IRIS newsletter 2024-3
Publisher:
European Audiovisual Observatory
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E-mail: obs@obs.coe.int
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Executive Director: Susanne Nikoltchev
Maja Cappello, Editor • Sophie Valais, Amélie Lacourt, Justine Radel, Deputy Editors (European Audiovisual Observatory)
Documentation/Press Contact: Alison Hindhaugh
Tel.: +33 (0)3 90 21 60 10
E-mail: alison.hindhaugh@coe.int
Translations:
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Paul Green • Marco Polo Sarl • Nathalie Sturlèse • Brigitte Auel • Erwin Rohwer • Sonja Schmidt • Ulrike Welsch
Corrections:
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais and Amélie Lacourt • Linda Byrne • Glenn Ford • David Windsor • Aurélie Courtinat • Barbara Grokenberger
Web Design:
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
ISSN 2078-6158
© 2024 European Audiovisual Observatory, Strasbourg (France)
Editorial
Reading the many important developments that the present Newsletter reports on, the following words of Nelson Mandela spring to mind: “Remember to celebrate milestones as you prepare for the road ahead”. Celebrations are indeed in order as several long-awaited milestones were reached at EU level regarding the Regulation on Political Advertising, the Anti-SLAPP Directive, the EMFA and the AI Act.
Another milestone was also reached with the full entry into force of the DSA package. Applicable to VLOPs and VLOSEs since August 2023, the DSA started applying to all other online intermediaries in the European Union in February 2024. In parallel, the obligations placed upon gatekeepers under the DMA came into force in March 2024.
However, this is as much of a milestone as it is a starting point, as the implementation and thorough oversight by the European Commission and the DSCs are bound to raise questions and introduce new challenges. In February, the Court of Justice issued its inaugural order on the enforcement of the DMA, addressing the European Commission's designation of Bytedance as a gatekeeper.
In this edition of the Newsletter, you will also discover many other developments at national level, in the EU and beyond, from legal reforms to case law and decisions by administrative bodies, that will certainly help you prepare for the road ahead.
I hope you enjoy the read!
Maja Cappello, Editor
European Audiovisual Observatory
International
COUNCIL OF EUROPE
France
European Court of Human Rights: Tariq Ramadan v. France
The European Court of Human Rights (ECtHR) has decided that a criminal conviction in France of the Swiss public intellectual and Islamologist Tariq Ramadan was not a violation of his right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). Ramadan was convicted for having disseminated information about the identity of the alleged victim of a rape (X) for which he was facing trial in France. Ramadan had revealed X’s identity in a press release, during a TV interview and in a book. The ECtHR dismissed his complaint under Article 10 ECHR as manifestly...
Russian Federation
European Court of Human Rights: Podchasov v. Russia and Škoberne v. Slovenia
A judgment of 13 February 2024 in the case of Podchasov v. Russia deals with the right to privacy as protected under Article 8 of the European Convention on Human Rights (ECHR) in relation to the retention of communications data and content by Internet service providers, the protection of encrypted messages and access by law-enforcement authorities and security services to such data and content. The judgment in Podchasov v. Russia is highly relevant for all member states of the ECHR, also in relation to the earlier case law of the European Court of Human Rights (ECtHR) on deploying bulk or secret...
EUROPEAN UNION
EU: Court of Justice of the European Union
CJEU rules on TV advertising time limits
In a decision of 3 February 2024 in case C-255/21 (Reti Televisive Italiane) concerning the interpretation of Article 23(2) of the Audiovisual Media Services Directive (AVMSD) and the limits it imposes on broadcasting time for advertising, the Court of Justice of the European Union (CJEU) ruled that announcements promoting radio programmes shown on television channels belonging to the same broadcasting group do not, in principle, constitute promotion of the television broadcaster’s "own" programmes. The decision followed supervisory measures taken by the Italian broadcasting...
EU: Court of Justice of the European Union
CJEU fines Ireland for failing to transpose the revised AVMSD
On 29 February 2024, the Court of Justice of the European Union (CJEU) imposed fines on Ireland for failing to notify the full implementation of the revised Audiovisual Media Services Directive (AVMSD). Several countries – Czechia, Romania, Slovakia, Spain and Ireland – had been referred to the CJEU by the European Commission on 19 May 2022 for failing to fully transpose the AVMSD within the required time frame. Since then, all except Ireland have notified the European Commission of the full transposition of the AVMSD. The CJEU ruled that, by failing to communicate the...
EU: Court of Justice of the European Union
CJEU: first pronouncement on the application of the DMA
On 9 February 2024, the Court of Justice of the European Union published an order in a case opposing Bytedance to the European Commission. On 5 September 2023, the European Commission designated Bytedance, which provides the entertainment platform TikTok through local subsidiaries, as a gatekeeper under Article 3 of the Digital Markets Act (DMA). The Commission based its decision in particular on the fact that the applicant met the quantitative thresholds and that it had not demonstrated the existence of circumstances which would render the conditions for the designation of a gatekeeper...
EU: European Commission
Update on the DSA package
DSA Applicable to very large online platforms (VLOPs) and very large online search engines (VLOSEs) since August 2023, the Digital Services Act (DSA) started applying to all other online intermediaries in the European Union on 17 February 2024. Under Article 49(2) of the DSA, platforms which are not designated as VLOPs or VLOSEs are to be supervised at national level by Digital Services Coordinators (DSCs), in contrast to VLOPs and VLOSEs which are supervised by the European Commission itself. The DSCs are independent regulators that will work with the Commission to ensure the correct...
EU: European Parliament
Artificial Intelligence Act
Following a previous article on the provisional agreement on the Artificial Intelligence Act (AI Act) at interinstitutional level (IRIS 2024-1:1/9), the co-legislative procedure to adopt the Act is ending. On 13 March 2024, the European Members of the Parliament (MEPs) backed the regulation by 523 votes in favour to 46 against and 49 abstentions. The text is now to be adopted by the Council of EU. The AI Act will enter into force twenty days after its publication in the official journal. As a regulation, the text is directly applicable to the legal order of member states of the European...
EU: European Parliament
EMFA: Parliament adopts the regulation
Following a previous article on the provisional agreement on the European Media Freedom Act (EMFA) at interinstitutional level (IRIS 2024-1:1/7), the co-legislative procedure to adopt the EMFA is reaching its end. On 13 March 2024, the European Members of the Parliament (MEPs) backed the EMFA by 462 votes in favour to 92 against, and 65 abstentions. The Council of the European Union will now adopt the EMFA after the Parliament's first reading. The EMFA will enter into force twenty days after its publication in the official journal. As a regulation, the text is directly applicable to the...
EU: European Parliament
European Parliament adopts proposed regulation on the transparency and targeting of political advertising
On 27 February 2024, the European Parliament adopted, by 470 in favour to 50 against (and 105 abstentions), the proposal for a regulation on the transparency and targeting of political advertising. This much-anticipated proposed regulation was first published by the European Commission in November 2021, and had been planned to enter into force by April 2023, a year before the 2024 elections to the European Parliament, to be held on 6-9 June 2024 (see IRIS 2022-1/12). However, the legislative procedure moved slower than planned, and in February 2023, amendments were adopted by the parliament on...
EU: European Parliament
European Parliament vote on the anti-SLAPP Directive
In April 2022, the European Commission published a legislative proposal for a Directive on the protection of journalists and human rights defenders from manifestly unfounded or abusive court proceedings, now commonly referred to as the anti-SLAPP Directive. The Commission’s proposal aimed at providing safeguards for natural and legal persons who engage in public participation on matters of public interest against manifestly unfounded or abusive court proceedings, which are initiated to deter them from public participation. The prevalence of SLAPPs (strategic lawsuits against public participation) has...
NATIONAL
Austria
[AT] The end of official secrecy (Amtsgeheimnis) and a new right to freedom of information
On 12 February 2024, Austrian legislators took the last remaining step to remove a historic and blatant obstacle to freedom of information. From September 2025, Austria will have a constitutionally guaranteed right to information for citizens vis-à-vis the state, together with the necessary rules for its enforcement. Both the National Council and the Federal Council of the Austrian Parliament gave the green light for a corresponding amendment to the Constitution and an accompanying Freedom of Information Act with the required two-thirds majority. The new legal regime is to end the decades-long...
Belgium
[BE] Implementation of the Digital Services Act (DSA)
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act) is fully applicable since17 February 2024 (Article 93). Although all aspects of an EU Regulation are binding on and directly applicable in all member states, its application requires the member states to adopt various measures. In this case, for example, they are required to designate “one or more competent authorities to be responsible for the supervision of providers of intermediary services and enforcement...
Cyprus
[CY] Draft Bill on the Regulations of Video Sharing Platform Services established in the Republic of Cyprus
The December 2021 amendment of the Law on Radio and Television Organisations 7(I)/1998 transposed the Audio Visual Media Services Directive 2018/1808/EU into national law of the Republic of Cyprus (RoC). Upon the transposition and the enactment of the new law, the Cyprus Radio Television Authority (CRTA) became the competent authority for securing and enforcing compliance of Video Sharing Platform (VSP) providers under its jurisdiction with the regulatory provisions. It is reminded that some of the biggest, in terms of revenues and users, VSP providers that distribute adult entertainment content...
Germany
[DE] Media authority’s complaint about RTL split-screen advertising upheld
On 7 February 2024, the Verwaltungsgericht Hannover (Hanover Administrative Court – VG Hannover) rejected an appeal by the television broadcaster RTL against a complaint lodged by the Niedersächsische Landesmedienanstalt (Lower Saxony state media authority – NLM). The complaint concerned an alleged breach of the requirement for clear visual separation of advertising and programme content during "split-screen" advertising broadcast during an RTL television programme. "Split-screen" advertising for a smartphone, in which editorial content and advertising were...
[DE] Federal Supreme Court submits questions to CJEU on ‘communication to the public’
Under a decision of 8 February 2024 in case number I ZR 34/23, the first civil chamber of the German Bundesgerichtshof (Federal Supreme Court – BGH) submitted three preliminary questions to the Court of Justice of the European Union (CJEU), requesting clarification of whether a retirement home operator who retransmits radio and television programmes received via a satellite receiver to the home’s residents via a cable network is "communicating to the public" within the meaning of copyright law and should therefore enter into licensing agreements. The three questions...
[DE] Broadcasting Commission adopts key aspects of public service broadcasting reforms
The Rundfunkkommission (Broadcasting Commission) of the 16 Länder, which are responsible for media regulation in Germany, adopted the key aspects of public service broadcasting reforms at a closed meeting in Bingen am Rhein on 25/26 January 2024. The meeting was held a few days after the publication of a report by the Zukunftsrat (Future Council), an independent panel of experts set up by the Länder to consider the future development of public service broadcasting. The Future Council had been tasked with developing a long-term vision for the future of public service broadcasting and...
Spain
[ES] CNMC appointed as Digital Services Coordinator in Spain
The Spanish National Markets and Competition Commission (Comisión Nacional de los Mercados y la Competencia, CNMC) has been appointed by the Ministry for Digital Transformation and Public Service as the Spanish Digital Services Coordinator. This decision aligns with the requirements of the Digital Services Act (DSA), which demands the appointment of an independent authority with no ties to external influences, and with sufficient autonomy to manage its budget. The CNMC is already responsible for supervising the audiovisual market (among other areas such as energy, postal services and...
France
[FR] Conseil d’État reviews ARCOM’s powers to monitor pluralism and independence of information
A few days before the Autorité de régulation de la communication audiovisuelle et numérique (the French audiovisual regulator – ARCOM) launched a call for applications for frequency allocations, with the licences held by 15 national television services, including CNews, due to expire soon, the Conseil d’État (Council of State) issued an important decision strengthening the regulator’s powers to monitor audiovisual media services’ compliance with their obligations concerning the honesty, pluralism and independence of information. The Reporters...
[FR] Respect for children’s image rights on the Internet: provisions of the law of 19 February 2024
Designed to improve the protection of the image rights of children whose parents publish photographs and videos of them on social media, the law “guaranteeing respect for children’s image rights” was published in the Official Journal on 19 February. This practice, known as ‘sharenting’, carries various risks, including online identity fraud, blackmail, cyberstalking, child prostitution and child pornography. The Child Influencers Act of 19 October 2020 was a first step in protecting the image rights of children who appear in videos posted on social networks. However,...
[FR] Senate adopts bill on support for the French film industry at first reading
Tabled by Céline Boulay-Espéronnier, Sonia de La Provôté and Jérémy Bacchi on 17 September 2023 and adopted by the Senate on 14 February 2024, the bill on support for the French film industry was drawn up on the basis of a report by the same authors entitled “Cinema fights back: between resilience and cultural exception, an important art form with a future” (IRIS 2023-7:1/24). The bill aims firstly to make cinema operators’ lives easier by simplifying the management of unlimited-access cinema passes. Nearly 25 years after the passes were...
United Kingdom
[GB] The House of Lords Communications and Digital Committee publishes its report on AI large language model
On 2 February 2024, the House of Lords Communications and Digital Committee (a Lords Select Committee that considers the media, digital and creative industries) published its inquiry report on large language models (LLMs) and generative AI. The Committee forecasts AI development trends over the next three years, contrasting them with the regulatory stance outlined in the government’s March 2023 AI White Paper. It criticises the government’s disproportionate emphasis on AI safety, warning of missed opportunities. Priority recommendations highlighted in the report include support for...
Italy
[IT] Protection of minors: AGCOM intervenes to remove videos from TikTok
Following an intervention by the Italian Communications Authority (AGCOM), the video-sharing platform TikTok, based in Ireland, has proceeded to remove several videos from its platform, all related to the so-called "French scar". The videos identified involve challenges (or so-called challenges) related to the phenomenon known as the "French scar" where very young participants intentionally bruise themselves and create red marks by squeezing the skin of their cheeks around the cheekbones. The purpose behind this practice is to pretend to have been involved in a physical altercation...
Netherlands
[NL] Final decision issued on broadcaster Ongehoord Nederland’s recognition as a public broadcaster
On 19 December 2023, the newly appointed Secretary of State for Culture and Media issued a high-profile final decision, refusing a request by the Stichting Nederlandse Publieke Omroep (Dutch Public Broadcasting Foundation - NPO) to withdraw the recognition of the broadcaster Ongehoord Nederland (ON!) as a public broadcaster. This follows the previous Secretary of State for Culture and Media issuing a provisional decision in November 2023, also refusing the NPO’s request to withdraw the recognition of Ongehoord Nederland as a public broadcaster (see IRIS 2024-1/16). The notable procedure...
[NL] Minister provisionally designates Digital Services Coordinator
On 11 February 2024, the Minister for Economic Affairs issued an important Ministerial Decision, “provisionally” designating the Autoriteit Consument & Markt (Netherlands Authority for Consumers and Markets – ACM) as the national Digital Services Coordinator in the Netherlands under the EU landmark Digital Services Act (DSA) (see, for example, IRIS 2023-3/18 and IRIS 2023-5/2). Notably, the Dutch government published the Digital Services Act Implementation Bill in July 2023, which included provisions designating the ACM as the Digital Services Coordinator and designating...
