IRIS newsletter 2022-7
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)
Summer 2022. It should have been the summer of our deliverance from the COVID pandemic, but not only is this far from becoming a reality, there are other reasons for discontent.
Four months have passed, and war is still raging in Ukraine. The sanctions applied to the Russian audiovisual industry in Europe continue to pile up. The Council of the European Union has added three further media outlets to the list of Russian media services prohibited in the EU. The Ukrainian and Moldovan parliaments have adopted legislation against Russian propaganda, and in Latvia, the National Electronic Mass Media Council (NEPLP) has blocked 80 Russian TV channels.
This terrible war also has consequences for the European audiovisual industry. The Russian decree “on the provisional procedure for the compliance with the obligations to certain rightsholders” provides instructions related to the way amongst others foreign rightsholders are entitled to receive debts, penalties, fines or other payments from Russia for the use of their intellectual property.
On a less dramatic, but nevertheless important level, the European Commission has referred five EU member states – Ireland, Romania, Slovakia, Spain and Czechia – to the Court of Justice of the European Union (CJEU) for failing to transpose the AVMSD.
This and many other interesting news items await you inside this month’s newsletter.
More than ever, and despite everything, we wish you a relaxing summer break.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Oganezova v. Armenia
The European Court of Human Rights (ECtHR) has delivered a judgment finding breaches of the European Convention on Human Rights (ECHR) because of lack of protection against hate speech (see also IRIS 2020-3/21 Beizaras and Levickas v. Lithuania). The ECtHR found a breach of the prohibition of inhuman or degrading treatment and discrimination on the basis of sexual orientation because the Armenian authorities had failed to protect an LGBT-activist from homophobic arson and online hate speech. The authorities had also failed to carry out an effective investigation in order to identify the people...
European Court of Human Rights: Pretorian v. Romania
The European Court of Human Rights (ECtHR) has found no violation of Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR) in a case concerning a civil judgment against an editor-in chief, for publishing articles, in both the printed version and the online edition of a weekly magazine, in which he defamed a politician. The ECtHR found that the domestic courts had correctly applied the criteria in balancing the rights of privacy and reputation under Article 8 and the right to freedom of expression under Article 10 ECHR. In particular, the ECtHR referred to the...
EU: Council of the EU
Council Implementing Regulation (EU) 2022/994 of 24 June 2022 implementing Regulation (EU) 2022/879 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine
On 24 June 2022, the Council of the European Union adopted the Implementing Regulation 2022/994, officially banning, as of 25 June 2022, Rossiya RTR/RTR Planeta, Rossiya 24/Russia 24, and TV Centre International, as provided by Article 2f of Regulation (EU) 833/2014 “concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine”. This Implementing Regulation 2022/994 follows the adoption of the Council Regulation (EU) 2022/879 of 3 June 2022 (see IRIS 2022-7/7 in this issue), adding the three media outlets in the Annex XV of Regulation...
EU: Council of the EU
Three additional Russian media outlets added to list of banned media in the EU
On 6 June 2022, the Council of the European Union adopted a Decision and Regulation, which added three further media outlets to the list of Russian media outlets prohibited in the EU under an earlier Decision and Regulation adopted in March 2022, following Russia’s invasion of Ukraine (see IRIS 2022-3/6). The media outlets added to the list are Rossiya RTR/RTR Planeta, Rossiya 24/Russia 24, and TV Centre International. RT- Russia Today English, RT- Russia Today UK, RT - Russia Today Germany, RT - Russia Today France, RT- Russia Today Spanish, and Sputnik are the media outlets which had...
EU: European Commission
Commission refers five member states to the CJEU for failing to transpose AVMSD
On 19 May 2022, the European Commission referred five EU member states – Ireland, Romania, Slovakia, Spain and Czechia – to the Court of Justice of the European Union (CJEU). The referral was based on Article 258 of the Treaty on the Functioning of the European Union (TFEU), under which, if a member state fails to fulfil an obligation under the Treaties and does not comply with a reasoned opinion delivered by the Commission within a set period, the Commission may bring the matter before the CJEU. This particular case concerns the member states’ failure to fully transpose the Audiovisual...
[AT] Austrian Supreme Court decides whether YouTube is responsible for content posted online before the implementation of the DSM Directive
In principle, the operator of a video-sharing platform or a file-hosting and sharing platform (in this case, YouTube) does not make a “communication to the public” of content that users illegally make available to the public. The Austrian Oberste Gerichtshof (Supreme Court – OGH) concluded that this was the case, at least prior to the implementation of Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (DSM Directive). In a decision published on 17 September 2021, the OGH considered...
[BE] French-speaking public broadcaster’s remit defined for 2023–2027
Every three to six years, the Belgian French-language public broadcasting body (RTBF) negotiates a so-called “management contract” (equivalent to the “contracts of aims and means” in France) with the government of the French-speaking community of Belgium. This contract lays down, on the one hand, RTBF’s public service obligations and, on the other, the financial resources and frequencies allocated to it by the government for the duration of the contract. The next management contract, which will cover the period from 2023 until 2027, is currently being negotiated....
[DE] Frankfurt Appeal Court refuses to grant injunction against tabloid newspaper for reporting on Russian TV channel’s spying activities
In a decision of 28 April 2022, the Oberlandesgericht Frankfurt am Main (Frankfurt am Main Appeal Court – OLG) rejected a complaint lodged by the provider of the German language version of the Russian TV broadcaster RT (RT DE) about an article published in the Bild newspaper. In particular, the article had alleged that the broadcaster had been involved in Russian spying activities linked to the poisoning of Alexei Navalny. In view of the overall context of the Bild article, the OLG considered the allegation to be an admissible expression of opinion. The disputed article was published...
[DE] Frankfurt Appeal Court: RT DE cannot prevent ex-employee publishing book on its working practices
In interim rulings issued on 19 May 2022, the Oberlandesgericht Frankfurt am Main (Frankfurt am Main Appeal Court – OLG) rejected two appeals lodged by the provider of the German language version of the Russian TV broadcaster RT (RT DE), seeking a ban on the publication of the first and second editions of a book by a former RT DE employee acting as a whistle-blower. In the book, the author deals, in particular, with the broadcaster’s alleged involvement in undercover investigations by the Russian government in relation to the opposition leader Alexei Navalny and is critical of RT DE’s...
[DE] State media authorities examine complaints on the protection of minors from graphic war images
According to a press release published on 7 April 2022 by the Kommission für Jugendmedienschutz (Commission for the Protection of Minors in the Media – KJM), the German state media authorities’ central supervisory body for the protection of minors in private broadcasting and telemedia, the state media authorities had received numerous reports of violations of human dignity and of rules on the protection of minors in the media in relation to the war in Ukraine. The KJM was especially concerned about the effects that brutal images of war could have on the development of children...
[FR] ARCOM sanction procedure clarified
Article 42-7 of Act no. 86-1067 of 30 September 1986 describes the procedure that should be followed by the Autorité de régulation de la communication audiovisuelle et numérique (Regulatory Authority for Audiovisual and Digital Communication – ARCOM) when it opens sanction proceedings against audiovisual service providers, designed especially to guarantee respect for the rights of defence and the adversarial principle. It was amended by Act no. 2021-1382 of 25 October 2021 on the regulation and protection of access to cultural works in the digital age in order to allow...
[FR] Blocking of streaming sites illegally retransmitting Roland-Garros tennis matches
The Fédération française de tennis (French Tennis Federation – FFT), the official organiser of the Roland-Garros French Open tennis championships held in Paris from 16 May to 5 June 2022, discovered that several websites accessible on French soil were broadcasting, free of charge, live streams of matches to which it held the exclusive broadcasting rights. On the basis of Article L. 333-10 of the French Sport Code, introduced under the Act of 25 October 2021, it filed a summons for urgent proceedings against the main Internet access providers in order to prevent the 19...
[FR] Court rejects politician’s request for reinstatement of Twitter account suspended because of hate content
A French politician and polemicist involved in the recent presidential election campaign as a supporter of the candidate of the Reconquête party, of which he had been the official spokesperson at the time, asked the courts to reinstate his Twitter account, which had been suspended. The plaintiff's account, which had 164,000 subscribers, had been suspended by the social network after he published the following tweet: “#Migrants #violence Pas un jour, PAS UN, sans que des #migrants d'#Afrique du #Nord ou subsaharienne s'attaquent aux #Français. Si nous faisions...
[GB] High Court decides ‘Shape of You’ composer Ed Sheeran and his co-songwriters did not deliberately or subconsciously copy the song ‘Oh Why’
Ed Sheeran and his co-songwriters, Johnny McDaid and Steve McCutcheon (the claimants), have won a copyright case, the High Court granting the declaration sought that their 2017 song "Shape of You" had not infringed the copyright of another song "Oh Why" composed in 2014 by Sami Chokri and Ross O’Donoghue (the defendants). The judge, Mr Justice Zacaroli, ruled that Sheeran and his collaborators had “neither deliberately nor subconsciously copied” the earlier song. The claimants commenced the proceedings when the defendants had the music royalty...
[GB] CMS report on influencer culture points to regulatory gaps and calls for reforms
On 9 May 2022, the House of Commons Digital, Culture, Media and Sport 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 its report on influencer culture, following the conclusion of its inquiry into influencers’ power on social media. Whilst acknowledging the benefits and the significant returns that influencer culture brings to the UK economy, the Committee emphasised that the industry needs to be given more serious consideration by the government. In the words of...
[GR] Live dynamic blocking procedure for the protection of broadcaster’s related rights: an overview of recent cases on sport events in Greece
The illegal retransmission of live sports events on the Internet is an issue of crucial importance for the protection of the legitimate interests of both broadcasters, having an exclusive transmission licence, and the State. In 2021, the number of viewers having illegal access to national or international sport events transmitted in the Greek territory exceeded 400000 people. Consequently, the estimated loss for a broadcaster offering a full package subscription at EUR 44.90 per month could reach up to EUR 215 520 000 per year. Under Greek legislation, Article 66E of Law no 2121/1993...
[IT] AGCOM publishes the final commitments presented by DAZN
The OTT platform DAZN, operating under German authorisation, has acquired the audiovisual rights to the Italian Serie A Championship, obtaining the possibility broadcasting all Serie A football matches (380 in total) for three years (2021-2024), of which 70% would be broadcast on an exclusive basis. Through Resolution No. 334/21/CONS, AGCOM initiated proceedings to define the quality parameters for the fruition of the live streaming broadcasting services of the Italian Serie A Championship offered by DAZN in Italy and, also ordered the streaming platform to adopt several measures aimed at ensuring...
[LV] Extension of the media restrictions on Russian channels
On 6 June 2022, the National Electronic Mass Media Council of Latvia (NEPLP) blocked 80 Russian TV channels in Latvia, thereby prohibiting all Russian TV channels from broadcasting in Latvia. The Parliament of Latvia has further expanded the powers of NEPLP by amending the Electronic Mass Media Law several times as a result of which the number of banned broadcasting channels continues to increase. Since the beginning of April 2022, three sets of amendments to the Electronic Mass Media Law have been introduced. The first set of amendments, which entered into force on 21 April 2022, grants the...
[MD] Audiovisual Code amended to prevent disinformation
On 2 June 2022, the Moldovan Parliament adopted a set of amendments to the Audiovisual Code (see IRIS 2019-3/24) that received the title: “Law on counteracting disinformation and propaganda”, and were designed to counter Russian propaganda about the war in Ukraine. The amendments define disinformation as “intentional dissemination of false information, created with the aim of inflicting harm to a person, a social group, an organisation or to the security of the state”. The amended Code now includes a total ban on “disinformation and propaganda about military...
[NL] Google not liable for fake advertisements featuring Dutch celebrities
On 18 May 2022, the Rechtbank Amsterdam (Amsterdam Court) () delivered a notable judgment regarding the liability of an internet platform for fake advertisements featuring the portrait or name of famous persons that seemingly promotes investment methods via cryptocurrencies. The case, which has received considerable media coverage, was brought to the Court by the Vladimir Foundation, founded by well-known Dutch figures. It aims to combat public deception by means of fake news or misleading advertisements featuring notable figures. The Court held that Google may not be held liable for these advertisements....
[NL] Dutch Media Authority begins the monitoring of popular video-uploaders
On 17 May 2022, the Commissariaat voor de Media (Dutch Media Authority) announced that as of 1 July 2022, "influential video-uploaders" will have to ensure their compliance with the Mediawet (Media Act). The new "Policy Rule for the qualification of commercial on-demand services 2022" clarifies which video-uploaders must register with the Media Authority and will be subject to "active monitoring". It is nothing new that entities uploading videos to video-sharing platforms may fall within the scope of the revised EU Audiovisual Media Services Directive (AVMSD) (see...
[RU] Restrictions on payments to “unfriendly” rightsholders
On 27 May 2022, the President of the Russian Federation issued a decree “on the provisional procedure for the compliance with the obligations to certain rightsholders”. The decree provides instructions related to the way significant groups of rightsholders, mostly foreign ones, are entitled to receive debts, penalties, fines or other payments from Russia for the use of their intellectual property. The decree applies to the payments intended for the following groups: - foreign rightsholders from the “unfriendly states” that are listed in the ordinance of the Government...
[UA] Statute to ban Russian propaganda
On 12 June 2022, the statute “On the ban on the propaganda from the Russian Nazi totalitarian regime” entered into force in Ukraine, having been earlier adopted by the Supreme Rada (the Parliament). It defines such propaganda as: “dissemination of information aimed at supporting or justifying the criminal nature of the activities of the Russian Federation, the authorities of the terrorist state (aggressor state), their officials, employees (including servicemen) and/or representatives who openly or covertly act on behalf of the Russian Federation on the territory of Ukraine or...