article 1 IV of the Loi pour la confiance dans l’économie numérique (Law on confidence in the digital economy – LCEN) of 21 June 2004) the definition of a social networking service as “a platform that enables end users to connect and communicate with each other, share content and discover other users and content across...
[GB] Information Appeals Commissioner determines that BBC did not have to disclose commercially sensitive information that may prejudice a third-party contractor
The BBC commissioned a report on diversity, which was produced by MTM, an independent research agency. On 3 May 2022, a Freedom of Information Act request was made by William Turvill, asking for the costs incurred by the BBC for this report. The BBC considered that the information was commercially sensitive and refused to disclose the details pursuant to section 43(2) Freedom of Information Act 2000 (FOIA). Section 43(2) FOIA provides that: “Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person...
[GB] People need advanced reading skills to understand UK VSPs’ terms and conditions, Ofcom research finds
On 9 August 2023, Ofcom, the UK’s communications regulator, published its first report on video-sharing platforms’ (VSPs) user policies. The report highlights examples of good practice, but also underscores the need for VSPs to simplify their terms, improve communication of content guidelines, and enhance training for content moderators to create a safer online environment. Background Ofcom was appointed as the regulator for UK-established video-sharing platforms (VSPs) in November 2020. The Communications Act 2003 lists measures that VSP providers must take, as appropriate, to...
[GB] Sky secures new High Court order to block illegal streams
On 31 July 2023, UK pay-television operator Sky was granted a High Court order requiring internet service providers (ISPs) to block access to illegal streams across a range of the broadcaster’s linear channels. Background Against the backdrop of escalating piracy concerns (including, e.g., the use of internet TV boxes pre-loaded with software facilitating illegal streaming), Sky has found in recent years its ISP division named as a respondent in injunction applications filed at the High Court in London. To mitigate the prevalence of illicitly duplicated content, film production studios,...
[IT] AGCOM sends a warning to the government to amend the par condicio law
In pursuance of its inherent mandate as codified in Article 1, paragraph 6, letter c), No. 1 of its founding statute, the Italian Communications Authority (AGCOM) has seen fit to formally submit to the government a warning on the Italian statute governing equal access to media platforms during electoral campaigns, referendum initiatives, and broader political discourses, namely, Law No. 28 of 22 February 2000, commonly referred to as the "level playing field" or "par condicio". The warning is motivated by the need to review the legislation governing access to the media...
[IT] A public consultation on influencers and compliance with the consolidated law of media services launched by Agcom
On 21 July, AGCOM launched with resolution no. 178/23/CNS a public consultation on the measures to be adopted to ensure influencers' compliance with the Consolidated Law on audiovisual media services. AGCOM's goal of extending the scope of the legal and regulatory framework to these subjects stems from the observation that the activities carried out by influencers are comparable to the provision of audiovisual media services. The activities involved are those carried out by subjects denominated in current language with the term of "influencer", but also "vlogger",...
[IT] AGCOM fines Meta for failing to provide relevant information
The Italian Communications Authority (AGCOM) has once again sanctioned the company META PLATFORMS IRELAND LIMITED (see IRIS 2023-3:1/14) for failing to provide requested information. The story originates from a previous case, which resulted in a fine of EUR 750 000 and highlighted a clear need to recover information relating to users of Meta's Facebook content sharing platform. Some users of this platform used Meta's advertising services to promote online gaming sites with cash prizes. In 2018, Italian legislation introduced an absolute ban on any advertising, direct or indirect,...
[IT] Piracy is counted out: new Italian Law to fight copyright infringements on electronic communications networks
With the adoption of Law n. 93 of 14 July 2023, in force since 8 August 2023, the Italian Communications Regulatory Authority (AGCOM) has been provided with new and relevant powers for copyright protection on electronic communications networks (see IRIS 2021-8:1/28, 2020-7:1/26, 2019-2:1/17. 2017-10:1/25, 2017-5:1/ 26). In particular, pursuant to article 2 of this Law, AGCOM is now entitled to order service providers, including network access providers, to prevent access to illegally disseminated contents within 30 minutes by blocking DNS resolution of domain names and blocking the routing of...
[MD] Central Election Commission now vets public advertising before election
According to the “Regulation on the procedure for the dissemination and broadcasting of political and electoral advertising and messages of public interest”, adopted by the Central Election Commission of Moldova (CEC) on 4 August 2023, during the 90-day election period, no public institution or non-commercial organization (NCO) shall distribute, and neither shall the media publish, any such messages without prior approval from the CEC. This was anticipated by the new Statute on Advertising (part 2 of Article 17), which defines such messages as “advertising, the subject of which...
[NL] Digital Services Act Implementation Bill published
The Digital Services Act Implementation Bill was published on 14 July 2023. It provides for the national implementation in the Netherlands of the EU’s landmark Digital Services Act (DSA), which entered into force in late 2022 (see, for example, IRIS 2023-3:1/18 and IRIS 2023-5:1/2). Crucially, the Bill designates the Autoriteit Consument & Markt (Netherlands Authority for Consumers and Markets – ACM) as the national Digital Services Coordinator in the Netherlands under the DSA. In addition, the bill designates the Autoriteit Persoonsgegevens (Dutch Data Protection Authority –...
[NL] Sanction imposed on controversial broadcaster Ongehoord Nederland upheld
On 12 July 2023, the Board of Directors of the Stichting Nederlandse Publieke Omroep (Dutch Public Broadcasting Foundation – NPO) issued a high-profile decision, upholding a financial sanction imposed on the Dutch broadcaster Ongehoord Nederland (ON). This follows a formal request made by the NPO’s Board of Directors in April 2023 asking the Secretary of State for Culture and Media to withdraw the provisional recognition of the broadcaster ON, having already imposed three separate fines on the broadcaster, including a EUR 131 000 fine in April 2023 for “systemic violation”...
[UA] “Impeccable reputation” regulation for media owners approved
Following the adoption of the “de-oligarchisation” statute in Ukraine (see IRIS 2023-7:1/19), which aims to eliminate the excessive influence of vested interests in the economic, political and public life of the country including through “exerting significant influence over the mass media”, the national media regulator – the National Council on Broadcasting – adopted, on 28 July 2023, the Regulation on conducting the verification of the business reputation of the purchaser (potential purchaser) of a media outlet. This verification is to be conducted by...
[UA] List of events of major importance to society confirmed
The Ukrainian national media regulator – the National Council on Broadcasting – approved, on 1 June 2023, a List of events of major importance to society. This list includes the following events: 1. All games involving the participation of the national football team of Ukraine, as well as the semi-finals and finals of European and World championships, and the finals in European cups (the UEFA Champions League, the UEFA Europa League and the UEFA Europa Conference League). 2. Summer and Winter Olympic and Paralympic games – all competitions involving the participation of...