IRIS newsletter 2024-8
Publisher:
European Audiovisual Observatory
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F-67000 STRASBOURG
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E-mail: obs@obs.coe.int
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Comments and Suggestions to: iris@obs.coe.int
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
The summer holidays provide an ideal opportunity to disconnect from work or even to engage in a digital detox. This newsletter may serve as a good back-to-school update, to help you catch up with the numerous media developments that have occurred over the sunny season.
Online platforms have recently had their fair share of attention with the CJEU dismissing ByteDance's attempt to overturn the European Commission's designation of TikTok as a gatekeeper, while the platform also committed to permanently withdraw its TikTok Lite Rewards programme from the EU. Other platforms experienced their own share of scrutiny: in the Netherlands, the courts ruled on the suspension of an online news outlet from YouTube’s monetisation programme and X was at the centre of a "shadowbanning" case, for silently hiding a user's account from search suggestions. For its part, Instagram was temporarily blocked in Türkiye.
The broadcasting sector, particularly public service media (PSM), saw notable developments too with a decision by the Italian regulator about hidden advertising, and Slovakia's new Act on Public Broadcasting. In Austria, the reform of the ORF law to ensure the independence and pluralism of the PSM, as mandated by the Constitutional Court, is more than ever at the centre of discussions.
I have no doubt that everyone will find something of interest in this month’s edition, which also features the initiation of proceedings by the European Commission regarding the failure to appoint Digital Service Coordinators, Poland's progress on transposing the CDSM Directive, and the Council of Europe's newly released report on the metaverse.
Enjoy the read!
Maja Cappello, Editor
European Audiovisual Observatory
International
COUNCIL OF EUROPE
CoE: Media Division
The Council of Europe and IEEEL publish a joint report on "The Metaverse and its Impact on Human Rights, the Rule of Law, and Democracy"
The report entitled "The Metaverse and its Impact on Human Rights, the Rule of Law, and Democracy", jointly developed by the Council of Europe and the Institute of Electrical and Electronics Engineers (IEEE) Standards Association under the Council of Europe Digital Partnership and launched at the EuroDIG (European Dialogue on Internet Governance) Conference last June, is now publicly available for download. The report examines how the metaverse could reshape our societies and the associated benefits, risks and challenges. Drawing on insights from over 50 international experts,...
Hungary
European Court of Human Rights: Boronyák v. Hungary
The European Court of Human Rights (ECtHR) delivered an interesting judgment on the impact of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) within private relations and the positive obligation of the authorities to safeguard the right to freedom of expression and information in contractual relations. The ECtHR unanimously found that imposing a fine on an actor for having disclosed confidential information about the terms of his contract with a TV company, did not violate the actor’s freedom of expression. The Court held that the dissemination...
Russian Federation
European Court of Human Rights: Ukraine v. Russia (re Crimea)
In its judgment in the case of Ukraine v. Russia, the Grand Chamber of the European Court of Human Rights (ECtHR) highlighted the repression of freedom of expression and media freedom in Russia-occupied Crimea since 27 February 2014. The Court’s finding of systemic violations of Article 10 of the European Convention on Human Rights (ECHR) is part of other gross or large-scale violations by Russia of several provisions of the ECHR and its additional Protocols, including of Article 2 (right to life), Article 3 (prohibition of inhuman treatment), Article 5 (prohibition of unlawful deprivation...
EUROPEAN UNION
EU: European Commission
Infringement proceedings against six EU member states for their failure to designate digital services coordinators
On 25 July 2024, the European Commission sent a letter of formal notice to Belgium, Croatia, Luxembourg, the Netherlands, Spain and Sweden, indicating their failure to comply with the Digital Services Act (DSA). These member states had failed to designate or afford the necessary powers to their Digital Services Coordinators (DSCs) – national competent authorities responsible for the supervision of providers of intermediary services and enforcement of the DSA. The deadline for the designation of DSCs passed on 17 February 2024. The responsibility for monitoring the application and implementation...
EU: European Commission
Rule of Law Report 2024, including media freedom and pluralism
On 24 July 2024, the European Commission published its 2024 Rule of Law Report, which is the fifth annual report as part of the European Rule of Law Mechanism (see, for example, IRIS 2023-8/18). The purpose of the Rule of Law Report is to examine developments across all EU member states, both positive and negative, in four key areas for the rule of law: the justice system, the anti-corruption framework, media pluralism and freedom, and other institutional issues related to checks and balances. The report includes country chapters for all 27 member states and, for the first time, the 2024 report...
EU: European Commission
[EU] TikTok to permanently withdraw TikTok Lite rewards programme from the EU
In April 2024, the European Commission opened proceedings against TikTok (a designated Very Large Online Platform) for its new “Reward Program”, which allows users to earn points which can be exchanged for rewards, including Amazon vouchers, gift cards via PayPal or TikTok's coin currency. The Commission was particularly concerned by the impact of such functionality on minors. According to the latter, the programme could infringe provisions of the Digital Services Act (DSA) on the diligent assessment of risks (particularly in relation to the addictive effect of the programme) and...
EU: General Court
Bytedance’s action dismissed by the CJEU
On 5 September 2023, the European Commission designated Bytedance and the companies which it controls directly or indirectly (including TikTok), as a gatekeeper under Article 3(1) of the Digital Markets Act (DMA). The DMA contributes, inter alia, to the proper functioning of the internal market by laying down rules to ensure the contestability and fairness of markets in the digital sector in general, and for business users and end users of core platform services provided by gatekeepers in particular. It aims to limit anti-competitive practices, imposing requirements and constraints on...
NATIONAL
Austria
[AT] Austrian Constitutional Court mandates reform of ORF law to ensure independence and pluralism
On 29 September 2024, the national parliamentary election in Austria will shape the course of the implementation of a ruling by the Constitutional Court (the VfGH), which declared certain provisions governing Austria's public service media (PSM) organisation, the Austrian Broadcasting Corporation (ORF), unconstitutional. The ruling issued on 5 October 2023 pursuant to Article 140 of the Federal Constitutional Law (B-VG), following a public oral hearing and a request for judicial review, will take effect on 31 March 2025, with the previous provisions not being reinstated. The legislature...
Germany
[DE] Berlin Administrative Court rules on regional advertising ban
In a recently published decision of 22 April 2024 (Case No. 32 K 1/23), the Verwaltungsgericht Berlin (Berlin Administrative Court – VG Berlin) upheld a complaint concerning a breach of the ban on regional advertising lodged by a Landesmedienanstalt (state media authority) against a national television broadcaster. It held that the advertising ban, enshrined in the German Medienstaatsvertrag (state media treaty – MStV), was not unconstitutional. However, a different court had previously found that the ban, which was also the subject of a 2021 European Court of Justice ruling in the...
[DE] European Commission criticises planned reform of youth media protection law in Germany
In April 2024, on the basis of the notification obligations provided for in Directive (EU) 2015/1535, the German Länder, as the competent legislative body, notified the European Commission of a draft amendment to the Jugendmedienschutz-Staatsvertrag (State Treaty on the Protection of Minors in the Media – JMStV). However, in its opinion of 1 July 2024, the European Commission was critical of the draft. Although it shared the objective of providing children and young people with safe access to online content and protecting them from harmful content, the Commission considered that, as...
[DE] First national dispute settlement body for online platforms established
The Digitale-Dienste-Gesetz (Digital Services Law – DDG), which entered into force in May 2024, transposed certain provisions of Regulation (EU) 2022/2065 (Digital Services Act – DSA) into German law. On 12 August 2024, the Bundesnetzagentur (Federal Network Agency – BNetzA), appointed as Germany’s Digital Services Coordinator under the DDG, certified the first national dispute settlement body for online platforms. The Berlin-based User Rights GmbH was the first organisation to submit an application to the BNetzA and will now assume its responsibilities in accordance with...
France
[FR] ARCOM clarifies monitoring of TV and radio channels’ respect for pluralism
The Autorité de régulation de la communication audiovisuelle et numérique (the French audiovisual regulator – ARCOM) published a decision dated 17 July 2024, in which it issued new rules on the monitoring of private and public broadcasters’ compliance with their obligations regarding pluralism of opinion. In its decision, the regulator explained the conditions for the implementation of the Conseil d’Etat (Council of State) decision of 13 February 2024 (see IRIS 2024-3:1/12), in which ARCOM was given six months to review the compliance of TV channel CNews at...
[FR] Meta breached contract by closing Facebook account of historian who denounced Daesh abuses
In a ruling of 5 June 2024, the Tribunal Judiciaire de Paris (Paris Judicial Court) passed judgment in a case between a historian and the company Meta Platforms Ireland Limited, which had closed her Facebook account after she published an article denouncing the abuses committed by the Daesh movement in Africa. The historian had, in particular, complained of a breach of contract and the unfairness of the termination clause contained in the social network’s terms of service. The court ruled firstly on Meta’s fulfilment of its contractual obligations. It analysed the content of Facebook’s...
[FR] RSF case review: ARCOM urges CNews to meet pluralism obligations
In its decision of 13 February 2024 concerning Reporters Without Borders (RSF), the Conseil d’Etat (Council of State) asked the Autorité de régulation de la communication audiovisuelle et numérique (the French audiovisual regulator – ARCOM) to review RSF’s request that it serve a formal notice to CNews, requiring it to meet its obligations with regard to pluralism and independence of information. The regulator issued its decision on 29 July. In order to assess the channel’s overall respect for pluralism, ARCOM explained, in line with the Conseil...
Italy
[IT] AGCOM defines icon to access digital terrestrial television channels
The Italian Communications Authority (AGCOM), by means of Resolution No. 259/24/CONS of 10 July 2024, published on 24 July, approved a regulation aimed at ensuring the immediate, easy, and clear accessibility of digital terrestrial television content, as provided by the Consolidated Law on Audiovisual Media Services (TUSMA) and its Resolution No. 294/23/CONS. This regulation was adopted following a specially established technical committee, in which associations of broadcasters and equipment manufacturers participated. These stakeholders progressively aligned their respective positions, allowing...
[IT] AGCOM adopts regulations on out-of-court dispute resolution bodies and trusted flaggers under Articles 21 and 22 DSA
In the Board meeting of 24 July 2024, the Italian Communication Authority (Autorità per le Garanzie nelle Comunicazioni – “AGCOM”) approved the Regulations laying down the procedural rules for the certification of out-of-court dispute resolution bodies between online platform providers and service recipients (Resolution No. 282/24/CONS) and for the issuance of the qualification as trusted flaggers (Resolution No. 283/24/CONS) under, respectively, Articles 21 and 22 of Regulation (EU) 2022/2065 (“DSA”). The Regulations, which will enter into force on 15 September...
[IT] AGCOM sanctions RAI for hidden advertising during the Sanremo Festival
The Italian Communications Authority (AGCOM), by means of Resolution No. 94/24/CSP dated 24 July 2024, published on 5 August 2024, fined the Italian broadcasting company RAI EUR 206 580.00, equivalent to twenty times the minimum fine, for an incident involving the shoes worn by John Travolta during the 74th edition of the Sanremo 2024 Italian Song Festival. The Authority deemed it a case of covert advertising, concluding that the current regulations on the proper disclosure of advertising messages had not been adhered to. RAI argued that it had a specific contract with the renowned actor prohibiting...
Moldova
[MD] Media subsidy fund
On 2 August 2024, the Law on the Media Subsidy Fund entered into force in Moldova, adding to the framework for the promotion of media pluralism in the country. The budget for the fund is drawn from the annual national budget; from donations, sponsorship and grants from legal entities and individuals in Moldova and abroad; and from other financial sources not prohibited by law (Article 10). The “priority areas” for the subsidisation of media institutions are established on an annual basis by the Ministry of Culture, based on public discussions (Article 12) and in line with the...
Netherlands
[NL] District Court of Amsterdam rules that X has violated the DSA and the GDPR by “shadowbanning” its user
On 5 July 2024, the District Court of Amsterdam (Rechtbank Amsterdam) declared that Twitter International Unlimited Company – the Irish subsidiary of X – violated Articles 12 and 17 of the Digital Services Act (DSA) by failing to designate a single point of contact for recipients of its services and silently hiding its user’s account from search suggestions (the practice also known as ‘shadowbanning’). The proceedings were initiated by the Dutch entrepreneur and PhD student Danny Mekić, who has a paid X Premium subscription. In October 2023, he made a post criticising...
[NL] Online news outlet’s proceedings over suspension from YouTube monetisation programme
On 2 August 2024, the Amsterdam District Court (Rechtbank Amsterdam) delivered a significant judgment on YouTube’s suspension of an online news outlet from YouTube’s monetisation programme, over the channel’s “misleading content”, including on the climate crisis. Notably, the Court rejected the news outlet’s claim that there had been a violation of its right to freedom of expression, and said YouTube had the freedom to create an “advertising-friendly environment”, where certain channels are deemed “unsuitable for advertising” over misleading...
[NL] Public broadcaster’s interview using false pretences seriously violated journalistic standards
On 12 July 2024, the Ombudsman of the Dutch Public Broadcasting Foundation (Stichting Nederlandse Publieke Omroep) issued a significant decision on a recent controversial interview conducted by the public broadcaster PowNed. Notably, the Ombudsman held that the interview violated the Journalistic Code of Conduct and could be “damaging to the trust in journalism as a whole, and in public broadcasting in particular”. The case garnered considerable public debate, with the broadcaster admitting it was a “tasteless item” and was “completely disrespectful to women in general”....
Poland
[PL] Amendments to the Polish Copyright and Related Rights Act and transposition of the DSM Directive
Due to the obligation to implement Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Official Journal of the EU L 130 of 17.05.2019, p. 92) (the DSM Directive), there has been a need to amend the Polish Copyright and Related Rights Act of 4 February 1994 (Dz.U.2022.2509 consolidated text of 6 December 2022 – the Act). The amendment to the Act, from 26 July 2024 (Journal of Laws 2024, item 1254) entered into force, with few exceptions, on 20 September...
Slovakia
[SK] The Act on the public broadcaster enters into force
The Act on Slovak Television and Radio and on Amendments to Certain Acts was adopted by the National Council (the Parliament) on 20 June 2024 and promulgated on 1 July 2024. It effectively replaced the earlier Act on Radio and Television of Slovakia, No.532/2010. The Act changed the name of the public broadcaster: Slovak Television and Radio (Slovenská televízia a rozhlas – STVR) is the legal successor to Radio and Television of Slovakia (Rozhlasu a televízie Slovenska – RTVS) and took over all its rights and obligations on the day the Act was promulgated. The...
Republic of Türkiye
[TR] Türkiye blocks access to Instagram for nine consecutıve days
On 2 August 2024, access to the social media platform Instagram was blocked on the basis of a decision taken by the Turkish Information and Communication Technologies Authority (ICTA) that same day. Although the ICTA did not provide a specific reason for the blocking decision, it was stated later by government officials that the decision to block the platform was taken on the grounds that the social media platform did not abide by Turkish laws, in particular those regarding “catalogue crimes” and, furthermore, that it did not comply with the values and sensitivities of Turkish society....
United States of America
[US] Disney, Fox and Warner’s alliance in sports streaming blocked by District Court decision
On 16 August 2024, the US District Court Judge Margaret Garnett issued a temporary injunction freezing the launch of the streaming service planned by Walt Disney Co., Fox Corp. and Warner Bros. Discovery. For a monthly fee of USD 43, the three players planned, with the signature of a non-binding term sheet on 6 February 2024, to launch their new platform dedicated to live sports competitions. However, on 8 April 2024, a direct competitor called “Fubo", which also offers sports content, filed a complaint against the alliance, accusing it of violating competition law. According to...
