IRIS newsletter 2022-10
European Audiovisual Observatory
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Executive Director: Susanne Nikoltchev
Maja Cappello, Editor • Francisco Javier Cabrera Blázquez, Sophie Valais, Julio Talavera Milla, Deputy Editors (European Audiovisual Observatory)
Artemiza-Tatiana Chisca, Media Division of the Directorate of Human Rights of the Council of Europe, Strasbourg (France) • Mark D. Cole, Institute of European Media Law (EMR), Saarbrücken (Germany) • Bernhard Hofstötter, DG Connect of the European Commission, Brussels (Belgium) • Tarlach McGonagle, Institute for Information Law (IViR) at the University of Amsterdam (The Netherlands) • Andrei Richter, Central European University (Hungary)
Council to the Editorial Board: Amélie Blocman, Legipresse
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 Julio Talavera Milla • Aurélie Courtinat • Barbara Grokenberger • Glenn Ford • Claire Windsor
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2022 European Audiovisual Observatory, Strasbourg (France)
2022 is coming slowly to an end, and what was supposed to be a year of celebration for us (with good reason: the European Audiovisual Observatory’s 30th anniversary!) turned out to be a rather bleak one. With Europe not completely out of COVID’s frying pan, our old continent fell into the fire of what we all deemed unthinkable: war. As a direct consequence, we saw Europe’s most populous country cease to be a member state of both the Council of Europe and the European Audiovisual Observatory.
During this year, we have been following the many legal developments fuelled by Russia’s unprovoked act of aggression. Beyond our monthly reporting, the Observatory published a note that discusses the legal and institutional framework behind the EU sanctions against the Russian state-owned channels RT and Sputnik. We are now releasing a new IRIS Extra report that provides information on legislative measures and case law that have appeared in Ukraine and elsewhere in Eastern Europe (Estonia, Latvia, Lithuania and Moldova) in respect of the audiovisual media from Russia and Belarus, beginning with the 2014 annexation of Crimea. It reports on sanctions on broadcasters as a specific instrument to cease propaganda and disinformation from Moscow and/or Minsk.
This is not, however, the only topic we have engaged with this year. Anticipating the recent EMFA proposal, we released an IRIS Plus report that looks at the various aspects of governance of public service media and its role in safeguarding their independence. Following in the steps of the amended AVMSD, in May we published an IRIS Plus on the rules concerning the financial obligations for VOD services in the EU, that we are now republishing in an updated version. We are putting the finishing touches to an IRIS Plus on users’ empowerment against disinformation online and an IRIS Special on prominence of European works and of services of general interest. Last but not least, and as usual, we are rounding off the year with the present 10th issue of our legal newsletter.
On behalf of our team, let me wish you a good end to 2022 and an enjoyable read of our many reports!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Jorge López v. Spain
The European Court of Human Rights (ECtHR) has found inadmissible the complaint of a Spanish rapper who had been convicted and sentenced to prison because some of his songs justified or publicly praised terrorism. The ECtHR agreed with the findings of the Spanish courts that the songs and videos available on YouTube and Facebook justified and glorified terrorism, and incited hatred and enmity on various grounds. Therefore, the ECtHR found the rapper's complaint regarding the alleged violation of his right to freedom of expression as guaranteed under Article 10 of the European Convention...
European Court of Human Rights: Rabczewska v. Poland
The European Court of Human Rights (ECtHR) has confirmed the application of the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) in relation to a conviction for offending the religious feelings of others through publicly insulting the Bible. As the statements expressed in an interview for a news website had not amounted to hate speech and were neither an abusive attack, nor threatening public order, the ECtHR found a violation of Article 10 ECHR. The applicant in this case was Dorota Rabczewska, a popular pop singer known as Doda. In 2009 she...
European Court of Human Rights: Anatoliy Yeremenko v. Ukraine
The European Court of Human Rights (ECtHR) has delivered a judgment concerning defamation proceedings against a journalist following the publication of an article in a weekly newspaper on alleged judicial corruption. The journalist also complained about an injunction ordering to take down the article from the newspaper’s website pending the examination of the defamation case. The ECtHR found that, in holding the journalist liable for defamation, the domestic courts had not performed the required balancing exercise between the conflicting interests of the right to reputation and the right...
Public value list published
The Landesmedienanstalten (state media authorities) have published a so-called "public value list", ordered alphanumerically, of media (television, radio and telemedia) that, through their content, significantly contribute to the formation of public opinion. Inclusion in the public value list is meant to represent a special seal of quality for the services concerned. Public-value services were selected on the basis of the criteria set out in Article 84(5)(2) of the Medienstaatsvertrag (state media treaty – MStV), which the media authorities had explained in more detail in a statute...
[DE] Broadcasting Commission resolution on the current state of public broadcasting
Following its meeting on 22 September 2022, the Broadcasting Commission of the German Länder published a resolution on the current state of public broadcasting in Germany. The Broadcasting Commission provides a permanent forum for the state and senate chancelleries of the Länder to discuss issues relating to media policy and legislation in and for Germany. In its resolution, the Broadcasting Commission agreed that recent events within individual ARD broadcasting companies, including RBB (Rundfunk Berlin-Brandenburg) following allegations against its former director and the former chair...
[DE] Constitutional Court can inform journalists in advance
In a judgment of 25 August 2022 (case no. 3 K 606/21), the Verwaltungsgericht Karlsruhe (Karlsruhe Administrative Court) decided that the Bundesverfassungsgericht (Federal Constitutional Court) did not infringe third-party rights by informing journalists of its decisions before they were officially published. The Bundesverfassungsgericht gives full members of the Juristenpressekonferenz (conference of legal journalists) access to important decisions the evening before they are officially published. The Juristenpressekonferenz is a private association which, according to its statutes, is made...
[DE] NLM complains about RTL and CHANNEL21 advertising infringements
In September 2022, the Niedersächsische Landesmedienanstalt (Lower Saxony media authority – NLM), implementing resolutions of the Kommission für Zulassung und Aufsicht (Commission on Licensing and Supervision – ZAK) of the state media authorities, filed complaints concerning a total of three advertising infringements by private television broadcasters: one concerned the RTL channel operated by RTL Television GmbH and two were directed against the teleshopping channel CHANNEL21. Firstly, the Hanover-based authority criticised a split-screen advertisement for a smartphone,...
[ES] Provisional measures on advertising during the broadcasting in Spain of the 2022 FIFA World Cup
Two weeks before the start of the 2022 FIFA World Cup in Qatar, the Spanish Comisión Nacional de los Mercados y la Competencia (National Markets and Competition Commission — CNMC) has adopted provisional measures on the contracting of advertising for the coverage of the tournament in Spain. Until the body adopts a final resolution, the provisional measures establish that the public service broadcaster RTVE will not be able to include advertising during World Cup broadcasts with advertisers other than FIFA’s sponsors. Regarding the broadcasting rights, RTVE reached an agreement...
Canal+ is not required to resume broadcasting TF1 channels via TNT Sat
On 5 September, Canal+, without giving any notice or warning, ceased broadcasting five channels operated by the TF1 group (TF1, TMC, TFX, TF1 Séries Films and LCI) via TNT Sat (a service that, in particular, enables households that cannot access DTT to receive television channels) following a commercial dispute over a new distribution contract between the parties. The TF1 channels filed a summons for urgent proceedings before the Paris commercial court in order to bring an end to the unlawful disturbance resulting from what they considered a sudden termination of the commercial relationship....
[FR] Broadcaster can force distributor to make viewers pay for its DTT channels
In a decision of 28 September, the commercial chamber of the Court of Cassation settled a dispute between Métropole télévision and the Molotov distribution platform. Métropole télévision, parent company of the M6 group, together with its subsidiaries EDI-TV and M6 génération, operate the television channels M6, W9 and 6TER, which they broadcast free-to-air and free of charge via digital terrestrial television (DTT) and the open Internet (OTT). They allow distributors to include their channels in their pay-TV packages, which are accessible...
[FR] CNC to assess impact of unlimited cinema pass extension
Following an opinion issued by the French competition authority, the right of cinema operators to sell unlimited passes was extended until 31 December 2023 under decree no. 2022-1296 of 6 October 2022, in accordance with Articles L. 212-27 et seq. of the Cinema and Animated Image Code. In order to offer customers an unlimited pass, cinema operators must first apply for a licence from the president of the Centre national du cinéma et de l'image animée (National Centre for Cinema and the Moving Image, CNC) in accordance with Articles L. 212-27 et seq. of the Cinema and Animated...
[FR] New ARCOM recommendation on commercial communications promoting gambling and games of chance
Commercial communications promoting authorised gambling operators are permitted under certain conditions and limitations set out in Article L. 320-12 of the Internal Security Code which, as well as prohibiting such communications in services or programmes aimed at minors, requires the French audiovisual regulator (ARCOM) to set out in a resolution the conditions under which they may be broadcast. Under ARCOM resolution no. 2022-57 of 19 October 2022, which revokes the resolution of 22 January 2013 on the conditions for the television and radio broadcasting of commercial communications promoting...
[GB] UK Coroner orders major online platform to provide to his court their proposals to provide suitable self-regulation to prevent future teenage deaths from suicide.
Whilst the UK Parliament’s Online Harms Bill 2022 awaits further passage through both the Houses of Common and Lords, the verdict in a recent Coroner’s Court decision has invited some of the leading online platforms to consider self-regulatory measures to protect children and vulnerable adults from harmful content. The Coroner’s hearing was heard in the Northern District of Greater London Coroner’s Court, before H. M. Coroner and senior coroner Mr Andrew Walker, concerning the suicide of 14 years old Molly Rose Russell who died on the 21 November 2017. Despite a...
[GB] DCMS report on influencer culture: no indication of a change of mood in the government response
On 23 September 2022, the House of Commons Digital, Culture, Media and Sport (DCMS) Committee, which is responsible for scrutinising the work of the Department for Digital, Culture, Media and Sport and its associated public bodies (including the BBC), published the government response to its report Influencer Culture: Lights, camera, inaction? (previously reported on IRIS 2022-7/18). The Committee had found low rates of compliance with advertising regulation and concluded that employment protection had failed to keep up with the growth of online influencer culture, leaving those working in...
[IT] The Administrative Court of Lazio annuls the sanctions inflicted against Amazon and Apple by the Italian Competition Authority
Through its judgment of 3 October 2022, the Regional Administrative Court of Lazio (Tribunale Amministrativo Regionale per il Lazio – TAR Lazio) annulled the two administrative pecuniary sanctions imposed by the Italian Competition Authority (Autorità Garante della Concorrenza e del Mercato – AGCM) against the Amazon and Apple Groups. Following a complaint received in February 2018, the AGCM opened an investigation against Apple and Amazon on 21 July 2020 concerning the commercial agreement attributing the sale of Apple and Beats products on Amazon marketplace exclusively...
[MD] New Copyright Act adopted
The new Law of the Republic of Moldova “On Copyright and Neighbouring Rights” was adopted by the Parliament on 28 July 2022 and entered into force on 9 October 2022. It replaces the earlier law of the same name adopted on 2 July 2010 (N. 139), which in turn replaced the law N 293-XIII of 23 November 1994. The 2022 law aims to transpose 12 EU directives in the field of copyright into national legislation (the Preamble) and generally improve the copyright protection system in the country. It is done through standardisation and harmonisation of legal notions in the sphere of intellectual...
[NL] Court refuses to grant injunction against broadcaster over insufficient opportunity to respond
On 10 October 2022, the District Court of Midden-Nederland (Rechtbank Midden-Nederland) published a significant judgment on the obligations of broadcasters to provide a right to respond. Notably, the Court refused to prohibit a broadcast over an alleged insufficient opportunity to respond, holding that “rebuttal is not an absolute right”, and the way in which a rebuttal is processed is part of “journalistic freedom”. The case concerned an episode of BOOS, an investigative journalism and consumer protection programme broadcast by the Dutch public broadcaster BNN-VARA....
[NL] Dutch Municipality’s suit against Twitter to remove conspiracy theory content
On 4 October 2022, the District Court of The Hague (Rechtbank Den Haag) delivered an important judgment on whether online platforms can be ordered to remove harmful conspiracy theory content by a local government authority. Notably, the Court refused to order Twitter to remove conspiracy theory content that was “similar” to other content that had been ruled unlawful, finding that it would amount to an impermissible filtering obligation. The case arose in early 2021, when a number of individuals spread a story through Twitter, on the “Bodegraven story”, (“het verhaal...
[RU] “Foreign agent media” list expanded
On 1 December 2022, a new version of the foreign agents’ law enters into force in the Russian Federation. It merges, updates and replaces the norms that have existed since 2012 in the Statute “On the Mass Media”, as well as in the federal statutes on non-commercial organisations and on public associations (see IRIS Extra 2020). The new law, “On Control over Activity of Persons under Foreign Influence”, foresees that foreign funding and/or material assistance are no longer obligatory factors in the designation of the status “foreign agent”: a vaguely-defined...