IRIS newsletter 2023-7
European Audiovisual Observatory
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Executive Director: Susanne Nikoltchev
Maja Cappello, Editor • Francisco Javier Cabrera Blázquez, 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 • Erwin Rohwer • Sonja Schmidt • Ulrike Welsch
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Amélie Lacourt • Linda Byrne • Glenn Ford • Aurélie Courtinat • Barbara Grokenberger
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2023 European Audiovisual Observatory, Strasbourg (France)
In my first editorial of the year, I wrote that 2023 would most likely be the year of the EMFA and noted that the first critical reactions to this proposal had already appeared. Now that we have reached the middle of the year, and just as the Council of the European Union has reached an agreement on the EMFA proposal, some rather harsh criticisms have been published by influential members of the European audiovisual sector.
Given the concerns expressed, the ongoing trilogue discussions promise to be very interesting, as does the rest of the news that awaits you in this month's newsletter.
And since we have reached that time of the year, I can only wish you a relaxing summer break!
Enjoy the read!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
CoE: European Commission for Democracy through Law (Venice Commission)
Venice Commission: New acts on “de-oligarchisation” in Ukraine, Georgia and Moldova should not be enforced
Following the adoption, in 2021, by Ukraine of specific “de-oligarchisation” legislation, the commitment to eliminate the excessive influence of vested interests in economic, political and public life has also become an objective in Georgia and Moldova. Georgia has prepared a draft statute and Moldova both a draft statute and later an action plan, which alongside the relevant Ukrainian statute, underwent a review by the Venice Commission of the Council of Europe on 9-10 June 2023. As defined in the Ukrainian statute, which served as a model in the other two cases, an “oligarch”...
European Court of Human Rights: Mesić v. Croatia (no. 2)
The European Court of Human Rights (ECtHR) in a judgment of 30 May 2023 has dismissed a complaint introduced by the former president of Croatia, Mr Stjepan Mesić. Mesić’s complaint was about the dismissal by the domestic courts of his civil action for compensation because of alleged defamatory statements in an article published on an Internet news portal suggesting his involvement in criminal activities. In line with the domestic courts, the ECtHR found no violation of Mesić’s right to reputation under Article 8 of the European Convention on Human Rights (ECHR). The ECtHR considered...
EU: Council of the EU
EU sanctions five more Russian media outlets
On 25 February 2023, the Council of the European Union adopted its tenth package of sanctions against Russia, banning two channels broadcast in Arabic (see: IRIS 2023-3:1/2). Four months later, on 23 June 2023, five more media outlets were subject to an EU ban as part of the Council’s eleventh package of sanctions against Russia for its continued illegal war against Ukraine. The broadcasting licenses of RT Balkan, Oriental Review, Tsargrad, New Eastern Outlook and Katehon have been suspended and are now no longer authorised to broadcast in the EU. This decision was taken with the aim to...
EU: Council of the EU
Provisions from latest EMFA proposal are cause for concerns for audiovisual and cultural actors and journalists
On 9 June, a broad coalition of European and national organisations from the audiovisual and cultural sectors addressed the European Commission, the Council of the European Union and the European Parliament, voicing their concern about the content of the EMFA proposal by the Commission. Their concern stems from the current EMFA proposal’s Article 20 and its paragraph 1 in particular, which states that “Any legislative, regulatory or administrative measure taken by a Member State that is liable to affect the operation of media service providers in the internal market shall be duly...
EU: European Commission
EC study on how to make Creative Europe programme greener
At the European level, support for the culture and audiovisual sectors is provided through the Creative Europe programme set up by the European Commission. The programme is divided into two strands, CULTURE and MEDIA, and is supported by a third, CROSS-SECTORAL strand. Its aim is to invest in actions that reinforce cultural diversity and respond to the needs and challenges of both sectors by contributing to their recovery, reinforcing their efforts to become more inclusive, more digital and environmentally more sustainable. Environmental sustainability is a new priority, as the previous programme...
EU: European Commission
European Commission launches public consultation on DSA Transparency Database
On 21 June 2023, the European Commission (EC) launched a public consultation on the Digital Services Act (DSA) Transparency Database. This database, containing statements from online platforms regarding reasons for removal of information and other content moderation decision, is to be set up and maintained by the EC, pursuant to Article 24(5) of the DSA. As part of their new responsibilities to better inform users, platforms will be required to submit their statements without undue delay after each decision, in order to allow for “almost real-time updates”, according to the EC’s...
EU: European Parliament
Council and Parliament reach political agreement on Data Act
Over a year after the adoption of the proposed Regulation on harmonized rules on fair access to and use of data (Data Act) by the European Commission on 23 February 2022, the Council of the European Union and the European Parliament finalised negotiations and reached a political agreement on 28 June 2023. It is in light of the Internet of Things (IoT) and the expected increase of data that this Act was thought, seeking to boost the EU's data economy by unlocking industrial data, optimising its accessibility and use, and fostering a competitive and reliable European cloud market. The Data...
EU: European Parliament
Two European Parliament procedures over the summer
Two procedures opened between February and April 2023 are worth keeping an eye on as the discussions are relevant for the audiovisual sector. EU framework for the social and professional situation of artists and workers in the cultural and creative sectors - 2023/2051(INL): The European Parliament’s CULT and EMPL committees initiated a procedure to reflect on an EU framework for the social and professional situation of artists and workers in the cultural and creative sectors. The rapporteurs, Demec Ruiz Devesa (CULT) and Antonius Manders (EMPL) presented a draft report on 13 June. MEPs...
[DE] Administrative Court confirms state media authority ban on Cypriot pornographic websites
In a press release published on 26 April 2023, the Verwaltungsgericht Düsseldorf (Düsseldorf Administrative Court – VG) announced its decisions in the dispute over a ban imposed on three pornography platforms for breaches of rules on the protection of minors in the media. The VG ruled that the objection lodged and the subsequent ban imposed on the websites by the Landesanstalt für Medien Nordrhein-Westfalen (North-Rhine Westphalia media authority – LfM NRW), due to inadequate age verification mechanisms, were lawful. As a result, the decisions taken in the corresponding...
[DE] Federal Court of Justice rules on de-referencing of search listings and thumbnails by Google
In a ruling of 23 May 2023 (case no. VI ZR 476/18), the Bundesgerichtshof (Federal Court of Justice – BGH) decided that anyone who asks a search engine provider to de-reference the results of a general Internet search must prove that the information it contains is clearly inaccurate. However, such an obligation does not apply when images are displayed by a search engine’s image search tool (in this case, the “Images” tab of the Google search engine) merely in the form of a thumbnail of the original image published on a different website, to which the search engine provides...
[DE] KJM and KEK reports published
In May 2023, two German media regulators published reports examining past and ongoing challenges in the fields of youth protection and the safeguarding of diversity in the media. On 12 May, the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM) published its 10th activity report covering the period from March 2021 to February 2023. Meanwhile, the Kommission zur Ermittlung der Konzentration im Medienbereich (Commission on Concentration in the Media – KEK) published its 24th annual report, covering 2022, on 15 May. According to the KJM’s...
[ES] The Spanish video games industry experiences a 12% annual growth and reaffirms its strategic position
The Spanish Video Game Association (Asociación española de videojuegos – AEVI) has launched its new yearbook ‘The video game industry in Spain in 2022’, which shows that the video game industry occupies a strategic place within the Spanish cultural and creative industries. After the previous growth experienced during the Covid-19 pandemic, during 2022 the video games industry in Spain grew by 12% compared to the previous year. Both the reform of the Legal Deposit Law (Law 8/2022) and the implementation of the Spain Audiovisual Hub Plan are highlighted as...
[FR] ARCOM fines C8 EUR 300 000 for another TPMP breach
On 31 May, the Autorité de régulation de la communication audiovisuelle et numérique (French audiovisual regulator – ARCOM) fined the C8 company EUR 300 000 for comments made during an episode of the programme ‘Touche pas à mon poste’, presented by Cyril Hanouna, on 5 October 2022. Following a reference to the decision taken by several French municipal authorities not to install giant screens for the transmission of matches at the World Cup in Qatar or open fan zones, the mayor of Paris, who did not participate in the programme, was called various...
[FR] ARCOM publishes assessment of protection measures taken by online content-sharing platforms
As part of its remit to protect cultural works, the Autorité de régulation de la communication audiovisuelle et numérique (Regulatory Authority for Audiovisual and Digital Communication – ARCOM) published, after stakeholder consultation, its first report on the content recognition tools used by social networks and content-sharing platforms (pursuant to Article 17 of the EU Copyright Directive and the liability exemption mechanism for service providers, transposed through Articles L. 137-1 et seq. of the French Intellectual Property Code). Under the law of 25 October...
[FR] Senate adopts public audiovisual reform and audiovisual sovereignty bill at first reading
On 13 June 2023, despite opposition from the government, the French Senate adopted the bill tabled by Laurent Lafon, centrist senator and chair of the Culture, Education and Communication Committee, and several of his colleagues concerning the public audiovisual reform and audiovisual sovereignty. According to the Minister for Culture, “a big institutional shake-up is neither necessary nor a priority.” The bill’s authors believe that “an ambitious global strategy is vital to preserve our country’s audiovisual sovereignty.” To this end, the bill is based on...
[FR] Senate’s film industry information task force issues 14 proposals, including support for national online distributors
A report drawn up by the film industry information task force, created by the French Senate’s Cultural Affairs Committee to assess the current situation and, more importantly, map out future prospects for the film industry, was adopted on 24 May 2023. In its report, the task force notes that the standard of French film-making must be maintained at a high level, in particular in a world in which distribution technologies and channels are evolving at lightning speed. In order to enable the film industry and cinemas to adapt and continue to play their dual role of promoting and showcasing...
[GB] Ofcom's enforcement programme into age assurance measures on UK-established adult VSPs - findings after six months of activity
On 10 January 2023, Ofcom launched its enforcement programme into age assurance measures on UK-established adult video-sharing platforms (VSP) – the goal of which is to look at age assurance measures in place on VSPs specialising in adult content under Ofcom’s jurisdiction. Ofcom may launch so-called enforcement programmes to look at a problem or area of concern relating to a particular group of stakeholders – in this case VSPs – or to a whole sector. The launch of the programme coincided with Ofcom entering the second year of the VSP regime, following the October 2022...
[IE] Media Regulator publishes work programme
On 20 June 2023, the Irish national regulatory authority - Coimisiún na Meán – published its first work programme. The Commission was established in March 2023, succeeding to the Broadcasting Authority of Ireland (BAI), which was dissolved under the provisions of the Online Safety and Media Regulation Act 2022. The work programme runs until February 2024 and includes the following main objectives: - Implementing new regulatory regimes for how online service providers deal with harmful and illegal content - Regulating broadcasting and on-demand services - Supporting...
[IT] User uploading content to online sharing platforms and copyright infringement: AGCOM adopts new measures relating to claims and disputes
The Italian Communications Authority (AGCOM), following a public consultation (see IRIS 2022-9:1/12), unanimously adopted on 18 May 2023 Resolution no. 115/23/CONS implementing article 102-decies of the Italian law on copyright (law n. 633/1941). This is the second measure adopted by AGCOM in implementation of EU Directive/2019/790 (Copyright Directive), following the approval of the Regulation on fair compensation referred to in Resolution no. 3/23/CONS (see IRIS 2023-4:1/4). The Guidelines contained in Annex A of the second Resolution identify both general principles and criteria with which...
[LU] Collaboration between National Regulatory Authorities: the case of Luxembourg and Serbia
On 15 May 2023, the board of ALIA (the Luxembourg Independent Authority for Audiovisual Media) issued a decision concerning the programme "Ficus for the Boss" broadcast on 19 January 2022 on the N1 television channel as part of a current affairs programme, after the REM (the Serbian Regulatory Authority) had forwarded a complaint reporting hateful content against Ana Brnabić (prime minister and member of the Serbian Progressive Party). According to the REM, the content of the programme stigmatised the prime minister by making an inappropriate comparison between her and people who collaborated...
[MD] New access to information statute adopted at first reading
On 11 May 2023 the Parliament of the Republic of Moldova adopted at first reading the Statute “On access to information of public interest”, submitted by the government. Adoption of the statute was recommended by the Council of Europe Action Plan for the Republic of Moldova (2021-2024) and is part of the country’s commitments as a candidate to the EU. The explanatory note to the statute also speaks of Moldova’s obligations as a party to the Convention on Access to Official Documents (Tromsø Convention) of the Council of Europe. The new law has 33 articles. Article...
[MD] Draft statute on the National Centre for Informational Defence and Combating Propaganda
In May 2023, President Maia Sandu announced a legislative initiative to establish an institution that would combat propaganda harmful to the Republic of Moldova and defend its citizens from manipulation and propaganda attacks. She had the text of the draft statute published on the presidential website for a 10-day public consultation period and intends to propose it to the parliament by the end of July. The draft statute on the National Centre for Informational Defence and Combating Propaganda, that will be known as “Patriot”, would have the mission to coordinate and implement state...
[NL] New decree on untargeted gambling advertising
On 1 July 2023, a new ban on “untargeted” online gambling advertising will come into effect, under the Decree on untargeted advertising of online games of chance. Notably, the new Decree bans online gambling advertising via broadcasting services under the Mediawet (Media Act) , in newspapers, magazines or other printed, publicly available means of communication, and in public spaces. Importantly, however, online gambling licence holders will still be permitted to engage in “targeted” advertising via the Internet or via on-demand media services under the Media Act, where...
[NL] House of Representative passes Bill requiring major streaming platforms to invest in Dutch productions
On 6 June 2023, the House of Representatives (Tweede Kamer) passed a Bill, which will amend the Media Act (Mediawet) 2008, and require major streaming platforms with an annual turnover in the Netherlands of more than EUR 10 million to invest 5% of that turnover in Dutch productions. The State Secretary for Culture and Media (Staatssecretaris Cultuur en Media) introduced the Bill in July 2022, and originally required major streaming platformswith an annual turnover in the Netherlands of more than EUR 30 million to invest 4.5% of their turnover in Dutch productions (see IRIS 2022-8/16). The Bill...
[NL] Supervisory investigation of video-uploader compliance with AVMSD rules
On 9 May 2023, the Commissariaat voor de Media (Dutch Media Authority ) - CvdM) announced the results of a notable supervisory investigation into video-uploader compliance in the Netherlands, with rules under the Mediawet (Media Act) transposing the revised EU Audiovisual Media Services Directive (AVMSD) (see IRIS 2019-1/3 and IRIS 2021-1/24). This follows a high-profile announcement in May 2022 that the CvdM would be monitoring video-uploaders under its new Policy Rule for the qualification of commercial on-demand services in 2022, which clarified which video-uploaders must register with the Media...
[PL] The right to "revoke” a licence or transfer of rights in the context of draft amendments to the Copyright and Related Rights Act
Poland's 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 European Union L 130 of 17 May 2019, p. 92) (the so-called "Digital Single Market" Directive), hereinafter referred to as the "DSM Directive", made it necessary to amend the Copyright and Related Rights Act. The proposed draft act introduces a significant change with regard to the author's rights in the event that the...
[RU] Resolution of the Constitutional Court on the ban on “discrediting the Army”
On 30 May 2023, the Constitutional Court of the Russian Federation adopted thirteen resolutions to formally reject the admissibility of complaints on the unconstitutionality of Article 20.3.3 of the national Code on Administrative Offences from different complainants. The resolutions, published on 20 June 2023, are largely identical in their content and arguments. The article itself was introduced on 4 April 2022 to provide penalties for “public actions aimed at discrediting the use of the Armed Forces of the Russian Federation for the purpose of protecting the interests of the Russian...