IRIS newsletter 2023-10
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 • Sonja Schmidt • Ulrike Welsch
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Amélie Lacourt • Linda Byrne • Glenn Ford • Aurélie Courtinat • Barbara Grokenberger
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2023 European Audiovisual Observatory, Strasbourg (France)
As 2023 draws to a close, two major pieces of EU legislation, the European Media Freedom Act (EMFA) and the Artificial Intelligence Act (AI Act), are on the verge of being passed in Brussels.
While we wait for these legislative developments to be finalised, this newsletter contains a number of articles relating to the implementation of a momentous EU regulation, the Digital Services Act (DSA). On 18 October, the European Commission published a set of recommendations for member states to coordinate their response to the distribution and amplification of illegal content, such as terrorist content or unlawful hate speech. This prompted the French and Irish regulators to sign an agreement with the EC to support the enforcement of the DSA. Other notable recent developments in Brussels include a report adopted by EP committees recommending new EU legislation on working conditions for artists and other cultural professionals, and an IMCO committee report on the addictive design of digital platforms.
But you know, there is life beyond the plat pays. A little further north, in the Netherlands, the Commissariaat voor de Media published updated guidelines for video influencers. In another neighboring country, Luxembourg, the Court of Justice of the EU issued a judgment in a case opposing Google, Meta and TikTok Technology Limited to KommAustria. Way down south, regulators in both Portugal and Spain have been busy with issues relating to the promotion of European works. And far, far away in sunny California, a much-discussed strike has ended with an agreement between the US actors' union SAG-AFTRA and the Alliance of Motion Picture and Television Producers (AMPTP).
And no matter where you are, south, north, east or west, I wish you on behalf of our team a happy end to 2023 and a peaceful 2024!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Zöchling v. Austria
A judgment of 5 September 2023 of the European Court of Human Rights (ECtHR) dealt with a complaint under Article 8 of the European Convention on Human Rights (ECHR) about the refusal to hold the publisher of an Internet news portal liable for hate speech in users’ comments against a female journalist. With reference to its earlier Grand Chamber case law in the context of freedom of expression under Article 10 ECHR, as in Delfi AS v. Estonia (IRIS 2015-7/1) and more recently Sanchez v. France (IRIS 2023-6:1/15), the ECtHR reiterated that when comments take the form of hate speech and direct...
Republic of Türkiye
European Court of Human Rights: Durukan and Birol v. Türkiye
The European Court of Human Rights (ECtHR) in a judgment of 3 October 2023 found a violation by the Turkish authorities of the right to freedom of expression via social media as guaranteed by Article 10 of the European Convention on Human Rights (ECHR). The case concerns the conviction and prison sentences of two persons, Mr Baran Durukan and Mrs İlknur Birol, on account of content they posted on Facebook and Twitter. Although the effects of their convictions were suspended, subject to probation periods of three and five years respectively, the ECtHR considered the convictions and their suspension,...
EU: Court of Justice of the European Union
CJEU judgment: Google Ireland and others v. Austria
The Court of Justice of the European Union (CJUE) issued a judgment (C‑376/22) in a case opposing Google Ireland Limited, Meta Platforms Ireland Limited and TikTok Technology Limited to the Kommunikationsbehörde (the Austrian National regulatory Authority – KommAustria) - on 9 November 2023. This judgment follows the request for a preliminary ruling made by the Verwaltungsgerichtshof (Supreme Administrative Court of Austria) under Article 267 TFEU on 24 May 2022. Google, Meta and TikTok, while established in Ireland, provide communication platform services abroad, in particular in...
EU: European Commission
Administrative arrangement between the Irish regulatory Authority and the European Commission to support the enforcement of the DSA
On 20 October 2023, the Directorate General Communications Networks, Content and Technology of the European Commission – DG CONNECT – responsible for digital policies, signed an administrative arrangement with the Irish media regulator (Coimisiún na Meán) to support the enforcement of the Digital Services Act (DSA). This bilateral arrangement follows the Commission Recommendations to member states for coordinating their response to the spread and amplification of illegal content on Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs), ahead...
EU: European Commission
European Commission recommendations to accelerate DSA governance to enhance response to online illegal content
At the end of August 2023, the Digital Services Act (DSA) became legally enforceable for designated Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs). For more information, refer to IRIS 2023-5:1/2 and IRIS 2023-9:1/7. The designated platforms have now completed the first annual risk assessment exercise to examine risks such as how illegal content might be disseminated through their services. On 18 October 2023, the European Commission published a set of recommendations for member states to coordinate their response to the spread and amplification of illegal...
EU: European Commission
Platform regulation and DSA implementation: ARCOM and European Commission increase cooperation
While the wars in the Middle East and Ukraine, together with recent terrorist attacks in France and Belgium, have only served to exacerbate the online dissemination of hate content and disinformation, these events and their repercussions have highlighted and increased the urgent need to implement the Digital Services Act (DSA). In this context, on 18 October, the European Commission adopted a recommendation urging each EU member state to appoint an independent authority to join a network of Digital Services Coordinators before 17 February 2024. Shortly afterwards, on 23 October, Roch-Olivier...
EU: European Parliament
IMCO Committee adopts Report on addictive design of digital platforms
On 25 October 2023, the European Parliament's Committee on Internal Market and Consumer Protection (IMCO) adopted an important new Report on the addictive design of online services and consumer protection in the EU single market. Notably, the Report stressed that the issue of addictive design is “not sufficiently covered” in existing EU legislation, and if unaddressed could lead to “further deterioration” in public health, especially affecting minors. Crucially, the Report called on the European Commission to examine which policy initiatives are needed and present legislation...
EU: European Parliament
Report adopted recommending new EU legislation on working conditions of artists and other cultural professionals
On 24 October 2023, the European Parliament’s Committee on Culture and Education (CULT) and Committee on Employment and Social Affairs (EMPL) adopted a notable Report on the social and professional situation of artists and workers in the cultural and creative sectors. Importantly, the Report requests that the European Commission submit proposals for legislative instruments establishing an EU Framework on the social and professional situation of artists and other professionals in the cultural and creative sectors (CCS). In particular, a Directive on “decent working conditions”...
[DE] Administrative Court overturns media authority decision on TV programme’s human dignity violation
In a ruling of 11 October 2023 (case no. 11 A 185/21), the Schleswig-Holsteinische Verwaltungsgericht (Schleswig-Holstein Administrative Court) overturned a decision of the Medienanstalt Hamburg/Schleswig-Holstein (Hamburg/Schleswig-Holstein media authority – MA HSH) alleging a breach of human dignity and programming guidelines by private broadcaster Sat.1. The MA HSH had ruled that a sequence in the real-life documentary series “Lebensretter hautnah – Wenn jede Sekunde zählt” showing a person who had suffered a serious seizure had been voyeuristic and sensationalist,...
[DE] Comprehensive revision of Saarland media law with new rules for public service broadcasting and media regulation
On 17 October 2023, the Saarland state parliament adopted a law modernising Saarland media law. Under the reform, a separate law concerning the public service broadcaster Saarländischer Rundfunk (SR) was created, with structural changes to its management and internal control. Meanwhile, the provisions relating to the supervisory body, the Landesmedienanstalt Saarland (LMS), were amended, including changes to its governing bodies and director election procedure as well as the broadening of its remit. SR is one of the nine regional public service broadcasters in Germany. Under the amendment,...
[DE] State media authorities’ new FAQs on media intermediary transparency obligations
On 10 October 2023, the German Landesmedienanstalten (state media authorities) published their new transparency-related FAQs for media intermediaries. The FAQs are designed to explain to intermediary services, i.e. mainly search engines and social networks, how they can meet their transparency obligations under the 2020 Medienstaatsvertrag (state media treaty – MStV). They also stress that these rules, which promote media diversity, apply regardless of the entry into force of the Digital Services Act (DSA), which also contains transparency obligations for online platforms and search engines...
[ES] Concern about the exposure of minors to harmful audiovisual content increases in Spain but parental control is rarely implemented
According to the latest Spanish Household Panel Survey, carried out by the National Commission on Markets and Competition (Comisión Nacional de los Mercados y la Competencia – CNMC), the concern about the exposure of minors to audiovisual content that could be detrimental to their physical and mental development is very high in Spain. However, perceptions vary depending on the age of the child. On the one hand, in households having children between 0 and 6 years of age, the concern revolves around explicitly violent content. On the other hand, in those households that have teenagers...
[ES] The Spanish National Commission on Markets and Competition agrees on the transfer of sensitive information to the Ministry of Economic Affairs and Digital Transformation regarding the obligations relating to the promotion of European audiovisual works
Article 5 of the Spanish General Law on Audiovisual Communication (Law 7/2010 of 31 March 2010) establishes a series of obligations relating to the promotion of European audiovisual works for television providers, electronic communication service providers broadcasting television channels and programme catalogue providers. According to this article, 5% of the revenues of these audiovisual providers must finance audiovisual works of various types (such as cinematographic films, films and television series, documentaries and animated series). To ensure this, the law establishes a system of quotas...
[FR] Publication of addendum to agreement amending media chronology
On 25 September, an addendum to the agreement amending media chronology of 24 January 2022 was adopted, providing for two experiments on the blackout period stipulated in the co-exploitation agreement between free-to-view television channels and subscription-based on-demand audiovisual media services. The Minister of Culture implemented the addendum under a decree of 29 September 2023. Under the agreement of 24 January 2022, platforms are required to wait 17 months after a film’s cinema release before making it available online, and must withdraw access to it when the free-to-view window...
[FR] Request to block pornographic website: Internet access providers can be taken to court before acting against hosting providers, publishers or authors
Two child protection organisations filed a summons against several Internet access providers, asking the court to order them to take every appropriate step to block access to various pornographic websites on French soil. The appeal court considered the requests inadmissible on the grounds that, before Internet access providers were asked to block access, it had to be proven that effective, rapid legal action could not be taken against the host, publisher or author, and that the organisations concerned had failed to do this. In addition, since all the websites concerned were published by a company...
[FR] National Assembly adopts Digital Safety and Regulation Bill
On 17 October, the French National Assembly adopted, on first reading, the Projet de loi visant à sécuriser et réguler l’espace numérique (Digital Safety and Regulation Bill), which had previously been adopted on first reading by the Senate on 7 July. Under the accelerated procedure launched by the government, a joint committee is now expected to meet, probably in December. This extensive piece of legislation aims to strengthen the “protection of minors online” and of “citizens in the digital world”, “confidence and competition...
[FR] Regulatory amendments concerning programming commitments and cinema passes
Under a recently adopted decree, the Code du cinéma et de l'image animée (Cinema and Animated Image Code – for more information about the process, see IRIS 2022-10:1/1) was amended to take into account certain recommendations contained in the report entitled “Cinéma et régulation - Le cinéma à la recherche de nouveaux équilibres : relancer des outils, repenser la régulation” (Cinema and regulation – Cinema in search of new balances : relaunching tools, rethinking regulation) that was submitted to the Ministers...
[GB] Ofcom determines GB News breached impartiality rules
An Ofcom investigation has concluded that an episode of Saturday Morning with Esther and Phil, which aired on GB News on 11 March 2023, breached due impartiality rules. Saturday Morning with Esther and Phil is a weekly two-hour discussion programme presented by Esther McVey and Philip Davies, two sitting Conservative Party Members of Parliament (MPs).This particular programme featured a pre-recorded interview between the two presenters and the finance minister, Jeremy Hunt MP. The interview focused on the government’s approach to economic and fiscal policies ahead of the...
[GR] New board in the National Council of Radio and Television but implementation of Article 30 AVMS Directive still pending
On 28 September 2023 the College of Presidents of the parliament decided on the appointment of new members to the board of the ESR (Ethniko Symvoulio Radiotileorasis, the Greek independent authority responsible for electronic media). Mrs Euterpe Koutzamani, former prosecutor of the Supreme Court and former vice president of the ESR, was appointed to the role of president, whilst Giannis Politis, journalist and political analyst, was appointed to that of vice president (both of these roles being full-time positions). A futher six individuals were appointed as new members (four of them being retired...
[IE] Irish Media Commission publishes a Designation Decision Framework for video-sharing platform services
On 10 November 2023, the Irish media regulator Coimisiún na Meán (the Media Commission) published a Designation Decision Framework (further referred to as “Framework”) for video-sharing platforms services (VSPS) to inform individual providers of online services of the assessment and decision-making process it intends to follow in order to determine whether a named service meets the defining criteria of a VSPS, and whether the provider of such a service is under Irish jurisdiction. The Online Safety and Media Regulation Act of 2022 amending the Broadcasting Act of 2009,...
[LU] Digital Services Act Implementation Bill proposed to Parliament
The Luxembourgish government agreed on a law for the implementation of the EU Digital Service Act (DSA) on 8 September 2023. Subsequently, under the responsibility of the Ministry of Economy, it deposited the bill with the Chambre des députés (Chamber of Deputies) on 14 September 2023. The bill proposes the provisions necessary in Luxembourgish law to implement the DSA concerning those parts of EU regulation that rely on additional national rules. The DSA establishes unified rules for a secure online environment to support the effective operation of the internal market for "intermediary...
[MD] Methodology for detecting disinformation approved by media regulator
Following public discussions, the Audiovisual Council (CA), the national regulatory authority in Moldova, approved in its meeting on 15 September 2023 a methodology for the detection and evaluation of cases of disinformation in audiovisual content. This methodology refers both to the need for implementation of the Republic of Moldova's Code of Audiovisual Media Services (AVMSC) in terms of counteracting disinformation on topics of public interest, as well as to the need for compliance with the EU legislation. These are the reasons for its adoption. The evaluation of a potential case of disinformation...
[NL] Media Authority updates guidance for video influencers
On 25 October 2023, the Commissariaat voor de Media (Dutch Media Authority – CvdM) published updated guidance for video influencers in the Netherlands. Notably, this resulted from recent discussions by the CvdM with video influencers who fall under its supervision, but “who do not yet sufficiently comply” with the rules under the Mediawet (Media Act), transposing the revised EU Audiovisual Media Services Directive (AVMSD) (see IRIS 2019-1/3 and IRIS 2021-1/24). This follows an earlier supervisory investigation into video-uploader compliance in May 2023, with the CvdM noting that...
[NL] National Coordinator for Combating Anti-Semitism recommends faster enforcement against online anti-Semitism
On 25 October 2023, the Nationaal Coördinator Antisemitismebestrijding (National Coordinator for Combating Anti-Semitism) issued a noteworthy recommendation, stating that both the Autoriteit Consument & Markt (Consumer and Markets Authority – ACM), and the Autoriteit Persoonsgegevens (Dutch Data Protection Authority – AP), “must immediately strictly monitor” whether online platforms Instagram and X (formerly Twitter) are complying with the law and tackling online anti-Semitism. Notably, the ACM will be designated as the national Digital Services Coordinator in the...
[PT] Positive compliance of Portuguese television channels with European and independent works quotas
In 2022, the majority of Portuguese broadcasters complied with the pre-determined quota of transmission time for Portuguese, European and independent works. The annual report, prepared by the national Media Regulatory Authority (ERC), points out, however, that the second public broadcaster (RTP2) has failed to meet its obligations in terms of broadcasting Portuguese works in 20% of its transmission time. All of the other free-to-air generalist channels, as well as the generalist pay-TV channels (mainly dedicated to informative services), have fulfilled their obligations. The quotas were...
United States of America
[US] Hollywood strike: actors reach agreement
Following the recent massive strikes in Holywood, screenwriters and producers reached a tentative agreement on 24 September 2023 (see IRIS 2023-9:1/5), while the actors strike went on for additional weeks until very recently in November 2023. A tentative agreement to amend the 2020 Codified Basic Agreement between SAG-AFTRA (actors) and the Alliance of Motion Picture and Television Producers was reached on 10 November 2023. The amendments cover areas such as: - Meaningful protections around the use of artificial intelligence, including informed consent and compensation for the creation...