IRIS newsletter 2024-1
European Audiovisual Observatory
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Tel. : +33 (0) 3 90 21 60 00
Fax : +33 (0) 3 90 21 60 19
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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
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 and Amélie Lacourt • Linda Byrne • Glenn Ford • Aurélie Courtinat • Barbara Grokenberger
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 20234 European Audiovisual Observatory, Strasbourg (France)
The first editorial of the year is always a special one. It allows the editor to talk about what is expected to happen in the next twelve months or so. And in this new year of 2024, two words come furiously to mind: war and elections.
In addition to the ongoing war in Ukraine, 2023 saw the outbreak of a new cycle of death in Gaza. These ongoing conflicts have created many challenges in terms of hate speech and disinformation. For example, the European Commission recently opened formal proceedings against X for allegedly spreading illegal content and disinformation, in particular terrorist and violent content and hate speech related to Hamas' terrorist attacks against Israel. In parallel, member states have started to take action at national level. As part of a task force set up to focus on the application of the DSA, the German state media authorities reported over 160 violations by VLOPs related to the Middle East conflict to the European Commission.
This year will also see many elections that will determine the future of the world (US, Russia, European Parliament, etc.). Unfortunately, elections mean disinformation more than ever. It is a particularly sensitive issue that has been at the centre of discussions around the European table for some time, and in December the European institutions reached a preliminary political agreement on two important legal instruments, the EMFA and the AI Act, which could hopefully have a positive impact on the fight against disinformation.
And yet, in the midst of this uncertain (and frightening) geopolitical situation, it is heartening to see that the Council of Europe, the international organisation of which the European Audiovisual Observatory is proud to be part, is celebrating its 75th anniversary. 75 years of tireless defence throughout Europe of "the three fundamental, interdependent and inalienable principles of democracy, the rule of law and human rights" (as expressed in the CoE Reykjavík Declaration of May 2023). We can only add: many, many more happy returns!
And to you, dear reader, a Happy New Year 2024!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Bild GmbH & Co. KG v. Germany
A judgment of 31 October 2023 of the European Court of Human Rights (ECtHR) found a violation of Article 10 of the European Convention on Human Rights (ECHR) at the request of Bild GmbH & Co. KG (Bild), the owner and operator of a news website (bild.de) in Germany. The case concerns a court ruling ordering Bild to cease publication of the CCTV footage of a police arrest without the face of one of the police officers involved being blurred. The ECtHR was opposed in particular to the general reasoning in the court order that any unpixelated coverage of the police action would be unlawful....
European Court of Human Rights: Avramchuk v. Ukraine and Eastern Ukrainian Centre for Public Initiatives v. Ukraine
The European Court of Human Rights (ECtHR) has once again been requested to evaluate the justification by the Ukrainian authorities of their refusal to give access to administrative documents to journalists or other public watchdogs (see also IRIS 2020-4:1/7 and IRIS 2020-5:1/24). In two judgments of 5 October 2023, the ECtHR made clear that the protection of privacy or personal data cannot be an absolute exception to the right of access to public or administrative documents under Article 10 of the European Convention on Human Rights (ECHR). In both judgments the ECtHR found that the Ukrainian...
EU: European Commission
EMFA: Interinstitutional negotiations and adoption of a provisional agreement
The European Commission published its proposal for a regulation and recommendation for the safeguarding of media freedom, pluralism and independence: the European Media Freedom Act (EMFA) on 16 September 2022 (IRIS 2022-9:1/3). The EMFA addresses in particular: - the independence of public service media (including the appointment and dismissal of members) and stable sources of funding, - transparency of media ownership, - the protection of editorial independence, - spyware against journalists, - protection against unjustified online content removal, - safeguards to ensure...
EU: European Commission
EU Institutions reached agreement on AI Act
As mentioned in previous articles (IRIS 2021-6:1/25 and IRIS 2023-6:1/5), the European Commission (EC) presented, on 21 April 2021, a proposal for a regulation laying down harmonised rules on artificial intelligence and amending certain Union legislative acts (Artificial Intelligence Act – AI Act). In December 2022, the Council of the European Union established its general approach. Subsequently, the European Parliament (EP) adopted its position in June 2023, initiating trilogue discussions. On 9 December 2023, the EP and the Council of the EU reached a political agreement on the AI Act....
EU: European Commission
European Commission opens formal proceedings against X under the Digital Services Act
On 25 April 2023, the European Commission adopted its first designation decision under the Digital Services Act (DSA) based on the user data which platforms had to publish by 17 February 2023 (see: IRIS 2023-5:1/2). With 112 million monthly active users in the EU, X (formerly Twitter) was designated as a Very Large Online Platform (VLOP). The Commission may decide to open an investigation when it has suspicions of infringements by a VLOP or VLOSE (Very Large Online Search Engine) stemming either from its assessment of the information obtained during its monitoring, or from reliable sources....
EU: European Parliament
Audiovisual industry kept out of geo-blocking regulation
In a recent development highlighted previously (see 2023-7:1/5), the European Parliament’s committee on internal market and consumer protection (IMCO) initiated a report during the summer of 2023 on the practical application of the Geo-blocking Regulation. This procedure followed the Commission's report in November 2020 titled "First short-term review of the Geo-blocking Regulation" (COM(2020)0766). Mandated by Article 9 of the regulation, this report is slated for a five-year release, starting in 2020. Post this review, the European Commission engaged in a dialogue...
[BG] Bulgaria transposed Directive 2019/789 and Directive 2019/790
On 1 December 2023, the act amending and supplementing the Copyright and Neighbouring Rights Act – the Act (Закон за изменение и допълнение на Закона авторското право и сродните му права) was promulgated in the state gazette. The Act transposes the provisions of 1) Directive 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes; and 2) Directive 2019/790 on copyright and related rights in the Digital Single Market. To add some context,...
[DE] State media authorities report over 160 legal violations relating to the Middle East conflict to the European Commission
The terror recently waged by Hamas against Israel is currently being reflected in German media. Much of the content being distributed in relation to the Middle East conflict violates youth protection law and human dignity, especially when it promotes anti-Semitism or glorifies violence. In Germany, the 14 Landesmedienanstalten (state media authorities) are responsible under the Jugendmedienschutz-Staatsvertrag (State Treaty on the Protection of Minors in the Media – JMStV) for taking action against such content if it is being distributed via privately owned telemedia services. In recent...
[DE] ZAK bans broadcast of Auf1 content by “schwarz rot gold tv” due to unlawful thematic placement
The Kommission für Zulassung und Aufsicht (Commission on Licensing and Supervision – ZAK) of the Landesmedienanstalten (state media authorities) has ruled that schwarz rot gold tv GmbH breached the ban on thematic placement enshrined in the Medienstaatsvertrag (state media treaty - MStV). The infringement occurred when six hours of editorial content from Media in res Medien GmbH (Auf1) were broadcast each day on the schwarz rot gold tv (SRGT) channel in return for a fee. As a result, schwarz rot gold tv GmbH has been banned from distributing such content for payment. The ZAK is the...
[DE] BLM Media Council adopts AI guidelines
At its ninth meeting held on 19 October 2023, the Medienrat (Media Council) of the Bayerische Landeszentrale für neue Medien (Bavarian New Media Authority - BLM) adopted new guidelines on the use of artificial intelligence (AI) in journalism. Designed to protect the credibility of journalism and preserve democratic debate, the guidelines are merely an initial set of recommendations regarding the use of AI systems in journalism. In view of AI’s rapid development, however, they will need to be continuously updated. The authors accept that the use of AI in journalism has some benefits....
[DK] Extended collective licensing for text and data mining (AI)
On 1 June 2023 – about two years late – the Danish Parliament passed a bill to implement the Digital Single Market (DSM) Directive in full. This led to the introduction of such things as new rules on text and data mining in sections 11b and 11c of the Danish Copyright Act, equivalent to DSM Directive Articles 3 and 4 (where section 11c corresponds to Article 3 and section 11b to Article 4). There was no provision in the Danish rules, nor any indication in the legislative history, regarding extended collective licensing in connection with text and data mining, often referred to as...
[ES] TikTok collaborates with the Spanish Data Protection Agency to control the dissemination of harmful content of social vulnerable groups
The Spanish Data Protection Agency (AEPD) has incorporated TikTok into its Priority Channel, a communication channel established between the agency and Spanish citizens to report content (photographs or videos) published on social media that is of a sexual nature or that shows acts of aggression that put the rights and freedoms of the people affected at high risk. The legal basis for this channel is that one’s own image constitutes personal data and , under Spanish law, the AEPD has the power to adopt urgent measures to limit the publication of content that undermines the protection of personal...
[FR] CNews application to European Court of Human Rights against CSA formal notice ruled inadmissible
On 27 November 2019, the Conseil Supérieur de l'Audiovisuel (the French audiovisual regulatory body – CSA) issued a formal warning to the company that operates the CNews television channel following comments made by Eric Zemmour, a journalist and political commentator at the time, during the programme ‘Face à l'info’ in which he had been debating with a member of the French Senate on issues linked to immigration, the integration of persons of foreign origin, France’s peri-urban neighbourhoods and Muslims’ place in France. Citing Articles 6(1)...
[FR] Competition authority conditionally approves Canal Plus Group’s acquisition of OCS and Orange Studio
On 11 July 2023, the Canal Plus Group, which produces pay and free-to-air channels, distributes pay-per-view and subscription video-on-demand, aggregates and distributes pay TV and subscription video-on-demand services, and produces, acquires and distributes films and TV series, notified the Autorité de la concurrence (French competition authority) of its plan to acquire exclusive control of the companies OCS and Orange Studio. Prior to the proposed transaction, OCS was jointly controlled by Orange SA and the Canal Plus Group, operating pay TV channels and a subscription video-on-demand...
[FR] Contentious comments in a news and entertainment programme: honest presentation of controversial issues and respect for the presumption of innocence
The company C8 asked the Conseil d'Etat (Council of State) to annul decision no. 2022-704 of 16 November 2022 in which the Autorité de régulation de la communication audiovisuelle et numérique (French audiovisual regulator, ARCOM) issued a formal notice requiring it to comply with the provisions of Article 2-3-8 of its licence agreement of 29 May 2019 and Articles 1 and 3 of decision no. 2018-11 issued by ARCOM’s predecessor, the Conseil supérieur de l'audiovisuel (CSA), on 18 April 2018 concerning the honesty and independence of information and news programmes,...
[GB] GB News’ "Don’t Kill Cash" campaign breached Ofcom due impartiality rules
The GB News programme "The Live Desk" promoted the broadcaster’s campaign called "Don’t Kill Cash" to promote the use of cash. Ofcom considered that the campaign was addressing an issue of political controversy and related to current public policy. The GB News campaign breached Rule 5.4 of Ofcom’s Broadcasting Code which requires licensees to exclude all expressions of the views and opinions of the person providing the service. Further, GB News breached rule 5.5 requiring a broadcaster to preserve due impartiality on matters of political or industrial controversy...
[GB] Ofcom Study on Audience Attitudes Towards TV Content
Ofcom, the UK’s communications regulator, released a comprehensive study examining viewers’ attitudes to violent and sexual content on TV and their expectations about content they watch on linear and on-demand services. Conducted as part of Ofcom’s ongoing efforts to discern evolving viewer attitudes towards harm and offences, as well as preferences and tolerances among viewers, this latest study was designed to enhance the regulator’s understanding of viewers’ experiences with audiovisual content and the various factors that shape their standards of acceptability. 1....
[IT] AGCOM adopts new sanctioning measures against Google and Twitch
On 5 December 2023, the Italian Communications Authority (AGCOM), adopted three significant measures against major video-sharing platforms for violating the Italian prohibition on advertising games with cash prizes. Italian regulations prohibit any such form of direct or indirect advertising conducted on any transmission platform, including social media. In particular, with Resolution No. 317/23/CONS, Google Ireland Ltd. was fined EUR 2 250 000 (for the third time), and with Resolution No. 318/23/CONS, Twitch Interactive Germany GmbH was fined EUR 900 000 for violating the prohibition on gambling...
[IT] AGCOM adopts a regulation on video-sharing platforms
The Italian Communications Authority (AGCOM), with Resolution No. 298/23/CONS of 22 November 2023, has adopted, following the public consultation initiated with Resolution No. 76/23/CONS (see IRIS 2023-5:1/5), a regulation that establishes rules aimed at protecting minors and consumers from harmful content disseminated on digital video-sharing platforms (VSPs). The regulation, which will come into effect on 8 January 2024, defines the procedures through which AGCOM can restrict the circulation of content intended for the Italian public, issuing an order to to the hosting platforms requiring...
[NL] Secretary of State refuses to withdraw broadcaster Ongehoord Nederland’s recognition as a public broadcaster
On 27 November 2023, the Secretary of State for Culture and Media issued a high-profile provisional 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 NPO having imposed three separate fines on the broadcaster, including a EUR 131 000 fine in April 2023 for “systemic violation” of the NPO Journalistic Code in relation to the broadcaster’s news programme; a EUR 84 000 fine in July 2022 for an earlier...
[NL] Senate passes bill requiring major streaming platforms to invest in Dutch productions
On 31 October 2023, the senate (Eerste Kamer) approved an important bill amending the Media Act (Mediawet) 2008. The bill was introduced in July 2022 by the Secretary of State for Culture and Media (Staatssecretaris Cultuur en Media) (see IRIS 2022-8/16) and will now require major streaming platforms – with an annual Dutch turnover of more than EUR 10 million – to invest 5% of that turnover in Dutch audiovisual productions such as series, films and documentaries (see IRIS 2023-7/10). The primary objective is to encourage Dutch cultural offerings – sports are explicitly excluded...