IRIS newsletter 2021-9
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
Sabine Bouajaja, European Audiovisual Observatory (co-ordination) • Sophie Valais, Francisco Javier Cabrera Blázquez and Julio Talavera Milla • Aurélie Courtinat • Barbara Grokenberger •
Coordination: Cyril Chaboisseau, European Audiovisual Observatory
© 2021 European Audiovisual Observatory, Strasbourg (France)
In his world-famous play Waiting for Godot, Samuel Beckett makes his character Vladimir utter the following sentence: "We are not saints, but we have kept our appointment. How many people can boast as much?" Well, if we look at the implementation of the AVMSD, there are still many EU member states that haven’t "kept their appointment". As mentioned in a previous editorial, this is due partly to delays forced by the COVID-pandemic. And yet, things are getting more serious: the reasoned opinion sent by the European Commission to nine EU countries is a further step in the infringement procedure initiated in November 2020. The member states in question have two months to reply to the Commission, or the Commission may refer the case to the Court of Justice of the European Union. In the meantime, a non-EU country "can boast as much": The Swiss Parliament adopted a revision of its film law on 01 October 2021, which introduces quotas for European works for non-linear services as well as an investment obligation for both linear and non-linear services, closely following the AVMSD rules.
Here in Strasbourg, the European Court of Human Rights has been busy producing some very interesting judgments. In two cases concerning the Italian public service broadcaster RAI, the court emphasised the need for pluralism in news and current affairs programmes, and in political platform programmes offered by the public broadcaster. Regarding the intermediary liability for content posted by social media users, the Strasbourg court found that the criminal conviction of a French politician for failing to promptly delete hate speech, posted by others, from his public Facebook account, did not violate the right to freedom of expression as guaranteed under Article 10 ECHR.
You can read about these and many other interesting developments in our electronic pages.
Stay safe and enjoy your read!
Maja Cappello, editor
European Audiovisual Observatory
COUNCIL OF EUROPE
European Court of Human Rights: Sanchez v. France
The European Court of Human Rights (ECtHR) has delivered a controversial judgment with regard to the criminal liability for posts on Facebook. It found that the criminal conviction of a politician for failing to promptly delete hate speech, posted by others, from his public Facebook account, did not violate the right to freedom of expression as guaranteed under Article 10 of the European Convention on Human Rights (ECHR). The case concerned the criminal conviction of Julien Sanchez, a politician of the radical right-wing Rassemblement National (National Rally— RN), who was standing...
European Court of Human Rights: Associazione Politica Nazionale Lista Marco Pannella and Radicali Italiani v. Italy and Associazione Politica Nazionale Lista Marco Pannella v. Italy
On 31 August 2021, the European Court of Human Rights (ECtHR) delivered two judgments dealing with political pluralism in programmes broadcast by Radio Televisione Italiana (the Italian state radio and television service — RAI). In both cases, the ECtHR emphasised the need for pluralism in news and current affairs programmes, and in political platform programmes offered by the public broadcaster. In the first case (Associazione Politica Nazionale Lista Marco Pannella and Radicali Italiani v. Italy), the ECtHR found no violation of the right to freedom of expression as guaranteed by Article...
European Court of Human Rights: Üçdağ v. Turkey
Once again in a case against Turkey, the European Court of Human Rights (ECtHR) has found a violation of the right to freedom of expression as guaranteed under Article 10 of the European Convention on Human Rights (ECHR). As the Turkish courts had not sufficiently substantiated why two posts on the Facebook account of an imam could be interpreted as propaganda for a terrorist organisation, the ECtHR found that his conviction amounted to an unjustified interference with his right under Article 10 ECHR. The case concerned Mr Üçdağ’s criminal conviction for disseminating propaganda...
EU: Court of Justice of the European Union
CJEU: Judgment on the Open Internet Regulation and zero tariff options
On 2 September 2021, the Court of Justice of the European Union (CJEU) delivered its judgment in C-34/20, concerning the EU Regulation (2015/2120) on open internet access (Open Internet Regulation), and the compatibility with EU law of “zero tariff options”, where an internet access provider applies a “zero tariff’ to all or part of data traffic associated with an application or category of applications. Notably, the CJEU ruled that a zero tariff option operated by a German ISP was incompatible with the Open Internet Regulation. The case involved Telekom Deutschland,...
EU: European Commission
European Commission Recommendation on safety and protection of journalists
The European Commission adopted a new Recommendation on ensuring the protection, safety and empowerment of journalists and other media professionals in the European Union on 16 September 2021. This is the European Commission’s first frontal engagement with these topics in a recommendation to the 27 EU Member States. The Recommendation provides guidance to the Member States on how to take “effective, appropriate and proportionate measures to ensure the protection, safety and empowerment of journalists”. It is framed in terms of EU law, policy and support measures. Various rights...
EU: European Commission
European Commission: Call on member states to fully transpose EU audiovisual and telecom rules
On 23 September 2021, the Commission announced that it had sent a reasoned opinion to the Czech Republic, Estonia, Ireland, Spain, Croatia, Italy, Cyprus, Slovenia and Slovakia for failing to provide information about the implementation of the EU Audiovisual Media Services Directive (AVMSD) into their national laws. This is a further step in the infringement procedure initiated in November 2020, when the Commission sent letters of formal notice to 23 Member States for not having notified full transposition (see IRIS 2021-1:1/25). On the same date, the Commission announced that it had...
European Commission: Poland referred to the CJEU for undermining the independence of the national telecommunications regulator
On 23 September 2021, the European Commission decided to refer Poland to the Court of Justice of the European Union for breaching the requirements of the European Electronic Communications Code (EECC), safeguarding the independence of the Urząd Komunikacji Elektronicznej (Office of Electronic Communications - UKE) the National Regulatory Authority (NRA) for telecommunications. Using an urgent procedure in May 2020, Poland had amended certain provisions of the Polish telecommunications law concerning the appointment and dismissal of the Heads of the UKE. With the same amending legislation, the...
[BG] Implementation of Directive 2019/789 and Directive 2019/790 past deadline, but in the works
On 15 September 2021, a procedure for the public consultation on Проект на Закон за изменение и допълнение на Закона авторското право и сродните му права (draft Bill for the amendment and supplement to the Copyright and Neighbouring Rights Act – the BIll) was initiated by the Министерство на културата (Ministry of Culture). The consultation is part of the mandatory process for transposing two of the, currently, most important EU directives concerning copyright and the TMT industry (technology, media and telecom industry): 1) Directive 2019/789 laying down rules on the exercise...
[CH] Switzerland adopts new obligations for audiovisual services
After 18 months of deliberation, the Swiss Parliament has adopted a revision of the Filmgesetz (Federal Act on Film Production and Film Culture – FiG) on 1 October 2021. The law introduces a quota for European works for non-linear services, as well as an investment obligation for both linear and non-linear services. The regulation closely follows the framework of the Audiovisual Media Services Directive (AVMSD) of the European Union. The volume of investment to films and audiovisual content is expected to increase by CHF 18 million per year. Non-linear services must include in their offer...
[CY] The law of the Public Service Media to incorporate provisions of the Directive 2018/1808/EU
A draft law, amending Chapter 300A of the Law on the Cyprus Broadcasting Corporation, is under discussion in the parliamentary committee on Internal Affairs of the House of Representatives. The draft law would transpose into the law of the public service media (Cyprus Broadcasting Corporation — CyBC) provisions of the new AVMS Directive 2018/1808/EU, as well as introducing other changes. The main sections of the European Directive that would be incorporated into CyBC's law are the following: New and amended definitions. Advertising, their distinction from programmes, their...
[CY] A draft law for the transposition of the AVMS Directive 2018/1808/EU into national Law
A draft law amending the Law on Radio and Television Organisations N.7(I)1998 is under discussion in the parliamentary committee on Internal Affairs of the House of Representatives aiming at the transposition of the Directive 2018/1808/EU into Cyprus Law. The draft law will incorporate the amendments of the AVMS Directive 2010/13/EU, introduced with the 2018 Directive, and further amend the Cyprus Law in compliance with provisions of the new Directive. They include, among others, the following: A new section explicitly provides for the independence of the Cyprus regulator, the Radio Television...
[CY] Extension of Temporary Television Licences for one Year to June 2022
Following the switch-over to digital television in July 2011, Cyprus audiovisual media service providers continue to operate with temporary digital licences. The latest extension of licences will be until the end of June 2022. Law 74(I)/2021, amending the basic Law on Radio and Television Organisations (L. 7(I)/1998), authorises the Radio Television Authority to extend the validity of television licences for all operating service providers for one more year. The law was published in the Official Gazette on 28 April 2021. Amendments to the basic Law 7(I)/1998 that would reflect the conditions...
[DE] Calls for tender to determine offers that must be easy to find on user interfaces in accordance with “public value” rules
On 1 September 2021, the 14 German Landesmedienanstalten (state media authorities) published calls for tender pursuant to Article 84 of the Medienstaatsvertrag (state media treaty – MStV) in order to determine offers that must be easy to find in user interfaces. Separate calls for tender for video and audio services must be organised in accordance with Article 3(1)(2) of the state media authorities’ Public-Value-Satzung (public value rules). They mark the start of the process described in Article 84(5) MStV for determining so-called public value offers of private media (i.e. those that...
[DE] Federal Supreme Court rules on influencers’ advertising obligations
In three rulings published on 9 September 2021, in relation to the well-known German social media influencers Leonie Hanne, Cathy Hummels and Luisa-Maxime Huss (case nos. I ZR 90/20, I ZR 125/20 and I ZR 126/20), the Bundesgerichtshof (Federal Supreme Court – BGH) decided whether influencer posts should be labelled as advertising. The proceedings were instigated by an association in competition, which had accused the influencers of engaging in surreptitious advertising pursuant to Articles 8(1)(1), 8(3)(2), 3(1) and 5a(6) of the Gesetz gegen den unlauteren Wettbewerb (Unfair Competition...
[DE] TikTok deletes 91 Nazi profiles and 169 violent videos following media authority warning
According to a press release published on 29 July 2021 by the Medienanstalt Hamburg/Schleswig-Holstein (Hamburg/Schleswig-Holstein media authority – MA HSH), one of Germany’s 14 media regulators, the TikTok social media platform recently deleted 91 profiles and 169 videos containing either Nazi references or scenes of violence that could be harmful to minors after receiving a notification from the MA HSH. The TikTok platform is a video portal that enables users to upload music videos or short video clips. It also includes social networking features and is operated by the Chinese...
[ES] The CAC approves the report on the CCMA’s fulfillment of its public service missions in 2019
The Plenary session of the regulatory authority, Consell de l'Audiovisual de Catalunya (Catalan Audiovisual Council — CAC), held on 8 September, approved Agreement 73/2021 on the Corporació Catalana de Mitjans Audiovisuals' (Catalan Media Corporation — CCMA) fulfilment of the public service missions assigned by Ley 22/2005, de 29 de diciembre, de la comunicación audiovisual de Cataluña (Law 22/2005, of 29 December, on audiovisual communication in Catalonia — LCA). The CAC report analyses the content broadcast and disseminated by the CCMA during...
[ES] Audiovisual service providers established in Spain comply with their obligations to finance European works
The independent state body responsible for ensuring the proper functioning of the markets in Spain, the CNMC (Comisión Nacional de los Mercados y la Competencia), has published a report on the obligation to finance European works in 2019. The dossier reveals a small decrease in investment, compared to the previous year's data, especially in relation to series in the different official languages of the country. The obligation of advance funding, to which audiovisual service providers established in Spain are subject to, is set out in the Ley 7/2010, de 31 de marzo, General de la Comunicación...
[FR] CSA considers Eric Zemmour an actor in national political debate and asks audiovisual media to measure his speaking time
At its plenary assembly on 8 September, the board of the Conseil supérieur de l’audiovisuel (the French audiovisual regulator – CSA) decided to ask audiovisual media to start measuring the amount of airtime given to essayist and polemicist Eric Zemmour in relation to the national political debate from the following day. Zemmour, who appears to be on the verge of standing in the presidential election, had been making daily appearances on the programme “Face à l’info” broadcast on channel C8 and watched by around 700 000 viewers between 7pm and 8pm each...
[FR] CSA reviews measures to combat the manipulation of information on online platforms
The loi du 22 décembre 2018 relative à la lutte contre la manipulation de l’information (Law of 22 December 2018 on combating the manipulation of information), requires online platform operators to cooperate in this area. For the second year, 11 such operators notified the CSA (the French audiovisual regulator) of the methods they had implemented in the fight against the dissemination of false information: Dailymotion, Facebook, Google (Google Search and YouTube), LinkedIn, Microsoft (Bing and Microsoft Advertising), Snapchat, Twitter, Unify (Doctissimo), Webedia (Jeuxvideo.com),...
[FR] Fight against hate speech and illegal online content: new obligations imposed on CSA-monitored platforms
The loi confortant le respect des principes de la République (law reinforcing respect of the principles of the Republic), which aims to combat separatism, was published in the Official Gazette on 25 August 2021. Chapter IV of the law contains a substantial range of measures designed to fight hate speech and illegal online content. Anticipating the transposition of the future European Digital Services Act (DSA), in particular the section concerning online hate, the legislator added an Article 6-4 to the loi pour la confiance en l’économie numérique (law on trust in...
[FR] Health crisis: new funding for cinema operators
Extending the measures introduced at the end of July to stimulate film exploitation by meeting cinemas’ cash-flow and investment needs, the Centre national du cinéma et de l'image animée (National Centre for Cinema and the Moving Image – CNC) announced, on 22 September, the creation of a new fund designed to offset some of the drop in income experienced by cinemas. The aim is to avoid any risk of economic failure that could impact the entire film industry. The lengthy enforced closure of cinemas from 28 October 2020 until 18 May 2021, as well as the health measures...
[GB] Ofcom clears ITV for Piers Morgan’s controversial comments about Meghan Markle
On 1 September 2021, Ofcom, the UK’s communications regulator, rejected a record of complaints about Piers Morgan’s comments on Good Morning Britain in the wake of the Duke and Duchess of Sussex’s interview with Oprah Winfrey. Good Morning Britain (GMB) is a weekday morning news and discussion programme broadcast on ITV. On 8 March 2021, GMB was dominated by the interview between Oprah Winfrey and the Duke and Duchess of Sussex which had been broadcast overnight in the USA. Excerpts from the interview had been made publicly available ahead of its full broadcast in the UK that...
[LT] Radio and Television Commission adopts rules for codes of ethics for audiovisual media services and video sharing platforms
On 8 September 2021, the Lietuvos radijo ir televizijos komisija (Radio and Television Commission of Lithuania — RTCL) approved the description of the requirements to be applied to codes of ethics for audiovisual media services providers and video sharing platform services providers, and for the evaluation of their effectiveness (Sprendimas dėl Audiovizualinės žiniasklaidos paslaugų teikėjų ir dalijimosi vaizdo medžiaga platformos paslaugų teikėjų taikomų elgesio (etikos) kodeksų ar jų dalių veiksmingumo nustatymo tvarkos aprašo patvirtinimo; the requirements). According to the...
[NL] Google not required to reinstate Dutch MP’s YouTube video on COVID-19
On 18 August 2021, the Amsterdam District Court (Rechtbank Amsterdam) delivered a notable judgment on YouTube’s removal of a Member of Parliament’s video in the run-up to the recent Dutch parliamentary elections. Crucially, the Court held that YouTube had not violated the politician’s freedom of expression, and although YouTube has a “vast reach”, it does not have an obligation to allow content that violates its COVID-19 misinformation policy. The case involved Mr. Wybren van Haga, a Dutch politician and member of the House of Representatives (Tweede Kamer), who...
[NL] Judgment on removal of political party’s video and 7-day YouTube ban
On 15 September 2021, the Amsterdam District Court (Rechtbank Amsterdam) delivered a significant judgment on the removal of a Dutch political party’s videos from YouTube, and the party’s subsequent seven-day prohibition on uploading, posting or livestreaming via YouTube. Notably, building upon earlier case law from the Dutch courts (see IRIS 2020-10/16), the Court applied the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), but ultimately concluded that YouTube’s removal of the videos and imposition of a seven-day upload ban, was...
[RO] Clarification regarding the video section of an online publication
On 8 September 2021, the Consiliul Naţional al Audiovizualului (National Audiovisual Council — CNA) issued a press release offering a clarification regarding video sections of online publications. The press release, written for online publications that have separate video sections and for those that intend to provide audiovisual media services on demand, set out the information that the CNA had made known in its public meeting of 31 August 2021. Following the analysis of a petition regarding the video section of an online publication, it had identified two possible scenarios in relation...
[RO] Legislative procedure terminated for the modification of the PSB Law
The legislative procedure for the modification of the Romanian Public Service Broadcasters Law, initiated by more center-right Romanian MPs, was concluded on 2 June 2021 by the initiators, who have asked the Parliament to end the procedure (see inter alia IRIS 2014-7/30, IRIS 2015-6/33, IRIS 2015-8/26, IRIS 2016-5/28, IRIS 2017-3/26, IRIS 2017-8/31, IRIS 2017-10/31, IRIS 2018-1/35, IRIS 2018-2/30, IRIS 2018-6/29, IRIS 2018-7/27, IRIS 2021-6/18). The draft Law had received negative opinions from the Legislative Council as well as from the Economic and Social Council. The two bodies argued the...