IRIS newsletter 2022-6
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)
There are court decisions and court decisions. Most of them simply have an impact on a concrete case. Others, however, have a much wider impact and create what lawyers call “jurisprudence”. The Grand Chamber of the CJEU’s much-anticipated judgment on Article 17 of the DSM Directive is certainly the latter, and should inform the transposition procedure in the EU member states in a fundamental way. In a nutshell, the CJEU ruled that the safeguards contained in Article 17 DSM ensure respect for the right to freedom of expression of users, adding that Member States must transpose this article into their national law striking a fair balance between the various fundamental rights protected by the Charter.
Talking about freedom of expression, the Council of Europe has been very active in this regard recently. First of all, by publishing recommendations on principles for media and communication governance and the impacts of digital technologies on freedom of expression. These recommendations, along with a further recommendation on electoral communication, are designed to encourage the member states to introduce future-oriented governance systems that guarantee to protect freedom of expression and freedom of the media, while also respecting communication rights and the fundamental values of the Council of Europe.
And talking about values, the EU’s new strategy for a better internet for kids (BIK+), adopted on 11 May 2022, should ensure that children are protected, respected and empowered online.
This and many other interesting news items await you inside this month’s newsletter.
More than ever, stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
CoE: Committee of Ministers
Council of Europe publishes recommendation on electoral communication
On 6 April 2022, the Committee of Ministers of the Council of Europe adopted a recommendation to member states on electoral communication and media coverage of election campaigns. The recommendation not only lays down principles for electoral advertising, in particular online, but also updates a previous recommendation on the role of the media in election campaigns. The Council of Europe highlights, in particular, the importance of transparency in the use of communication in the run-up to elections, including regard to whether information has been paid for, and the sources and the extent of funding...
CoE: Committee of Ministers
Council of Europe publishes recommendations on principles for media and communication governance and the impacts of digital technologies on freedom of expression
On 6 April 2022, the Committee of Ministers of the Council of Europe adopted recommendations to member states on principles for media and communication governance and on the impacts of digital technologies on freedom of expression. These recommendations, along with a further recommendation on electoral communication, are designed to encourage the member states to introduce future-oriented governance systems that guarantee to protect freedom of expression and freedom of the media, while also respecting communication rights and the fundamental values of the Council of Europe. Both recommendations...
European Court of Human Rights (Grand Chamber): NIT S.R.L. v. the Republic of Moldova
The Grand Chamber of the European Court of Human Rights (ECtHR) has found no violation of the right to freedom of expression and information in a case concerning the withdrawal of a television station’s licence in Moldova. The licence of the television channel NIT was revoked in 2012 because of the failure to provide balanced political coverage, and in particular, for its biased support of the communist opposition party in Moldova (PCRM) and its harsh criticism of (members of) the Government and its supporting coalition, the Alliance for European Integration (AEI). The ECtHR was satisfied...
EU: Court of Justice of the European Union
Grand Chamber judgment on Article 17 of the DSM Directive
On 26 April 2022, the Court of Justice of the European Union (CJEU) delivered its much-anticipated judgment in Case C‑401/19, concerning Article 17 of the 2019 Directive on Copyright and related rights in the Digital Single Market (DSM Directive) (see IRIS 2019-4/5). The case originated in May 2019, a month after the DSM Directive was adopted, when Poland made an application to the CJEU, seeking annulment of two provisions under Article 17 DSM Directive concerning the liability of online content-sharing service providers (OCSSPs) for content uploaded by users (see IRIS 2019-9/5). In particular,...
EU: European Commission
New strategy for a better internet for kids
On 11 May 2022, the European Commission published a new strategy for a better internet for kids. Announced in March 2021 as part of the European Union strategy on the rights of the child, the strategy falls under one of the priorities of Ursula von der Leyen’s presidency of the Commission (2019-2024), entitled “A new push for European democracy”. Although it is not legislative in nature, the Commission’s communication is no less important, since it lists the different ways in which the Commission intends to better protect children and young people online by empowering them...
[AZ] New media law regulates audiovisual sector
On 8 February 2022, President Ilham Aliyev enacted the statute “On Media,” which replaces both the 1999 statute “On the Mass Media” (see IRIS 2000-2/25 and IRIS 2021-3/10) and the 2002 Statute "On Television and Radio Broadcasting" (see IRIS 2003-3/15). The statute was adopted by the Milli Majlis (national Parliament) on 30 December 2021. This statute consists of 78 articles and determines the organisational, legal and economic bases of activity in the field of media, as well as general information on obtaining, preparation, transmission, production and dissemination...
[CH] Swiss public vote to amend Federal Film Act
With a 58.42% majority and a turnout of just over 40%, the Swiss electorate voted to amend the Bundesgesetz über Filmproduktion und Filmkultur (Federal Act on Film Production and Culture – FiG) in a referendum held on 15 May 2022. The amendment had previously been agreed by the Swiss legislative bodies, the Nationalrat (National Council) and the Ständerat (Council of States), in October 2021. The referendum had been instigated by opponents of the amendment, but their initiative failed when the majority of voters rejected their proposal that the amendment of the Act should be cancelled. Under...
[DE] Constitutional complaint about data reconciliation for licence fee collection unsuccessful
In a ruling of 21 January 2022, the German Bundesverfassungsgericht (Federal Constitutional Court –BVerfG) rejected two constitutional complaints concerning the automatic, regular transfer of personal data from the German registration authorities to the Landesrundfunkanstalten (state broadcasting authorities) for the purpose of collecting the broadcasting licence fee. The complainants had claimed, inter alia, that their right to informational self-determination had been breached, but the BVerfG rejected the complaints on admissibility grounds. The constitutional complaints had been lodged...
[DE] Discussion draft on the amendment of state youth protection treaty published
On 15 March 2022, the Rundfunkkommission (Broadcasting Commission) of the German Bundesländer, which acts as a joint discussion forum and decision-making body on media policy and related legal questions for the Heads of the State and Senate Chancelleries, adopted proposals to reform the Jugendmedienschutz-Staatsvertrag (Interstate Treaty on the Protection of Minors in the Media – JMStV). The proposals were published in the form of a discussion draft and a consultation procedure was opened. The reforms, which focus in particular on the improvement of technical measures to protect young...
[DE] Federal government evaluates the coronavirus pandemic’s impact on culture and media
Responding to a question submitted by the CDU/CSU parliamentary group, the German Bundesregierung (federal government) gave its views on the consequences of the coronavirus pandemic in the cultural and media sector, along with a provisional evaluation of the various coronavirus grant programmes. The question was based on the fact that the cultural, creative and events industry had been hit particularly hard by the consequences of the coronavirus pandemic because it had been placed under heavy restrictions from the outset and had drawn little benefit from temporary relaxations of the rules....
[DK] High Court judgment on the scheme on compensation for private copying: Finding the Danish state liable for loss due to too slow update of the rules to meet EU requirements
On 19 May 2022, the Danish Eastern High Court delivered a much awaited judgment in a dispute between the Danish organisation that administers the funds allocated to compensation for private copying, Copydan KulturPlus, and the Danish Ministry of Culture. The Danish levy scheme on compensation for private copying previously comprised DVDs, USBs and storage media that was detachable from devices with a digital reproduction function, but not built-in storage media such as internal memories of smartphones, tablets and computers. In a preliminary ruling in a national case between Copydan and...
[ES] Transposition of AVMSD one step closer
In May 2022, almost four years after the European Parliament updated Directive 2018/18018 (AVMSD), the Spanish Congress has approved the new law transposing the AVMSD. This was not without controversy, with 130 votes in favour, 83 votes against and 131 abstentions. The law will now be sent to the Senate to complete its parliamentary processing. This new Ley General de Comunicación Audiovisual (General Law on Audiovisual Communication) updates the existing framework to foster the development of the audiovisual market, establishing the same rules for different actors that compete for the...
[FR] ARCOM orders two more pornographic websites to block access to minors
In accordance with Article 23 of the Law of 30 July 2020 to protect the victims of domestic violence, “if a provider of an online public communication service is found to be allowing minors to access pornographic content in violation of Article 227-24 of the Penal Code, the ARCOM (the French broadcasting regulator) president will send it – in a manner in which the date of receipt can be proven – a formal notice ordering it to take all possible steps to prevent minors accessing the content concerned. The recipient of the injunction then has 15 days in which to present its observations....
[FR] Publication of decree on commercial exploitation of the image of children on the Internet
Under Law no. 2020-1266 of 19 October 2020 regulating the commercial exploitation of children under 16 on Internet platforms, which entered into force on 20 April 2021, so-called “child YouTubers” now enjoy the same protection as children in the modelling and entertainment industries, as described in Articles L. 7124-1 et seq. of the Employment Code, as well as specific rights such as the “right to be forgotten”. Before their children are filmed or their videos are disseminated, parents must request an individual licence or approval from the authorities. Their child’s...
[FR] RMC Découverte fails to meet obligation to broadcast 75% documentaries: Conseil d’État confirms CSA sanction
The TV company RMC Découverte signed an agreement with the Conseil supérieur de l’audiovisuel (the French audiovisual regulator – CSA) in 2012, Article 3-1-1 of which requires it to ensure that “documentaries make up at least 75% of total airtime each year and cover a wide variety of topics.” On several occasions in 2016 and 2017, the CSA found that the channel was not abiding by those provisions and issued a formal notice requiring it to meet its obligations. On 9 December 2020, the CSA fined RMC Découverte EUR 80,000 because documentaries had only...
[GB] The Department for Digital, Cultural and Media & Sport publishes report on their vision of the UK broadcasting sector
The UK government has launched its policy paper (report) reviewing the future role and relevance of public sector broadcasting (PSB) and proposals ensuring greater regulatory uniformity between video on demand services and terrestrial television services. According to the report, terrestrial services remain part of the broadcast ecosystem and 89% of the British public listen to the radio weekly. Current statistics show that nearly half of UK adults used online video services as their primary source for viewing TV and film. 17.3 million homes accessed digital terrestrial TV via...
[GB] The BBC is prevented from identifying alleged MI5 informant accused of abusing former female partners
On 7 April 2022, the High Court of Justice granted an interim injunction restraining the British Broadcasting Corporation (‘BBC’) from broadcasting a programme identifying ‘X’, an alleged MI5 covert human intelligence source (‘CHIS’). The BBC programme in question included the allegations that X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; that X had told one of these women that he worked for MI5 to terrorise and control her; and that MI5 should have known about X’s conduct and realised...
[IT] The burden of proof in press defamation lawsuits: according to the Italian Court of Cassation, journalists shall prove (at least) the trustworthiness of the facts narrated
On 26th April 2022, with decision No. 12985, the Italian Court of Cassation re-affirmed a very important principle regarding the burden of proof in press defamation claims for damage compensation. Specifically, in the case at hand, that was brought against the editor-in-chief of a newspaper, the plaintiff asked for compensation for damages he allegedly suffered because of a defamatory news article published in the newspaper managed by the defendant. The Court of Appeal rejected plaintiff’s demands as he did not prove that the facts reported in the news article were untrue. However,...
[LU] Luxembourg regulator rules on Nazi symbols in TV advertising
On 14 March 2022, the Autorité luxembourgeoise indépendante de l’audiovisuel (Independent Audiovisual Authority of Luxembourg – ALIA) ruled on a complaint filed on 21 January 2021 against the Serbian version of the SportKlub 1 TV channel and issued a EUR 1 500 fine to the owner of the channel’s broadcasting licence. The case concerned the broadcast of an advertising spot for an online sports betting service in which an actor wearing an SS uniform and speaking with a German accent encouraged viewers to bet on the German football Bundesliga. Although the advertisers...
[NL] Judgment on responsibilities of YouTube channel
On 16 March 2022, the Amsterdam Court (Rechtbank Amsterdam) delivered a notable judgment regarding a copyright infringement and an unlawful allegation in an episode published on a popular YouTube channel. The channel is described as a ‘juice channel’, where the creators usually discuss the latest gossip and news concerning famous Dutch people. The Court ruled that uploading the video, which contained an unreleased song as well as the discussion surrounding it regarding allegations of sexual misconduct, without the consent of the claimant, was considered unlawful, and the channel had...
[NL] Social media influencer entitled to protection of journalistic sources
On 29 April 2022, the District Court of Amsterdam (Rechtbank Amsterdam) delivered an important judgment on whether a social media influencer is entitled to invoke the right to protection of journalistic sources. Notably, the Court held that the activities of a Dutch social media influencer, with over 400 000 followers on Instagram and YouTube, fell within the concept of “journalism”, and the influencer was entitled not to reveal her sources in legal proceedings over an online video. The case centred on the well-known Dutch influencer Yvonne Coldeweijer (the defendant), who operates...
[NO] Norwegian operators instructed to block betting advertisements on Discovery channels targeting Norway
In two decisions of 30 March 2022, the Norwegian Media Authority (NMA) instructed Norwegian operators of networks transmitting television in the Norwegian market, to block or hinder access to advertisements for certain betting websites from two Maltese betting companies, BLM Group Ltd and Trannel International Ltd. The order to block betting advertisements included the German Discovery channels FEM, MAX and VOX, and Eurosport Norge which is offered by the French company Eurosport S.A.S. The operators included in the decisions are the five largest operators of networks providing linear television...
[PT] Video-sharing platforms are not subject to state media regulation
On 6 April 2022, the Entidade Reguladora para a Comunicação Social (Portuguese Regulatory Authority for the Media — ERC), issued a decision stating that although on-demand audiovisual operators and services, and video-sharing platforms were both subject to registration with the ERC, only the first were subject to its general regulation and intervention, and to the Transparency Law, as a result of their editorial responsibility. When the Audiovisual Media Services Directive (Directive 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive...