IRIS newsletter 2023-3
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 • Brigitte Auel • Erwin Rohwer • Ulrike Welsch
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Amélie Lacourt• Aurélie Courtinat • Barbara Grokenberger • Glenn Ford • Claire Windsor
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2023 European Audiovisual Observatory, Strasbourg (France)
According to Greek philosopher Heraclitus, the only constant in life is change. And, in the words of Charles Dickens, change begets change.
In the audiovisual sector, technological and market developments are a constant that usually beget regulatory intervention, as this newsletter amply shows. Just to mention three examples: The European Commission has presented a set of initiatives aimed at making Gigabit connectivity available to all citizens and businesses across the European Union by 2030. In Switzerland, the Swiss Media Commission is calling for the restructuring of media support in Switzerland in view of the radical changes to media production, distribution and usage in the digital era. In Germany, the Broadcasting Commission has adopted a decision on public broadcasting reforms in Germany, in which it laid down some key elements of the necessary overhaul of rules governing German public broadcasters.
Beyond the introduction of new rules, necessary change is effected by putting those rules into practice, like in Italy, where the board of the Italian Communications Authority has agreed for the first time to fine a social media platform. Taking up new responsibilities is also part of change, like in the UK, where Ofcom has published a call for evidence regarding the protection of children which will help in the preparation of codes of practice and guidance as part of Ofcom’s future role as online safety regulator.
Change is certainly an important part of life. There is something, however, that remains unchanged, and that is our commitment to bring you these, and many other interesting news items in our monthly newsletter.
Have a nice read!
Maja Cappello, Editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights rules on C8 (Canal 8) v. France
The European Court of Human Rights has recently dealt with two applications concerning two sanctions imposed against the television channel C8 by the Conseil supérieur de l’audiovisuel (French audiovisual regulator — CSA) and confirmed by the Conseil d’État, following content broadcast in the programme “Touche pas à mon poste”. In the first of the disputed clips, broadcast on 7 December 2016, the programme’s host had been shown playing a game with one of its female pundits in which, with her eyes closed, her hand had been placed on part of...
European Court of Human Rights (Grand Chamber): Macatė v. Lithuania
The Grand Chamber of the European Court of Human Rights (ECtHR) has delivered a judgment concerning restrictions on literature about same-sex relationships written specifically for children. The ECtHR found that measures taken against a children’s book of fairy tales had intended to limit children’s access to information depicting same-sex relationships as essentially equivalent to different-sex relationships. According to the ECtHR, the fairy tales had not contained sexually explicit content, nor had they promoted same-sex families over others. On the contrary, the fairy tales...
European Court of Human Rights: OOO Mediafokus v. Russia
In a judgment of 17 January 2023, the European Court of Human Rights (ECtHR) found that the wholesale blocking of access to a new website of an online media company on the grounds that its content “mirrored” the proscribed content on its former website amounted to a violation of the right to freedom of expression and information as guaranteed under Article 10 of the European Convention on Human Rights (ECHR). Although judgments of the ECtHR have minimal impact on the practices of the Russian authorities, the judgment in OOO Mediafokus is also relevant for other member states of...
EU: Council of the EU
EU bans Russian Arabic services
On 25 February 2023, the Council of the European Union adopted its tenth package of sanctions against Russia since the beginning of the war against Ukraine. This package contains a number of additional measures and sanctions, including: - the addition of 87 individuals and 34 entities to the sanction list, who, in support of the war, spread propaganda, deliver drones used by Russia in the war or publish disinformation, - tighter EU export bans and restrictions on sensitive dual-use and advanced technologies that contribute to Russia's military capabilities and technological...
EU: European Commission
European Commission provides non-binding guidance within the scope of the Digital Services Act for online platforms on publication of user numbers in the European Union
On 1 February 2023, the European Commission (EC) published non-binding guidance on the requirements to publish user numbers in accordance with the Digital Services Act (DSA) provisions: “Questions and Answers on identification and counting of active recipients of the service under the Digital Services Act” (DSA). The DSA is of importance for the audiovisual industry since it will catch some of the video-sharing platforms present in the European territory, either as online platforms or as "very large online platforms" (VLOPs) (the latter categorisation...
EU: European Commission
European Commission Proposals on Gigabit connectivity
In line with the Digital Decade Policy programme, the European Commission presented, on 23 February 2023, a set of initiatives aimed at making Gigabit connectivity available to all citizens and businesses across the European Union by 2030. Among the initiatives, a proposal for a “Gigabit Infrastructure Act”, which would replace the Broadband Cost Reduction Directive, from 2014. The proposal addresses the costs and administrative burdens associated with the deployment of Gigabit networks and looks specifically at: - procedures for obtaining access to existing physical infrastructures; -...
[BE] VRM issues first warnings to influencers for violating rules on commercial communication
On 22 November 2022, the Vlaamse Regulator voor de Media (Flemish Media Regulator — VRM) issued, for the first time, warnings to influencers for violating the rules on commercial communication under the Flemish Media Decree (Article 53). With the transposition, in 2021, of the revised Audiovisual Media Services Directive into the Flemish Media Decree, channels and profiles on platform services such as YouTube, Instagram and Tiktok can be considered audiovisual media services or broadcasting services (as per Article 2, 26° of the Flemish Media Decree). This means that content creators,...
[BG] Bulgarian Supreme Court to provide clarity on compensation for copyright infringements
By resolution dated 15 December 2022, the Върховният касационен съд (Bulgarian Supreme Court of Cassation — SCC) opened interpretative case No. 3/2022 concerning the interpretation of certain questions regarding compensation for copyright infringements which cause confusion and disagreement between the lower courts and practitioners. The case was opened upon a request of the Висшия адвокатски съвет (Bulgarian Supreme Bar Council) and will be decided by the General Assembly of the Civil and Commercial Chambers of the SCC. In short, the questions raised are: 1. which market should be...
[BY]: Waiver on copyrighted objects from “unfriendly countries”
On 17 January 2023, the Statute of the Republic of Belarus that introduces the bypassing of possible economic measures of foreign states as to the use of copyrighted objects in Belarus entered into force. The statute refers to certain categories of copyrighted published objects whose use in Belarus is forbidden by the rightsholders and/or collective societies from foreign countries. These foreign countries are enumerated for their “unfriendly actions” in relation to Belarusian individuals and/or legal entities in the Regulation of the Council of Ministers of Belarus from April 2022....
[CH] Swiss Media Commission favours structural change for media support
In a position paper published on 10 January 2023 with the title “Zukunft der Schweizer Medienförderung - Impulse für eine technologieneutrale Unterstützung privater journalistischer Angebote” (The future of Swiss media support – impulses for technology-neutral support of private journalistic offerings), the Eidgenössische Medienkommission (Swiss Media Commission – EMEK) called for the restructuring of media support in Switzerland. In view of the radical changes to media production, distribution and usage in the digital era, media support could no longer...
[DE] Broadcasters allowed to delete social media comments
In a ruling of 30 November 2022, the Bundesverwaltungsgericht (Federal Administrative Court –BVerwG) decided that public broadcasters were entitled to delete comments posted by users in their online forums if the comments were unrelated to their programmes. This applied whether the content was unlawful or not. The court based its decision on the definition of public broadcasters’ telemedia-related remit set out in German media law. The case concerned users’ comments on programme-related content posted on the Facebook page of Mitteldeutsche Rundfunk (MDR), which the broadcaster...
[DE] Broadcasting Commission decision on public service broadcasting reforms
On 20 January 2023, the Rundfunkkommission (Broadcasting Commission) adopted a decision on public broadcasting reforms in Germany, in which it laid down some key elements of the necessary overhaul of rules governing German public broadcasters. The Broadcasting Commission comprises representatives of the State and Senate Chancelleries of the Länder, which are responsible for media policy and legislation, acts as a permanent forum for the discussion of issues relating to media policy and lays the ground for future regulation in the form of state treaties. It decided to focus on three main aspects...
[DE] No additional fee for broadcasting licence renewal
In a decision of 28 December 2022, the Verwaltungsgericht Berlin (Berlin Administrative Court – VG Berlin) upheld a complaint filed by a national broadcaster against the imposition of an administration fee for the renewal of its broadcasting licence by the relevant state media authority. The court did not believe the fee was justified insofar as it covered not only the administrative costs incurred but also an additional sum charged because the broadcaster had gained an advantage as a result of the administrative work carried out. The plaintiff has held a broadcasting licence, which is...
[ES] Spanish government moves forward in approving measures to improve the labour conditions of artists
The Spanish government's efforts on labour protection for artist workers continue to bear fruit. Since the creation of the Interministerial Commission for the development of the Artist's Charter in July 2021, the industry agrees that progress has been made. The Commission, chaired by the Minister of Culture and Sports of Spain, aims to provide workers in the cultural and creative industries with a legal framework that better suits the particularities of their labour conditions. Specifically, in terms of taxation, labour protection, social security and retirement benefits. The approval...
[FR] ARCOM fines C8 for failing to control programme content and violating human rights
On 9 February 2023, ARCOM (the French audiovisual and digital communications regulator) fined television channel C8 EUR 3.5 Million following remarks made during its programme “Touche pas à mon poste” broadcast on 10 November 2022. French MP Louis Boyard (of the ‘La France Insoumise’ political party), a former pundit on the programme, had been invited to talk about the reception of migrants on board a humanitarian ship. When he began discussing the unequal distribution of wealth and the activities in Africa of Vincent Bolloré, shareholder of the Canal+ group,...
[FR] C8 warned after televised altercation between Cyril Hanouna and MP Louis Boyard
ARCOM (the French audiovisual and digital communications regulator) has issued a formal notice to the television channel C8, urging it to guarantee the independence of information following comments made during the programme “Touche pas à mon poste” broadcast on 10 November 2022. French MP Louis Boyard (of the ‘La France Insoumise’ political party), a former pundit on the programme, had been invited to talk about the reception of migrants on board a humanitarian ship. When the MP began discussing the unequal distribution of wealth and, in the same context, the activities...
[GB] Ofcom launches media literacy evaluation tookit
On 7 February 2023, Ofcom released an evaluation toolkit for media literacy intervention, in the context of its "Making Sense of Media" programme – the goal of which is to “help improve the online skills, knowledge and understanding of UK adults and children” according to Ofcom. The programme is one of the measures put in place by Ofcom in accordance with its statutory duty to promote media literacy and to carry out research into media literacy matter, as set out respectively in sections 11 and 14(6)(a) of the Communications Act 2003. With this toolkit, the regulator...
[GB] Ofcom launches second call for evidence as part of future role online safety regulator
On 10 January 2023, Ofcom published a call for evidence regarding matters anticipated to be included in their second consultation, scheduled for publication in autumn 2023 on the topic of the protection of children from legal content that is harmful to them. As part of Ofcom’s future role set out by the Online Safety Bill – still at report stage in the House of Commons at the moment of launching the call for evidence – as online safety regulator, Ofcom will publish codes of practice setting out the measures that platforms can take to protect children online and guidance regarding...
[GR] The implementation of the Digital Single Market Directive 2019/790 into Greek legislation: Law no 4996/2022
On 24 November 2022, Directive 2019/790 (DSM Directive) was incorporated into the Greek legal order by virtue of Part B of Law 4996/2022, which amends Law no 2121/1993 on copyright and related rights in various areas. Law no 4996/2022 generally follows the provisions set by the DSM Directive. However, in specific areas the Greek legislator adopts favourable measures that enable right holders to maintain a certain degree of control over the exploitation of their work. Law no 4996/2022 provides for several exceptions to copyright and related rights in order to facilitate text and data mining...
[IE] BAI announces funding for programmes in Irish language and programmes related to climate changes and climate action
The Broadcasting Authority of Ireland (BAI) announced the results of Rounds 46 and 44 of its Sound & Vision 4 scheme (respectively on 30 November and 19 December). At the request of Minister Catherine Martin, the BAI launched an Irish language-focused round of funding – Round 46. It was specifically tailored for projects supporting the development of new radio and television programmes in the Irish language, with the notable requirement of demonstrating gender equality (set at a minimum threshold of 50%) in leadership roles amongst performers and the creative production team. Five...
[IT] First fine from AGCOM against a social media platform (Facebook - Meta)
The board of the Italian Communications Authority (AGCOM) has agreed, unanimously, to fine Meta Platforms (Meta, which owns Facebook, Instagram, and WhatsApp) EUR 750,000 for the infringement of the gambling advertising prohibition introduced by the "Dignity decree". This is the first fine given by AGCOM to a social media platform (last August, AGCOM adopted its first sanction against the video sharing platform "YouTube", see Iris 2022-8/4). The Authority considered that Meta had conducted a clear infringement of the Italian Law prohibiting the diffusion of advertising...
[IT] Italy adopts new Regulation on programming and investment obligations in favour of European Works
On 14 December 2022, the Autorità per le Garanzie nelle Comunicazioni (Italian Communications Authority — AGCOM) adopted the new Regulation on programming and investment obligations in favour of European works and works by independent producers, through Resolution No. 424/22/CONS. The regulation further details the provisions contained in Legislative Decree No. 208/2021 (the AVMS Code). The programming and investment obligations for linear audiovisual media service providers are set forth, respectively, under Articles 4 and 5 of the Regulation. Under Article 4 of the Regulation,...
[LV] Electronic Communications Law comes into force in Latvia
On 27 July 2022, the new Electronic Communication Law (ECL) which transposes the European Electronic Communications Code (EECC) entered into force in Latvia. Specifically, by transposing the EECC, the new ECL: - enhances the deployment of 5G networks by ensuring availability and competition for investments - benefits and protects end-users by: ensuring access to the network, guaranteeing better cybersecurity, increasing the level of protection of citizens in emergency situations, and increasing the transparency of service providers, as well as benefiting end-users in other ways - adds...
[MD] Channel with programming from Moscow sanctioned
The national media regulator, the Audiovisual Council of Moldova (CA), has sanctioned the television station "REN Moldova" with six fines totaling 30,000 Moldovan Lei (about EUR 1,500) and a public warning. The violations were found by the CA during the monitoring of the programming of REN Moldova between 9 and 15 January 2023. They related to the non-compliant placement of advertising in the main “Evening News” bulletin, as well as the failure to indicate the sources of images in the news that had not been produced by the broadcaster itself, and an absence of a link...
[NL] New government-wide strategy on disinformation
On 23 December 2022, the Dutch government announced a significant new strategy on disinformation, which will involve three different government ministries. The new strategy on disinformation was contained in a Letter to Parliament on behalf of the Minister for Internal Affairs and Kingdom Relations (Binnenlandse Zaken en Koninkrijksrelaties), the State Secretary on Kingdom Relations and Digitisation (Koninkrijksrelaties en Digitalisering), the Minister of Justice and Security (Justitie en Veiligheid), and the State Secretary for Culture and Media (Cultuur en Media). Crucially, the government emphasised...
[NL] New rules on the designation of local broadcasters
On 1 February 2023, the Commissariaat voor de media (Dutch Media Authority) published an important new Policy Rule for the designation procedure for local broadcasters. The Media Authority drew up the new Policy Rule to provide municipalities and (potential) local broadcasters with more clarity and guidance during the designation procedure. This is the procedure to be followed when determining whether an applicant (partly on the basis of advice from a municipal council) receives a designation as a local broadcaster from the Media Authority. The policy rule came into effect on 1 February 2023. Under...
[PL] UKE has announced an EU ban on the broadcasting and distribution of Russian TV channels
According to an announcement on the UKE (Office of Electronic Communications) website, a ban on four Russian TV channels (NTV Mir, Rossiya 1, REN TV, Pervyi Kanal) became effective in Poland on 2 February 2023. The above-mentioned ban results from Council Implementing Regulation (EU) 2023/180 of 27 January 2023 implementing Regulation (EU) 2022/2474 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine published on 30 January 2023. As a result, service providers are obliged to block access to information...