IRIS 2010-9 INTERNATIONAL

IRIS 2010-9

INTERNATIONAL

COUNCIL OF EUROPEEuropean Court of Human Rights: Andreescu v. Roma-nia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3European Commission against Racism and Intolerance:Growing Emphasis on Internet Racism in New CountryReports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

EUROPEAN UNIONCourt of Justice of the European Union: Télévisionfrançaise 1 SA (TF1) v Commission . . . . . . . . . . . . . . . . . . . . . . . 4European Commission: Report on the Challenges for Eu-ropean Film Heritage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5European Parliament: Written Declaration 12/2010 . . . . . . . 5

OSCEOSCE: Representative on Freedom of the Media - Regu-lar Report to the OSCE Permanent Council . . . . . . . . . . . . . . . . 6

REGIONAL AREASCommonwealth of Independent States: Model Statuteto Fight Extremism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Commonwealth of Independent States: Model Statuteto Fight Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Commonwealth of Independent States: Model Statuteto Protect Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Commonwealth of Independent States: Model Code onIntellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

NATIONAL

AT-AustriaTelecommunications Act Draft Amendment on Data Re-tention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

BA-Bosnia And Herzegovina

Recent Developments in PBS Transition to Digital Broad-casting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

BG-Bulgaria

Preparation of a New Bill for the Electronic Media . . . . . . . .11Proofs for Granted Copyrights and Related Rights . . . . . . . .11

BY-Belarus

Regulation of the National Segment of Internet Enforced. .12

CY-Cyprus

Commercial Digital Platform Awarded . . . . . . . . . . . . . . . . . . . .13

DE-Germany

Temporary Injunction against Save.TV Technical ServiceCompany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13

Court Refuses to Open Main Proceedings on "Black Surf-ing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14GEMA (Provisionally) Loses Legal Dispute with YouTube . .14OLG München Upholds Cameraman’s Claim. . . . . . . . . . . . . .15New Developments in Cinema Digitisation . . . . . . . . . . . . . . .15Government Adopts Bill Strengthening Press Freedom . . .15Federal Network Agency Wants to Delegate Cable Reg-ulation to Cartel Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

FR-France

HADOPI gets moving! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16Abolition of Advertising on Public-sector Channels Sus-pended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17CSA Study on the Circulation of Audiovisual Works . . . . . . .18

GB-United Kingdom

List of Protected Free-to-Air Events to be Retained Una-mended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19Regulator Reviews Programmes Sponsored by the Scot-tish Government. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

GR-Greece

Greek Public Service Broadcaster in Crisis . . . . . . . . . . . . . . .20

HR-Croatia

New Media Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

IS-IcelandResolution on the Protection of Freedom of Expressionand Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

MD-Moldova

Freedom of Expression Act Enters into Force . . . . . . . . . . . . .21

ME-Montenegro

New Laws on Electronic Communications and MediaAdopted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

RO-Romania

Public Consultation to Modify the Audiovisual Code . . . . . .23Digital Switchover Postponed . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

SK-Slovakia

Plans of the New Government in the Area of Media . . . . . .24

TR-Turkey

Cinematographic Works Collecting Societies HaveJoined Forces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

GB-United Kingdom

Ofcom Decisions on the Regulation of the Pay-TV Market. .25

Editorial Informations

Publisher:European Audiovisual Observatory76, allée de la Robertsau F-67000 STRASBOURGTél. : +33 (0) 3 90 21 60 00 Fax : +33 (0) 3 90 21 60 19E-mail: [email protected] www.obs.coe.intComments and Contributions to:[email protected] Director:Wolfgang ClossEditorial Board:Susanne Nikoltchev, Editor � Francisco Javier CabreraBlázquez, Deputy Editor (European Audiovisual Observatory)Michael Botein, The Media Center at the New York Law School(USA) � Jan Malinowski, Media Division of the Directorateof Human Rights of the Council of Europe, Strasbourg(France) � Andrei Richter, Moscow Media Law and PolicyCenter (MMLPC) (Russian Federation) � Alexander Scheuer,Institute of European Media Law (EMR), Saarbrücken(Germany) � Harald Trettenbrein, Directorate General EAC-C-1 (Audiovisual Policy Unit) of the European Commission,Brussels (Belgium) � Nico A.N.M. van Eijk, Institute forInformation Law (IViR) at the University of Amsterdam (TheNetherlands)Council to the Editorial Board:Amélie Blocman, Victoires ÉditionsDocumentation/Press Contact:Alison HindhaughTel.: +33 (0)3 90 21 60 10;E-mail: [email protected]

Translations:Michelle Ganter, European Audiovisual Observatory (co-ordination) � Brigitte Auel � Véronique Campillo � Paul Green� Bernard Ludewig � Marco Polo Sàrl � Manuella Martins �

Diane Müller-Tanquerey � Katherine Parsons � Stefan Pooth �

Erwin Rohwer � Nathalie-Anne SturlèseCorrections:Michelle Ganter, European Audiovisual Observatory (co-ordination) � Francisco Javier Cabrera Blázquez & SusanneNikoltchev, European Audiovisual Observatory � ChristinaAngelopoulos, Institute for Information Law (IViR) at theUniversity of Amsterdam (The Netherlands) � CarolineBletterer, post graduate diploma in Intellectual Property,Centre d’Etudes Internationales de la Propriété Intellectuelle,Strasbourg (France) � Amélie Lépinard, Master - Internationaland European Affairs, Université de Pau (France) � BrittaProbol, Logoskop media, Hamburg (Germany) � Candelariavan Strien-Reney, Law Faculty, National University of Ireland,Galway (Ireland) � Anne Yliniva-Hoffmann, Institute ofEuropean Media Law (EMR), Saarbrücken (Germany)Distribution:Markus Booms, European Audiovisual ObservatoryTel.:+33 (0)3 90 21 60 06;E-mail: [email protected] Design:Coordination: Cyril Chaboisseau, European AudiovisualObservatory � Development and Integration: www.logidee.com� Layout: www.acom-europe.com and www.logidee.comISSN 2078-6158 2010 European Audiovisual Observatory, Strasbourg(France)

http://www.obs.coe.int/

mailto:[email protected]

mailto:[email protected]

INTERNATIONAL

COUNCIL OF EUROPE

European Court of Human Rights: Andreescuv. Romania

The applicant, Gabriel Andreescu, is a well-known hu-man rights activist in Romania. He was among thosewho campaigned for the introduction of Law No. 187,which gives all Romanian citizens the right to inspectthe personal files held on them by the Securitate (theformer Romanian intelligence service and secret po-lice). The law also allows access to information ofpublic interest relating to persons in public office whomay have been Securitate agents or collaborators. Apublic agency, the Consiliul National pentru StudiereaArhivelor Securitatii (National Council for the Study ofthe Archives of the Securitate - CNSAS) is responsi-ble for the application of Law No. 187. In 2000, An-dreescu submitted two requests to the CNSAS: one tobe allowed access to the intelligence file on him per-sonally and the other seeking to ascertain whether ornot the members of the Synod of the Romanian Ortho-dox Church had collaborated with the Securitate. Hereceived no reply and organised a press conferenceat which he criticised A.P., a member of the CNSAS,making reference to some of A.P.’s past activities. An-dreescu’s remarks on A.P.’s past received widespreadmedia coverage.

A.P. made a criminal complaint against Andreescu ac-cusing him of insult and defamation. After being ac-quitted in first instance, Andreescu was ordered bythe Bucharest County Court to pay a criminal fine to-gether with a high amount in compensation for non-pecuniary damage. The appeal Court ruled that hehad not succeeded in demonstrating the truth of hisassertion that A.P. had collaborated with the Securi-tate. Furthermore, a certificate issued by the CNSAShad meanwhile stated that A.P. had not collaborated.

Relying on the European Convention of Human Rightsand Fundamental Freedoms, Andreescu lodged an ap-plication with the European Court of Human Rightsconcerning his conviction for defamation. Althoughthe interference by the Romanian authorities with An-dreescu’s freedom of expression had been prescribedby law and had pursued the legitimate aim of protect-ing A.P.’s reputation, the European Court consideredthat the sanction was a violation of Article 10 of theConvention. The Court held that Andreescu’s speechhad been made in the specific context of a nationwidedebate on a particularly sensitive topic of general in-terest, namely the application of the law concerningcitizens’ access to the personal files kept on them bythe Securitate, enacted with the aim of unmasking

that organisation’s nature as a political police force,and on the subject of the ineffectiveness of the CN-SAS’s activities. In that context, it had been legitimateto discuss whether the members of that organisationsatisfied the criteria required by law for holding sucha position. Andreescu’s remarks had been a mix ofvalue judgments and factual elements and he had es-pecially alerted public opinion to the fact that he wasvoicing suspicions rather than certainties. The Courtnoted that those suspicions had been supported byreferences to A.P.’s conduct and to undisputed facts,such as his membership with the transcendental med-itation movement and the modus operandi of Securi-tate agents. According to the Court, Andreescu hadacted in good faith in an attempt to inform the public.As his remarks had been made orally at a press con-ference, he had no opportunity of rephrasing, refiningor withdrawing them. The European Court was alsoof the opinion that the Romanian court, by convict-ing Andreescu, had paid no attention to the context inwhich the remarks at the press conference had beenmade. It had certainly not given “relevant and suf-ficient” reasons for convicting Andreescu. The Courtnoted furthermore that the high level of damages -representing more than 15 times the average salaryin Romania at the relevant time - could be consideredas a measure apt to deter the media and opinion lead-ers from fulfilling their role of informing the public onmatters of general interest. As the interference withAndreescu’s freedom of expression had not been justi-fied by relevant and sufficient reasons, the Court heldthat there had been a violation of Article 10. It alsofound a breach of Article 6 § 1 of the Convention (rightto fair trial) due to Andreescu’s conviction without ev-idence being taken from him in person, especially af-ter he had been acquitted at first instance. The Courtheld that Romania was to pay Andreescu EUR 3,500in respect of pecuniary damage, EUR 5,000 for non-pecuniary damage and EUR 1,180 for costs and ex-penses.

• Arrêt de la Cour européenne des droits de l’homme (troisièmechambre), affaire Andreescu c. Roumanie, requête n◦19452/02 du8 juin 2010 (Judgment by the European Court of Human Rights (ThirdSection), case of Andreescu v. Romania, No. no. 19452/02 of 8 June2010)http://merlin.obs.coe.int/redirect.php?id=12677 FR

Dirk VoorhoofGhent University (Belgium) & Copenhagen University

(Denmark) & Member of the Flemish Regulator forthe Media

European Commission against Racism andIntolerance: Growing Emphasis on InternetRacism in New Country Reports

On 15 June 2010, the European Commission againstRacism and Intolerance (ECRI) released its latest re-ports on France, Georgia, Poland and “the former Yu-goslav Republic of Macedonia” (fYROM), adopted in

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the fourth round of its monitoring of the laws, policiesand practices to combat racism in the Member Statesof the Council of Europe (for commentary on earlierreports, see IRIS 2010-4: 1/3, IRIS 2009-10: 0/109,IRIS 2009-8: 5/4, IRIS 2009-5: 4/4, IRIS 2008-4: 6/5,IRIS 2006-6: 4/4 and IRIS 2005-7: 3/2).

The main recommendations dealing with the (audio-visual) media and/or the Internet in these reports canbe grouped into three rough categories. The first cate-gory concerns the harmful effects of stereotypes prop-agated by the media (Reports on the fYROM (para. 73and 74) and Georgia (para. 56)). The overall tenorof ECRI’s various recommendations flowing from thisfocus is that States authorities should encourage andactively support measures aimed at promoting pos-sible roles for the media in fostering “interethnic co-hesion” (Report on fYROM, para. 74) or, generally,“reconciliation”, “mutual trust”, “mutual understand-ing”, “tolerance” and “peaceful co-existence” amongdifferent groups in society (Report on Georgia, para.56).

The second main category of recommendations fo-cuses on racism disseminated via the Internet. Thus,in its Report on Poland, ECRI calls for “an increasein law-enforcement resources for the fight againstracism on the Internet” (para. 103). Similarly, in itsReport on France, ECRI “strongly recommends” thatthe French authorities “pursue and reinforce their ef-forts to combat forms of racist expression propagatedvia the Internet”, including by publicising “the ban onthe use of statements inciting to racial hatred” whichare disseminated online and the possibility of report-ing violations of the ban (para. 83). In respect of thefYROM, ECRI recommends increased vigilance by theauthorities in tackling the problem and the establish-ment of a “surveillance system, in co-operation withaccess providers and without interfering in the latter’sindependence” to monitor the situation (para. 76).The Report on France also focuses on the need toraise media awareness of the need for them to pre-vent the content of discussion boards hosted on theirInternet sites from creating “an atmosphere of hos-tility towards and rejection of members of minoritygroups” (para. 79).

The third category of recommendations has a catch-all character. It comprises a number of now-familiarcalls by ECRI on States authorities, e.g. to denounceracist expressions by public figures and to initiate le-gal proceedings against offenders, as appropriate (Re-port on fYROM, para. 72) and to raise awarenessamong media professionals about the need to reportrelevantly and sensitively on (potential) ethnic dimen-sions to criminal cases and other stories (Report onPoland, para. 105). A final - more specific - rec-ommendation falling in this category, is that the Na-tional Broadcasting Council of Poland should “show in-creased vigilance concerning racism within its field ofcompetence”, including by raising public awarenessabout the existence of the relevant complaints mech-anism (ibid., para. 97).

• ECRI Reports on Georgia, Poland and “the former Yugoslav Republicof Macedonia” (fourth monitoring cycle), all adopted on 28 April 2010and ECRI Report on France (fourth monitoring cycle), adopted on 29April 2010; all published on 15 June 2010http://merlin.obs.coe.int/redirect.php?id=11705 EN FR

Tarlach McGonagleInstitute for Information Law (IViR), University of

Amsterdam

EUROPEAN UNION

Court of Justice of the European Union:Télévision française 1 SA (TF1) v Commission

The European Court of Justice has handed down an-other decision in a long list rejecting of claims byTélévision française 1 (TF1) against the EuropeanCommission in relation to French state aid to the pub-lic service broadcaster France-Télévisions (see for ex-ample most recently IRIS 2010-7: 1/3, IRIS 2009-5:5/5 and IRIS 2009-1: 0/104). On 13 September 2010,the General Court dismissed TF1’s action requestingthat Commission Decision C(2006) 832 final of 22March 2006 be annulled.

The decision approved new financial support mea-sures granted through the Centre national de la ciné-matographie (National cinematographic centre - CNC)for cinematographic and audiovisual production inFrance as compatible with the common market, tak-ing the view that the investment obligations did notinvolve State resources and therefore did not consti-tute State aid within the meaning of Article 87 EC (see2006-5: 7/8).

The Court noted that, under the fourth paragraph ofArticle 230 EC, any natural or legal person may in-stitute proceedings against a decision addressed tothat person or against a decision which, although inthe form of a regulation or a decision addressed toanother person, is of direct and individual concernto the former. However, an undertaking cannot relysolely on its status as a competitor of the undertakingwhich benefits from the measure in question; it mustalso demonstrate the magnitude of the prejudice toits market position. The General Court found that TF1had not specifically and precisely demonstrated that itwas individually concerned by the Commission’s deci-sion; it had not shown that its competitive position issubstantially affected vis-à-vis its competitors, othertelevision service providers or large audiovisual com-munications groups in regard to the disputed supportmeasures of the CNC, as claimed, while it is not thetask of the General Court to speculate as to the rea-soning and precise observations, both in fact and law,which might lie behind the claims in the application.The Court thus rejected TF1’s action as inadmissible

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and did not proceed to rule on the merits of the ques-tion of whether the measures are to be consideredState aid.

• Case T-193/06, Télévision française 1 SA (TF1) v Commission, 13September 2010http://merlin.obs.coe.int/redirect.php?id=12682 DE EN FRBG CS DA EL ES ET FI HU IT LT LVMT NL PL PT RO SK SL SV• Commission Decision C(2006) 832 final of 22 March 2006 relating tosupport measures for the cinema and audiovisual industry in Francehttp://merlin.obs.coe.int/redirect.php?id=12683 FR

Christina AngelopoulosInstitute for Information Law (IViR), University of

Amsterdam

European Commission: Report on the Chal-lenges for European Film Heritage

On 6 June 2010 the European Commission’s Informa-tion Society and Media Directorate General publisheda study on the challenges for European film heritagefrom the analogue and the digital era. The study con-stitutes the second implementation report of the 2005Recommendation on Film Heritage, which calls for EUMember States to improve conditions of the conserva-tion, restoration and exploitation of film heritage andremove obstacles to the development and full com-petitiveness of the European film industry. MemberStates are encouraged to inform the Commission ev-ery two years of action taken in response to the Rec-ommendation. The first implementation report wasreleased in August 2008.

The current report is based on a questionnaire cir-culated by the European Commission and coveringall aspects of the Film Heritage Recommendation, aswell as two additional questions: the challenges andopportunities for European film heritage which arisefrom the transition from the analogue to the digitalera and the link between film funding policies and filmheritage. These issues therefore also form the sub-ject matter of the report and are organised into threechapters: I. Analysis of the situation of film heritagein Europe in those areas covered by the Film HeritageRecommendation; II. Challenges and opportunities ofthe digital era for film heritage institutions; III. Accessto European film heritage. The report suggests thatEurope’s film heritage institutions should take a newapproach to the way they safeguard and provide ac-cess to Europe’s film heritage. The traditional modelof conserving fragile film materials in vaults cannotguarantee preservation for posterity nor accessibility.A move should be made from the old “sealed box” ap-proach to a new “full access” model. The report fur-ther suggests that amendments to the existing legalframework might be necessary so as to permit suchaccess, particularly the efficient cultural and educa-tional use of the films and related film material. Fi-

nally, best practices collected from among the Mem-ber States for dealing with the challenges of analogueand digital film heritage are highlighted.

The report is only a first evaluation of the situationin this area. Further action is foreseen: this summerthe Commission launched an invitation to tender foran independent study which will look in detail into thequestion of the challenges of the digital era for filmheritage institutions. On the basis of the study theCommission intends to consider whether a new Com-munication or a revision of the existing Film HeritageRecommendation will be necessary to bolster effortsin the field. Meanwhile, the next application report bythe Member States is due by November 2011.

• Commission Staff Working Document on the challenges for Euro-pean film heritage from the analogue and the digital era, Brussels, 2June 2010, SEC(2010) 853 finalhttp://merlin.obs.coe.int/redirect.php?id=12685 EN• Recommendation of the European Parliament and of the Councilof 16 November 2005 on film heritage and the competitiveness ofrelated industrial activities, [2005] OJ L 323/57http://merlin.obs.coe.int/redirect.php?id=15051 CS DA ELES ET FI HU IT LT LV MT NL PL PTSK SL SV DE EN FR

Christina AngelopoulosInstitute for Information Law (IViR), University of

Amsterdam

European Parliament: Written Declaration12/2010

Earlier this year four MEPs submitted a Written Decla-ration on the lack of a transparent process for the Anti-Counterfeiting Trade Agreement (ACTA), also calledWritten Declaration 12. The declaration urges theCommission to make the documents relating to thenegotiation of that Agreement publicly available. Im-portantly, though, it also draws attention to a numberof substantive provisions that might be objectionable:namely, those relating to criminal sanctions, liabilityof service providers and border measures. Moreover,it stresses that ACTA should not impose indirect har-monisation of intellectual property laws at the Euro-pean level and that the principle of subsidiarity oughtto be respected.

While a Written Declaration has no binding force, itcan be an accurate indicator of the European Parlia-ment’s stance on a given issue. It is a tool that maybe used by up to five MEPs to suggest holding a de-bate on a certain subject, according to Rule 123 of theRules of Procedure of the European Parliament. How-ever, if the declaration is signed by a majority of theMEPs, it is forwarded to the President and is includedin the agenda of the plenary session, i.e., ultimatelythe declaration may be adopted by the Parliament. Itis also forwarded to all relevant institutions.

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In the case of the Written Declaration 12, 387 MEPssigned it before the lapse date (9 September 2010).Accordingly, its adoption by the European Parliamentis a necessary consequence, as it is its forwardingto the European Commission. As it stands, WrittenDeclaration 12 represents a clear admonition to theCommission. It hints that the European Parliamentwill take a strong position on this matter and that itis attentive to possible discrepancies on the part ofthe Commission. Above all, it is a significant politicalyellow card.

• Written Declaration 12/2010 on the lack of a transparent processfor the Anti-Counterfeiting Trade Agreement (ACTA) and potentiallyobjectionable contenthttp://merlin.obs.coe.int/redirect.php?id=12679 DE EN FR

Ana RamalhoInstitute for Information Law (IViR), University of

Amsterdam

OSCE

OSCE: Representative on Freedom of the Me-dia - Regular Report to the OSCE PermanentCouncil

On 29 July 2010, Dunja Mijatovic, the OSCE Represen-tative on Freedom of the Media, presented the regu-lar report to the OSCE Permanent Council, the organ-isation’s main decision-making body. The report con-sists of overviews of issues raised in the participatingcountries, activities of the Representative in the lastperiod and planned activities for the next reportingperiod. A large part of the report consists of the anal-ysis of issues raised in 26 of the OSCE participatingstates. In the last period the Representative had todeal with several issues concerning media freedom,such as media pluralism, editorial independence, thephysical safety of journalists and investigative journal-ism. In several countries issues of media freedom withregard to audiovisual content arose, including the fol-lowing:

- The Representative addressed the Albanian authori-ties about a defamation case in which a broadcastingcompany was ordered to pay EUR 400,000 in dam-ages to a former minister. The Representative re-minded the authorities that a true democratic societyencourages investigative journalism; consequently,awarded damages should be proportionate, as other-wise a chilling effect on reporting could ensue;

- The Representative voiced her concern about an in-struction issued by the Prime Minister of the Repub-lika Srpska of Bosnia and Herzegovina, in which hecalled upon public institutions to stop their coopera-tion with the public service broadcaster after airing an

allegedly inaccurate portrayal of the entity’s govern-mental actions. The Representative emphasised thatpublic service broadcasters must not be exposed toany political pressure;

- In France the President nominated a new head of thepublic service broadcaster, France Télévisions. TheRepresentative restated that the presidential nomina-tion of the head of a country’s public service broad-caster is an obstacle to its independence and contra-dicts OSCE commitments;

- In June the Representative requested that the Hun-garian authorities halt the drafting of media legisla-tion, as the proposed legislation could breach OSCEstandards guaranteeing freedom of expression andfreedom of the media. Despite the request parts ofthe draft media legislation were adopted by the Hun-garian Parliament (see IRIS 2010-8: 1/34). Recentlythe Representative presented the Hungarian Govern-ment with an expert legal analysis of the adopted lawsand draft media legislation. She asked that the Gov-ernment reconsider and amend the media package;

- The Representative asked Turkish authorities to re-store access to YouTube and other services offered byGoogle and bring the so-called Internet Law in linewith international standards on freedom of expres-sion. She also stressed that in the last two yearsmore than 5.000 websites were blocked in Turkey,which considerably limits freedom of expression andseverely restricts citizens’ right to access of informa-tion.

The Representative also informed the PermanentCouncil about several legal reviews, such as the anal-ysis of the Decree on the establishment of the publictelevision and radio broadcasting in the Kyrgyz Repub-lic. Finally, it was mentioned that the Representativeparticipated in several expert events relating to free-dom of expression and the Internet. She stated thatthe Office is currently working on a document on Inter-net legislation which will include an overview of legalprovisions related to freedom of media, the free flowof information and media pluralism on the Internet inthe OSCE region.

• Regular Report to the Permanent Council by the OSCE Representa-tive on Freedom of the Media, 29 July 2010http://merlin.obs.coe.int/redirect.php?id=12680 EN• Analysis and Assessment of a Package of Hungarian Legislation andDraft Legislation on Media and Telecommunications, prepared by DrKarol Jakubowicz, commissioned by the Office of the OSCE Represen-tative on Freedom of the Mediahttp://merlin.obs.coe.int/redirect.php?id=12681 EN

Kim de BeerInstitute for Information Law (IViR), University of

Amsterdam

6 IRIS 2010-9





REGIONAL AREAS

Commonwealth of Independent States:Model Statute to Fight Extremism

The Commonwealth of Independent States (CIS) Inter-parliamentary Assembly which is currently comprisedof delegations of the parliaments of Armenia, Azerbai-jan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Rus-sian Federation, Tajikistan and Ukraine enacted on 14May 2009 the Model Statute Î ïðîòèâîäåéñòâèè ýêñòðå-

ìèçìó (On Countering Extremism).

The Model Statute develops the ideas of the nationalstatutes with the same or similar titles that wereadopted in 2002 in Russia (see: IRIS 2007-9:19/27),in 2003 in Moldova and Tajikistan, in 2005 in Kaza-khstan and Kyrgyzstan (see: IRIS 2005-8:17/26), andin 2007 in Belarus (see: IRIS 2007-3:11/14).

The Model Statute defines extremism as “an attemptat the foundations of the constitutional order andstate security, as well as violation of the rights, free-doms and lawful interests of a man and citizen, thattakes place as a result of denial of legal and (or)any other accepted standards and rules of social be-haviour” (Art. 1).

A list of what is defined as “extremist activity” in-cludes an activity of a mass media outlet to plan, pre-pare or execute actions that range from hate speechto portrayal of Nazi symbols, from threats of violenceagainst public officials and their relatives to the “pro-vision of informational services” for extremist actions.

The materials become extremist once the court’s de-cision on it enters into force. The decision is to betaken on the proposal of the procurator concerned oras part of a resolution of an administrative, civil orcriminal case where such demand was made (Art. 11and 12).

Article 13 of the Model Statute sets out a detailed pro-cedure for closing down an extremist media outlet. Itbegins with the registering authority (or the controlbody with the executive in the mass media sphere) orpublic prosecutor issuing to the founder and/or edito-rial office (editor-in-chief) a written warning with de-tails of the offences. If the offences can be remedied,a deadline is given. A warning can be contested incourt. If a warning is not contested or if its legalityis upheld, if no remedial action is taken by the givendeadline, or if within a certain time period (set by na-tional law) of being warned a media outlet is again en-gaging in extremism or spreading extremist content,then the media outlet is to be shut down in a proce-dure set by the national law.

Article 14 of the Model Statute stipulates that if theextremist materials are disseminated on-line, rele-

vant (to the above-described) measures are appliedto the communication networks taking into accountthe specificity of the Web.

• Î ïðîòèâîäåéñòâèè ýêñòðåìèçìó , Èíôîðìàöèîííûéáþëëåòåíü , 2009, No. 44 (Model Statute On Countering Extrem-ism, 32nd plenary meeting of the CIS Interparliamentary Assembly(Resolution No. 32-9 of 14 May 2009), Èíôîðìàöèîííûé áþë-ëåòåíü , 2009, No. 44)http://merlin.obs.coe.int/redirect.php?id=12703 RU

Andrei RichterMoscow Media Law and Policy Centre

Commonwealth of Independent States:Model Statute to Fight Terrorism

The Commonwealth of Independent States (CIS) In-terparliamentary Assembly which currently comprisesdelegations from the parliaments of Armenia, Azerbai-jan, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Rus-sian Federation, Tajikistan and Ukraine enacted on 3December 2009 the Model Statute Î ïðîòèâîäåéñòâèè

òåððîðèçìó (On Countering Terrorism).

In a way this Model Statute recommends the CISmember-states to adopt new anti-terrorism nationalstatutes as most of these countries’ legislation on ter-rorism is currently based on the Model Statute “Onthe fight against terrorism” of 8 December 1998 (seeIRIS 2005-1: 0/103). In its turn the new Model Statutedevelops the ideas of the recent Russian Federation’sStatute “On Counteraction to Terrorism” of 6 March2006 (see IRIS 2006-5: 19/33).

The Statute provides for the principles of counterac-tion against terrorism, organizational and legal mea-sures aiming at prevention and fighting against ter-rorism, and minimization or elimination of the after-math of terrorist activities. It also stipulates legalrules of conduct of antiterrorist operations includingthe formation and competence of operational mat-ters, admissible limitations of the rights and freedomsinside the territory of zone of counterterrorist opera-tion, rules of use of the Armed Forces.

The new law expands the boundaries of the notionof “terrorist activities”: it shall inter alia include pro-paganda of ideas of terrorism, dissemination of infor-mation calling for performance of terrorist activitiesas well as proving or justifying the necessity of suchperformance, including such actions with the use ofInternet (Art. 3).

The Statute includes a few provisions that affect themass media. Article 9 of the Model Statute stipulatesobligations of the mass media to assist counteractionto terrorism. Those include considering the priorityof the life and security of population over the free-dom of access to information and freedom to dissem-inate information when covering terrorist attacks and

IRIS 2010-9 7

http://merlin.obs.coe.int/cgi-bin/show_iris_link.php?language=en&iris_link=2007-9:19/27&id=12845






counter-terrorist activity. They also include an obliga-tion to immediately tip the law-enforcement agencieson preparations of a terrorist act if such informationwas obtained by the journalists in the course of theirprofessional activity, including an obligation to passall materials related to the information. Finally this Ar-ticle puts responsibility of the editors to restrain theirstaff from disseminating materials thatcall for, justify,or provoke terrorism and extremism, and to refrainfrom using hate speech in their media. Article 10 sug-gests introducing criminal liability of journalists andeditors as well as closure of the mass media outletsfor failing to act as stipulated in Article 9.

Within a counterterrorist operation zone certain lim-itations of information rights may by introduced,among them control over any forms of conveyance ofinformation including communication via telecommu-nication networks; temporary suspension of provisionof telecommunication services, e.g. mobile telephonecommunications. The head of operational matters ora person appointed by him defines the rules of con-duct of journalists in the counter-terrorist operationzone (Art. 20).

• Î ïðîòèâîäåéñòâèè òåððîðèçìó , Èíôîðìàöèîííûéáþëëåòåíü , 2010, No. 46. (Model Statute On Countering Terror-ism, 33rd plenary meeting of the CIS Interparliamentary Assembly(Resolution No. 33-18 of 3 December 2009), Èíôîðìàöèîííûéáþëëåòåíü , 2010, No. 46)http://merlin.obs.coe.int/redirect.php?id=12704 RU


Commonwealth of Independent States:Model Statute to Protect Children

The Commonwealth of Independent States (CIS) Inter-parliamentary Assembly which is currently comprisedof delegations from the parliaments of Armenia, Azer-baijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova,Russian Federation, Tajikistan and Ukraine enacted on3 December 2009 the Model Statute Î çàùèòå äåòåé îò

èíôîðìàöèè , ïðè÷èíÿþùåé âðåä èõ çäîðîâüþ è ðàçâè-

òèþ (On the Protection of Minors against InformationDetrimental to their Health and Development).

The Model Statute develops the ideas of the recentRussian Federation’s bill of the same name which wasadopted on 24 June 2009 by the State Duma (Rus-sian parliament) in its first reading (see IRIS 2009-8:18/29). On 11 June 2010 the bill was adopted in sec-ond reading and awaits the third and final reading dur-ing the current session of the parliament.

The preamble to the Model Statute speaks of the ne-cessity to take into account international instrumentsin particular the UN Convention on the Rights of theChild.

The Model Statute regulates products of the mass me-dia, printed materials, movies, TV and video films,phonograms, electronic and computer games, com-puter software, other audiovisual products on any ma-terial object, including those disseminated in publicperformances and on the information telecommuni-cation networks of general access (including Internetand mobile telephony) (Art. 3).

The Model Statute defines several categories of infor-mation banned for dissemination among minors (per-sons below 18 years of age). They range from pornog-raphy (also defined in the Model Statute) to “discred-iting the social institution of the family” (Art. 6).

The ratings of the “informational products” related tothe age of their consumers are recommended to be asfollows: universal (all ages), below 6 (years old), 6+,12+, 16+ and 18+ (Art. 7). The Model Statute intro-duces mandatory specific labelling of the products in-cluding TV programmes in accordance with their agerating (Art. 14 and 15). Airing of products labelled16+ shall be allowed on TV only from 9 p.m. to 7a.m., and those labelled 18+ from 11 p.m. to 6 a.m.(Art. 16).

Facilities, such as Internet cafes, providing Internetaccess to customers shall be obliged to use techni-cal and programming means to protect minors fromdetrimental information (Art. 17).

Producers and distributors shall be responsible formarking their products in accordance with the direc-tives of the new law. In particular it encourages themto solicit an expert opinion (that is an opinion of ex-perts as to what category the product belongs), spe-cific rules and legal consequences of which are alsoregulated in the Model Statute.

• Î çàùèòå äåòåé îò èíôîðìàöèè , ïðè÷èíÿþùåé âðåäèõ çäîðîâüþ è ðàçâèòèþ , Èíôîðìàöèîííûé áþëëåòåíü, 2010, No. 46 (Model Statute On the Protection of Minors against In-formation Detrimental to their Health and Development, 33rd plenarymeeting of the CIS Interparliamentary Assembly (Resolution No. 33-15 of 3 December 2009), Èíôîðìàöèîííûé áþëëåòåíü , 2010,No. 46)http://merlin.obs.coe.int/redirect.php?id=12705 RU


Commonwealth of Independent States:Model Code on Intellectual Property

The Commonwealth of Independent States (CIS) Inter-parliamentary Assembly which currently is comprisedof delegations from the parliaments of Armenia, Azer-baijan, Belarus, Kazakhstan, Kyrgyzstan, Moldova,Russian Federation, Tajikistan and Ukraine enacted on7 April 2010 Ìîäåëüíûé Êîäåêñ èíòåëëåêòóàëüíîé ñîá-

ñòâåííîñòè äëÿ ãîñóäàðñòâ - ó÷àñòíèêîâ ÑÍÃ (Model

8 IRIS 2010-9





Code on Intellectual Property for CIS Member-States).It consists of 13 chapters with total 107 articles.

In a way the new Model Code develops the notionsand ideas of Part 4 of the Russian Federation’s CivilCode of 18 December 2006 (see IRIS-Plus 2008-2). Al-though the Model Code does not explicitly say so it ap-parently replaces the Model Statute “On copyright andneighbouring rights” adopted by the Interparliamen-tary Assembly of CIS Member States on 18 November2005 (see IRIS 2006-1: 0/102).

Art. 24 specifies some of the objects (subject mat-ters) that shall be protected under authors’ rightsand neighbouring rights law. They are: works of sci-ence, literature and art; computer programmes, per-formances, audiovisual works, databases, photogra-phy works, text of translations (including subtitles andtexts for dubbing in different languages of audiovisualworks), composite works, illustrations, maps, otherworks. The legal protection extends only to the formof the works and therefore does not extend to ideas,concepts, principles, methods, processes, systems,means, discoveries, even if they are expressed, de-scribed, explained, illustrated in a work. In order toestablish and materialise authors’ rights no registra-tion or other formalities are required.

Objects that shall not be considered as objects of au-thor’s rights are the following: official documents ofstate bodies, including state technical standards aswell as official translations of such documents; statesymbols and signs; bank notes and coins; works offolklore; reports on facts of the day; telephone direc-tories, public transportation, television schedules andsimilar data banks that do not respond to the principleof originality (Art. 25).

While only natural persons are recognized as “pri-mary” subjects of the copyright, other natural per-sons, as well as legal entities may become such sub-jects by law, contract of testament (Art. 26).

• Ìîäåëüíûé Êîäåêñ èíòåëëåêòóàëüíîé ñîáñòâåííîñòèäëÿ ãîñóäàðñòâ - ó÷àñòíèêîâ ÑÍÃ ,Èíôîðìàöèîííûéáþëëåòåíü , 2010, No. 47 (Model Code on Intellectual Property forCIS Member-States, 34th plenary meeting of the CIS Interparliamen-tary Assembly (Resolution No. 34-6 of 7 April 2010), Èíôîðìàöè-îííûé áþëëåòåíü , 2010, No. 47)http://merlin.obs.coe.int/redirect.php?id=12706 RU


NATIONAL

AT-Austria

Telecommunications Act Draft Amendmenton Data Retention

On 26 July 2010, the Austrian Ministry of Trans-port, Innovation and Technology tabled a new draftamendment to the 2003 Telekommunikationsgesetz(Telecommunications Act - TKG), under which the dataretention obligations set out in Data Retention Direc-tive 2006/24/EC would be transposed into Austrianlaw.

The 16-page document takes into account almost 190comments received by the ministry after the bill waspublished in autumn 2009 (see IRIS 2010-2: 1/4). Themost significant changes are a provision on data pro-tection for persons required to keep professional se-crets and the extension of access for security servicesfor the purposes of warding off danger.

The newly added Article 93(5) is designed to ensurethat press secrets, protected under Article 31 of theMediengesetz (Media Act), remain protected, and thatother secrecy obligations, such as those of lawyers ordoctors, which justify the refusal to give evidence incriminal proceedings under Article 157 of the Straf-prozessordnung (Code of Criminal Procedure - StPO),cannot be circumvented by means of data retrieval.The bill authorises the creation of an independentbody which, using an automated system, can rendersuch information anonymous. The provision prohibitsaccess to the data of persons required to keep pro-fessional information confidential secret, unless theythemselves are the subject of the investigations.

In the new draft, the possibilities for accessing datahave been extended in two respects. Firstly, crimi-nal prosecution authorities will be able to access datarelating to an Internet connection - for a maximumof three months after the communication concerned- for the purposes of investigating and prosecutingnon-serious crimes. As a result, such data could par-ticularly be used in a legal action against copyrightinfringements on the Internet. Secondly, the accessgranted to security services will no longer, as origi-nally planned, remain limited to cases in which it isrequired to avert a concrete danger to life and limb.Rather, such services will now be allowed to accesstraffic, master and location data without a court or-der when there is a concrete danger to freedom andin order to ward off danger caused by a dangerousattack in accordance with Article 16 of the Sicherheit-spolizeigesetz (Police Act - SPG). This represents a sig-

IRIS 2010-9 9




nificant increase in access compared to the currentrules.

In several places, it is noticeable that the draft closelyfollows parallel developments in Germany. At var-ious points, footnotes refer to the decision of theGerman Bundesverfassungsgericht (Federal Constitu-tional Court), such as in relation to the practical impli-cations of the provisions on guaranteeing data secu-rity (see IRIS 2010-4: 1/12).

Even after the publication of this new draft, thetransposition process in Austria remains in its earlystages: for some provisions, a two-thirds majority isrequired, since they would require the Constitution tobe amended. Amendments to the StPO and SPG arealso necessary, partly in order to define what consti-tutes a "serious criminal offence" in the sense of theamended TKG. In addition, the provisions cannot en-ter into force until nine months after they are adopted,in order to allow enough time for operators to maketechnical adjustments and for amended decrees onthe reimbursement of costs to be adopted.

During the Austrian legislature’s efforts to bring thedata retention obligations into line with the Directiveat the second attempt - after the 2007 draft had hitobstacles - the EU member state was found guilty bythe ECJ after the Commission brought an action foran infringement of the Treaty. The Court ruled thatthe deadline for transposing the Directive had beenmissed. Even so, the Minister for Transport, Innova-tion and Technology does not want to present the billto Parliament until 15 September 2010, the day onwhich the Commission has announced that it will pub-lish its report on the evaluation of the Directive.

• Entwurf zur Änderung des TKG (Bill amending the TKG)http://merlin.obs.coe.int/redirect.php?id=12688 DE

• ECJ judgment (C-189/09) of 29 July 2010 DE FR

Sebastian SchwedaInstitute of European Media Law (EMR), Saarbrücken/

Brussels

BA-Bosnia And Herzegovina

Recent Developments in PBS Transition toDigital Broadcasting

On 14 July 2010 Vijece ministara Bosne i Hercegovine(the Council of Ministers of Bosnia and Herzegovina)adopted a Decision endorsing the Project of the dig-italisation of public broadcasting service microwavelinks. The Project is aimed at building a new, modernsystem for digital transmission of radio and TV pro-grammes and increasing network capacity for a bilat-eral and multilateral exchange of programmes among

the three public broadcasting services in Bosnia andHerzegovina (BiH), as well as programmes from theneighbouring countries.

In April 2010 Regulatorna agencija za komunikacije(the Communications Regulatory Agency) establishedterms and conditions for the utilisation of MultiplexA (MUX A) by public broadcasting services for terres-trial digital television broadcasting during the transi-tion period. Public broadcasting services in BiH arethus enabled to launch the process of transition todigital terrestrial broadcasting through shared build-ing and usage of synchronous assignments in the dig-ital allotments.

The process of transition of public broadcasting ser-vices in BiH to digital broadcasting is however notexpected to be without difficulties. There are con-cerns over the funding of the above mentioned Projectthreatening to delay the entire digitalisation process.

Issues that remain to be addressed also concern theunfinished reform of the public service broadcastingsystem. Zakon o javnom radiotelevizija kom sistemu(Law on the Public Broadcasting System) namely stip-ulates the creation of a Corporation of Public Broad-casting Services as an umbrella organisation overall three public broadcasting services in the coun-try. Once established, the Corporation would be incharge of, among other things, the joint operation ofthe transmission network and the introduction of newtechnologies including digital terrestrial broadcasting(see IRIS 2009-9: 7/8).

The national Strategy on the Digital Switchover in BiHsees public broadcasting services as leading stake-holders in the process of transition to digital broad-casting due to their traditionally central position in theBiH broadcasting market but also to their importantrole in providing universally available services whichcan help bridge the digital divide.

• Donesena Odluka o usvajanju Projekta digitalizacije (Press releaseon the Decision on the Endorsement of the Digitalisation Project)http://merlin.obs.coe.int/redirect.php?id=12666 BS• Decision on the manners of utilisation of Multiplex A (MUX A) by pub-lic broadcasting services for terrestrial digital television broadcastingin transition period, BiH Official Gazette No. 38/10 of 10 May 2010BS• Strategy on the digital switch-over within the frequency bands of174-230MHz and 470-862MHz in Bosnia and Herzegovinahttp://merlin.obs.coe.int/redirect.php?id=12668 EN

Maida CulahovicCommunications Regulatory Agency

10 IRIS 2010-9






BG-Bulgaria

Preparation of a New Bill for the ElectronicMedia

By order of the Bulgarian Prime Minister a WorkingGroup has been established in the Ministry for Culturewith the purpose of preparing a bill for the electronicmedia by 30 November 2010.

The Working Group includes media experts, represen-tatives of the Council of Ministers, of the Council forElectronic Media and the Communications RegulationCommission, of the Bulgarian National Radio and theBulgarian National Television, of the Ministry for Cul-ture and the Ministry for Finance and the IndependentProducers Association.

The Council of Ministers held a discussion about thefuture of the media regulation in Bulgaria, which tookplace on 29 and 30 July 2010.

The first day of the deliberations was devoted tothe debate on the following issues: basic principles;the scope of the act; co-regulation; commercial mes-sages; regulatory body; licensing and registration andmedia pluralism. The ideas about a possible merge ofthe two regulators in the media market at present -the Council for Electronic Media and the Communica-tions Regulation Commission; the process of licensingand registration of media providers and how to securethe pluralism in the sector, were also under discus-sion.

On the second day of the deliberations on the amend-ments to the media law several further issues were -partly of an emotional nature - debated: The questionwhether the Bulgarian National Television and the Bul-garian National Radio should merge; whether there isa necessity for a more accurate definition of “socialmedia” and of more clear rules on its functioning; thestatutes, structures and governance of the BulgarianNational Television and the Bulgarian National Radioand how the State media will be financed. The ideasof a merge were opposed by both the representativesof the National Radio and of the National Television.

Rayna NikolovaNew Bulgarian University

Proofs for Granted Copyrights and RelatedRights

On 24 August 2010 the six months term expired,before which, according to Article 125 of the Çàêîí

çà ðàäèîòî è òåëåâèçèÿòà (Radio and Television Act -Z440442), all enterprises that transmit radio or TV pro-grammes in their electronic webs have to submit tothe Council for Electronic Media a list of all radio andTV programmes that have been transmitted and thedocuments proving the granting of all copyrights andrelated rights on each programme and on all elementsof the programme.

This obligation is in force since 2001 but in 2009for the first time the Bulgarian legislator establishedsome sanctions for those who do not fulfil it accordingto Article 126a, paragraph 5 Z440442. The sanctionsare financial and vary from EUR 1,500 to 3,500 fornot submitting any information within the set term orfor presenting incorrect or insufficient information. Incase of illegal transmission of radio or TV programmeswithout the consent of the holders of copyrights orrelated rights on the programme, on the cinemato-graphic or audiovisual works or on the music, whichare used in the programme, the sanctions are be-tween EUR 3,500 and 15,000.

In February 2010 when the previous 6 months termfinished, the examination of the submitted documentsin the Council for Electronic Media showed that lessthan half of all 526 enterprises, that have declaredto the Committee for the Regulation of Communica-tions that they would transmit programmes in theirwebs, have presented any information under Article125v Z440442. The Council punished few of those thatdid not submit any information. The enterprises ap-pealed and now most of the cases are pending beforethe court. On most of the cases the Council decidedthat those are of minor importance and only remindedthe enterprises of their obligations to settle copyrightsand related rights with the rightholders and to sub-mit the required documents under Article 125 Z440442.The councillors hoped that this policy is strong enoughto make the enterprises follow the law.

The documents submitted up to 24 August 2010 arestill not checked. However, some of the Bulgarian col-lective management societies state that they have al-ready received many requests from enterprises thattransmit radio or TV programmes for signing contractsto grant copyrights and related rights.

• ÑÚÎÁÙÅÍÈÅ - ÎÒÍÎÑÍÎ ÏÐÈËÀÃÀÍÅ ÍÀ ×ËÅÍ4 È ×ËÅÍ 5476402 Äèðåêòèâà 89/522/425430436, èçìåíåíà ñÄèðåêòèâà 97/36/425436 èÄèðåêòèâà 2007/65/425436 íà ÅÏ èíà Ñúâåòà –Äèðåêòèâà çà àóäèîâèçóàëíè ìåäèéíè óñëóãè(Press Release of the Council for Electronic Media, 6 July 2010)http://merlin.obs.coe.int/redirect.php?id=12707 BG

Ofelia Kirkorian-TsonkovaCouncil for Electronic Media & Sofia University ”St.

Kliment Ohridsky”

IRIS 2010-9 11


BY-Belarus

Regulation of the National Segment of Inter-net Enforced

In the period from February to July 2010 the Presidentand the Council of Ministers (the government) of theRepublic of Belarus adopted a set of acts that put inplace a sophisticated system of regulation of the na-tional segment of Internet. All of these entered intoforce in July 2010.

In particular they have introduced the necessity for allpublic authorities, State-owned and state-run entitiesto have official websites with regularly-renewed infor-mation about their activities.

They establish a unified system of voluntary Stateregistration of Internet resources in the national seg-ment of Belarus (.by) as stipulated in the statute ofthe Republic of Belarus “On Information, Informatisa-tion and Protection of Information” (see IRIS 2009-1:9/12). State registration is obligatory for all websites ifthey are used for commercial purposes (for example,Internet shops).

“In the interests of the security of citizens and thestate” Belarusian Internet-providers are to identify allend-users of their services, keep and store for theperiod of 1 year records of such users and servicesprovided to them. That rule involves identification ofclients of Internet cafes and clubs. The records in-clude files with all IP-addresses and domain namesof the resources that were connected with in a par-ticular session. They are to be provided to the law-enforcement agencies, as well as tax authorities andthe governmental Committee of State Control. In ef-fect these provisions ban the possibility to access In-ternet with the help of pre-paid cards and/or withouta state-registered password (including free Wi-Fi ser-vices).

The providers are not liable for the contents of theinformation in Internet. On demand of a user of theInternet-services the provider must block access ofthis particular user to Internet-resources that containpornography, propaganda of violence and cruelty andother illegal actions. Illegal information will be auto-matically blocked for the users located in State-runfacilities (including schools and colleges) and culturalestablishments (e.g., libraries and information cen-tres). In the latter case the decisions on what infor-mation is deemed to be illegal are made by the pros-ecutor’s office, Analytical Centre at the President ofBelarus, the Committee of State Control or any othernational governmental agency.

• Î ìåðàõ ïî ñîâåðøåíñòâîâàíèþ èñïîëüçîâàíèÿ íàöèî-íàëüíîãî ñåãìåíòà ñåòè Èíòåðíåò (Decree of the President ofthe Republic of Belarus No. 60 of 1 February 2010 “On measures toimprove the use the national segment of Internet”)http://merlin.obs.coe.int/redirect.php?id=12657 RU• O461 óòâåðæäåíèè Ïîëîæåíèÿ î ïîðÿäêå âçàèìîäåéñòâèÿîïåðàòîðîâ ýëåêòðîñâÿçè ñ îðãàíàìè , îñóùåñòâëÿþùèìèîïåðàòèâíî - ðîçûñêíóþ äåÿòåëüíîñòü (Decree of the Presi-dent of the Republic of Belarus No. 129 of 3 March 2010 “On approvalof the Procedures for interoperation between telecommunications op-erators and investigation agencies”)http://merlin.obs.coe.int/redirect.php?id=12658 RU• Î íåêîòîðûõ âîïðîñàõ ñîâåðøåíñòâîâàíèÿ èñïîëüçîâà-íèÿ íàöèîíàëüíîãî ñåãìåíòà ãëîáàëüíîé êîìïüþòåðíîéñåòè Èíòåðíåò » (Ordnance of the Council of Ministers of the Re-public of Belarus No. 644 of 29 April 2010 “On certain issues to im-prove the use of the national segment of the global computer networkInternet”)http://merlin.obs.coe.int/redirect.php?id=12659 RU• Î íåêîòîðûõ âîïðîñàõ èíòåðíåò - ñàéòîâ ãîñóäàðñòâåí-íûõ îðãàíîâ è îðãàíèçàöèé è ïðèçíàíèè óòðàòèâøèì ñè-ëó ïîñòàíîâëåíèÿ Ñîâåòà Ìèíèñòðîâ Ðåñïóáëèêè Áåëà-ðóñü îò 11 ôåâðàëÿ 2006 ã . � 192 (Ordnance of the Councilof Ministers of the Republic of Belarus No. 645 of 29 April 2010 “Oncertain issues of the Internet-sites of the state bodies and organiza-tions and on declaring void Ordnance of the Council of Ministers ofthe Republic of Belarus No. 192 of 11 February 2006”)http://merlin.obs.coe.int/redirect.php?id=12659 RU• Î âíåñåíèè èçìåíåíèé è äîïîëíåíèé â Ïðàâèëà îêàçà-íèÿ óñëóã ýëåêòðîñâÿçè (Ordnance of the Council of Ministers ofthe Republic of Belarus No. 646 of 29 April 2010 “On amendmentsand addenda to the Rules of providing telecommunication services”)http://merlin.obs.coe.int/redirect.php?id=12659 RU•Î ðåãèñòðàöèè èíòåðíåò - ìàãàçèíîâ â Òîðãîâîì ðååñòðåÐåñïóáëèêè Áåëàðóñü , ìåõàíèçìå êîíòðîëÿ çà èõ ôóíê-öèîíèðîâàíèåì è âíåñåíèè äîïîëíåíèé è èçìåíåíèé âíåêîòîðûå ïîñòàíîâëåíèÿ Ñîâåòà Ìèíèñòðîâ Ðåñïóáëè-êè Áåëàðóñü (Ordnance of the Council of Ministers of the Republicof Belarus No. 649 of 29 April 2010 “On registration of Internet-shopsin the Trade Register of the Republic of Belarus, control mechanismsover their activity and on amendments and addenda to certain ord-nances of the Council of Ministers of the Republic of Belarus”)http://merlin.obs.coe.int/redirect.php?id=12659 RU• Îá óòâåðæäåíèè ïîëîæåíèÿ î ïîðÿäêå îãðàíè÷åíèÿ äî-ñòóïà ïîëüçîâàòåëåé èíòåðíåò - óñëóã ê èíôîðìàöèè , çà-ïðåùåííîé ê ðàñïðîñòðàíåíèþ â ñîîòâåòñòâèè ñ çàêîíî-äàòåëüíûìè àêòàìè (Ordnance of the Analytical Centre at thePresident of the Republic of Belarus and of the Ministry of Communi-cations and Informatics of the Republic of Belarus No. 4/11 of 29 June2010 “On approval of the Procedures for restrictions of access of theusers of Internet-services to information banned for dissemination inaccordance with law”)http://merlin.obs.coe.int/redirect.php?id=12660 RU• Îá óòâåðæäåíèè ïåðå÷íÿ àäìèíèñòðàòèâíûõ ïðîöåäóð, îñóùåñòâëÿåìûõ Ìèíèñòåðñòâîì ñâÿçè è èíôîðìàòèçà-öèè è ïîä÷èíåííûìè åìó ãîñóäàðñòâåííûìè îðãàíèçàöè-ÿìè â îòíîøåíèè þðèäè÷åñêèõ ëèö è èíäèâèäóàëüíûõïðåäïðèíèìàòåëåé , âíåñåíèè èçìåíåíèÿ è äîïîëíåíèé âîòäåëüíûå ïîñòàíîâëåíèÿ Ñîâåòà Ìèíèñòðîâ ÐåñïóáëèêèÁåëàðóñü è ïðèçíàíèè óòðàòèâøèìè ñèëó íåêîòîðûõ ïî-ñòàíîâëåíèé è îòäåëüíûõ ïîëîæåíèé ïîñòàíîâëåíèé Ïðà-âèòåëüñòâà Ðåñïóáëèêè Áåëàðóñü (Ordnance of the Council ofMinisters of the Republic of Belarus No. 1001 of 2 July 2010 “Onapproval of the list of administrative procedures performed by theMinistry of Communications and Informatics and affiliated state or-ganizations in relation to legal entities and private entrepreneurs,on amendments and addenda to certain ordnances of the Councilof Ministers of the Republic of Belarus and on declaring void certainordnances and provisions of ordnances of the Council of Ministers ofthe Republic of Belarus”)http://merlin.obs.coe.int/redirect.php?id=12702 RU


12 IRIS 2010-9











CY-Cyprus

Commercial Digital Platform Awarded

Velister Ltd, a consortium of broadcasters and tele-vision services companies, won the competition forthe commercial digital platform that will providethe infrastructure for digital television in the Repub-lic of Cyprus (two platforms will be created, withthe first awarded to the public service broadcasterCyprus Broadcasting Corporation, Ραδιοφωνικό ΄Ιδρυμα332´305300301377305, RIK). The bidding process for theselection was completed in 17 rounds, on 23 Au-gust 2010, with Velister Ltd’s bid amounting to EUR10,000,000; next highest bid by LRG Ltd was EUR9,000,000 and the third, by CYTA, the public (service)telecommunications company, EUR 4,100,000.

According to an official announcement dated 26 Au-gust 2010 Velister Ltd, which fulfilled the criteria forparticipating in the selection process, was named pro-visional winner of the auction because it made thehighest bid. For the company to be declared final win-ner it must submit within 30 days from the end of theauction the documents and warrants required and de-posit the sum of the bid according to the rules of thecompetition.

Velister Ltd is a consortium of the six commercialbroadcasters (Antenna, Sigma, Mega, Plus TV andsubscription channels LTV and Alpha) and two tele-vision services and Internet providers, Primetel andCablenet.

It is noticeable that the reserve price for the auctionwas set at EUR 850,000, which means that the finalbid is almost twelve times higher. Some observersconsider the sum of EUR 10,000,000, that the winnerhas to pay, as too high for the market of Cyprus andexpressed some concerns as to the smooth operationof the digital television project.

The course to the award of the digital platform wasnot without problems. Initially, the House of Repre-sentatives attempted to disallow by law participationof CYTA in the auction. The President sent back tothe House the law for reconsideration and on the in-sistence of the House on their vote it referred the lawto the Supreme Court for decision (see IRIS 2010-6:1/15).

On another development, the auction process wassuspended after the thirteenth round on 2 July 2010,following allegations for double-bidding by contes-tants. The process resumed in late August after thecompetent authorities rejected the objections raisedby the contestants.

• Πλειστηριασμός για τη Χορήγηση Εξουσιοδότησης Δικτύου ΕπίγειαςΨηφιακής Τηλεόρασης - Προσωρινός Νικητής , 26/08/2010 (Auctionfor the Issue of Authorisation of a DTT Network - Temporary Winner)http://merlin.obs.coe.int/redirect.php?id=12670 EL

Christophoros ChristophorouExpert in Media and Elections

DE-Germany

Temporary Injunction against Save.TV Tech-nical Service Company

According to a press release issued by the onlinevideo recording service Save.TV, on 28 July 2010 theLandgericht München (Munich District Court - LG), atthe request of television broadcaster RTL, granted atemporary injunction against one of its service compa-nies, obliging it to cease providing technical supportso that the RTL channel could no longer be recorded.The reasons for the court’s decision were not re-ported.

The unnamed technical service company is reportedto have announced immediately that it would take le-gal action against the temporary injunction.

The injunction clearly represents a further step inthe broadcaster’s lengthy efforts to prevent Save.TVand similar providers from making recordings ofcopyright-protected content available to the public(see IRIS 2009-7: 7/9 on the dispute between RTLand Shift TV). The action against Save.TV’s servicecompany is closely related to a legal dispute betweenSave.TV itself and RTL, which is currently pendingbefore the Oberlandesgericht Dresden (Dresden Ap-peal Court - OLG) after the Bundesgerichtshof (Fed-eral Supreme Court) quashed the OLG’s appeal rulingin April 2009 (case no. I ZR 175/07) and referred thecase back to it for review.

The OLG Dresden had upheld the broadcaster’s com-plaint and ruled that its copyright-related right as en-shrined in Article 87(1) of the Urheberrechtsgesetz(Copyright Act - UrhG) had been infringed due tounauthorised reproduction. The OLG Dresden had re-jected the defendant’s argument that the recordingswere made for private use in accordance with Article53(1) UrhG.

• Mitteilung von Save.TV (Save.TV press release)http://merlin.obs.coe.int/redirect.php?id=12690 DE

Peter MatznellerInstitute of European Media Law (EMR), Saarbrücken/

Brussels

IRIS 2010-9 13






Court Refuses to Open Main Proceedings on"Black Surfing"

In a decision of 3 August 2010, the Amtsgericht Wup-pertal (Wuppertal District Court - AG) refused to openthe main proceedings in a case concerning the unau-thorised use of an unencrypted wireless network onthe grounds of insufficient suspicion.

On two days in August 2008, the defendant hadlogged onto a third-party (unencrypted) wireless net-work without permission and without paying a fee.

In the AG’s opinion, this did not constitute either theoffence of unauthorised tapping under Article 89(1)(1)of the Telekommunikationsgesetz (Telecommunica-tions Act - TKG) or unauthorised retrieval or acquisi-tion of personal data under Articles 44 and 43(2)(3) ofthe Bundesdatenschutzgesetz (Federal Data Protec-tion Act - BDSG). The AG therefore revised the opin-ion it had expressed in 2007 and, at the same time,opposed the view of the AG Zeven (Zeven DistrictCourt), which considered the unauthorised use of aWLAN to constitute unauthorised tapping under Arti-cles 148 and 89 TKG (see IRIS 2010-3: 1/16).

The AG did not consider this to be a criminal act underArticle 89(1)(1) TKG because the defendant’s conductdid not represent "tapping" in the sense of the provi-sion. Tapping should be understood as directly listen-ing to something or making it audible for other peo-ple, as well as switching on a recording device. In anycase, this required there to be some form of commu-nication between other people, to which the perpetra-tor listened in as a third party. There must be a de-liberate, purposeful receipt of third-party messages,which are deliberately and purposefully listened to bythe culprit, in order for tapping to have taken place.In this case, the defendant did not deliberately andpurposefully receive messages. By logging on to theunencrypted network, he had been able to share theuse of the Internet connection. The necessary receiptof the IP address did not constitute tapping. The con-fidentiality of third-party communication was not af-fected by this act. Also, the defendant had also notlistened in on a third-party exchange of data, sincethe IP address had been allocated to the defendant asthe sole user of the Internet connection.

A punishable offence under Articles 44(1) and43(2)(3) BDSG was ruled out because the defendanthad not accessed or obtained any personal data. Per-sonal data was any information on personal and fac-tual conditions that was assigned to a natural personand not accessible to the public. However, IP data wasnot personal data in the sense of Article 3(1) BDSG,since the IP address was freely allocated to whichevercomputer was using the network. When it was re-ceived by the defendant, this data was therefore in-tended for him as the user.

Nor had a criminal offence been committed under Ar-ticle 202b of the Strafgesetzbuch (Criminal Code) (in-terception of data) because the IP data received hadbeen intended for the defendant as the user of thenetwork.

• Beschluss des AG Wuppertal (Az. 26 Ds-10 Js 1977/08-282/08) (De-cision of the Wuppertal District Court (case no. 26 Ds-10 Js 1977/08-282/08))http://merlin.obs.coe.int/redirect.php?id=12691 DE

Christian M. BronInstitute of European Media Law (EMR), Saarbrücken/

Brussels

GEMA (Provisionally) Loses Legal Disputewith YouTube

In a decision of 27 August 2010 (case no. 310O 197/10), the Landgericht Hamburg (Hamburg Dis-trict Court - LG) rejected an application by theGesellschaft für musikalische Aufführungs- und mech-anische Vervielfältigungsrechte (society for musicalperforming and mechanical reproduction rights -GEMA) and other collecting societies for a temporaryinjunction against YouTube.

The legal dispute concerned videos uploaded by usersonto the YouTube portal, containing pieces of music towhich the applicants held the rights but for the useof which YouTube paid no compensation. A licensingagreement between the GEMA and YouTube had ex-pired on 31 March 2009 and had not been reneweddue to a failure to agree on compensation obligationsand methods. As a result, the GEMA, together withother European collecting societies, ended up takinglegal action. The applicants requested an injunctionpreventing YouTube from making the disputed titlesavailable to the public.

The LG Hamburg disputed the urgency of the appli-cation and therefore rejected it, suggesting that theapplicants open principal proceedings if necessary orreach an out of court agreement. It ruled that the ap-plicants had known for a long time "that music com-positions were used on the YouTube service". Thisfact, together with the long period of time they hadspent preparing the injunction application itself, con-tradicted the notion that the applicants had only be-come aware a few weeks earlier that their rights werebeing infringed. The argument regarding the neces-sary urgency was not therefore sufficiently plausible.

The LG Hamburg therefore did not consider the ac-tual question of whether the applicants were entitledto an injunction against the video portal under copy-right law. However, if principal proceedings were to beopened, there was good reason to believe that such aclaim would be granted. In particular with regard to

14 IRIS 2010-9



preventive measures that would stop further upload-ing of blocked content, it seemed "that the respon-dent had failed to fulfil reasonable examination dutiesor take measures to prevent further rights infringe-ments".

• Pressemitteilung des LG Hamburg vom 27. August 2010 (LG Ham-burg press release of 27 August 2010)http://merlin.obs.coe.int/redirect.php?id=12696 DE

Anne Yliniva-HoffmannInstitute of European Media Law (EMR), Saarbrücken/

Brussels

OLG München Upholds Cameraman’s Claim

According to media reports, the OberlandesgerichtMünchen (Munich Appeals Court - OLG) has up-held the claim of a cameraman who worked on thefilm "Das Boot" to a reasonable additional share inthe revenue generated through exploitation of thefilm, thereby confirming the ruling of the LandgerichtMünchen I (Munich District Court I).

Agreeing with the lower instance court (see IRIS 2009-6: 8/12), the OLG found a "noticeable disproportion"in the sense of Article 32a of the Urheberrechtsge-setz (Copyright Act) between the remuneration paidto the cameraman when the film was produced in1981 and the amount of revenue generated since thattime, during which the film had become a global suc-cess. The cameraman had asserted a claim againstthe producer, the broadcaster that financed the filmand a video company.

According to the reports, the defendants have ap-pealed to the Bundesgerichtshof (Federal SupremeCourt) against this OLG ruling.


Brussels

New Developments in Cinema Digitisation

At the end of August 2010, the Filmförderung Ham-burg Schleswig-Holstein (Hamburg Schleswig-Holsteinfilm support office - FFHSH) launched a special pro-gramme for the promotion of cinema digitisation.

Help is available for commercial art cinemas in Ham-burg with a maximum of six screens and a high-qualityfilm programme, which can apply for support for therefitting of up to three screens per calendar year. Thefunds can be used to purchase and install the neces-sary equipment and projection technology and take

the form of an investment subsidy of up to 25% of thecosts, with an upper limit of EUR 18,000 per screen.The funds are provided as a de minimis amount andmay be granted in addition to other forms of publicaid, such as subsidies from the Filmförderungsanstalt(Film Support Office). This support programme willrun until 2014.

Also at the end of August 2010, the Beauftragte derBundesregierung für Kultur und Medien (Federal Gov-ernment Commissioner for Culture and Media - BKM)and the Verband der Filmverleiher (Association of FilmDistributors - VdF) reached an agreement on the in-volvement of the film distribution industry in the fi-nancing of cinema digitisation. Under this agreement,film distributors will also support so-called Kriterienk-inos (criteria cinemas) with their technical refitting,such as through direct financial subsidies for the pur-chase of the necessary technical equipment.

• Sonderprogramm Digitalisierung der FFHSH (FFHSH special digiti-sation programme)http://merlin.obs.coe.int/redirect.php?id=12694 DE• Mitteilung des BKM vom 25. August 2010 (BKM press release of 25August 2010)http://merlin.obs.coe.int/redirect.php?id=12695 DE


Brussels

Government Adopts Bill Strengthening PressFreedom

On 25 August 2010, the Federal Government adoptedthe bill strengthening the freedom of the press in crim-inal law and criminal procedure law (PrStG). The bill isbased on a draft tabled by the Bundesministerium derJustiz (Federal Ministry of Justice - BMJ) on 4 April 2010(see IRIS 2010-6: 1/20).

The bill will strengthen the freedom of the pressby offering better protection to journalists and theirsources, in order to ensure that the media can fulfiltheir oversight function vis-à-vis State activities. Inthe sense of the provisions, journalists are "peoplewho, in a professional capacity, participate or haveparticipated in the preparation, production or distri-bution of printed publications, radio programmes, filmreports or information and communication servicesused for educational or opinion-forming purposes"(Art. 53(1)(5) of the Strafprozessordnung - Code ofCriminal Procedure - StPO).

In accordance with the BMJ’s proposal, a new para-graph has been added to Article 353b of the Strafge-setzbuch (Criminal Code - StGB; breaches of officialsecrecy and special obligations of secrecy), underwhich journalists cannot be punished for aiding and

IRIS 2010-9 15







abetting breaches of official secrecy if they merely re-ceive, analyse or publish the secret or the informationthat is supposed to be kept secret.

In addition, an amendment to Article 97(5)(2) StPO(concerning items that cannot be confiscated) stipu-lates that journalists in the sense of Article 53(1)(1)(5)StPO may only have their property confiscated if theyare seriously suspected of involvement in the offence.Previously, any degree of suspicion was sufficient.

The need for reform in this area arose following theso-called "Cicero ruling" of the Bundesverfassungs-gericht (Federal Constitutional Court) of 27 February2007 (see IRIS 2007-4: 8/11). In that case, the maga-zine "Cicero" had cited confidential documents of theBundeskriminalamt (Federal Criminal Police Office),following which the responsible public prosecutor’s of-fice had launched an investigation, searched the mag-azine’s editorial offices and confiscated documents.

• Gesetzentwurf der Bundesregierung - Gesetz zur Stärkung derPressefreiheit im Straf- und Strafprozessrecht (PrStG) (Federal Gov-ernment Bill - Act strengthening the freedom of the press in criminallaw and criminal procedure law (PrStG).)http://merlin.obs.coe.int/redirect.php?id=12693 DE


Brussels

Federal Network Agency Wants to DelegateCable Regulation to Cartel Authority

The Bundesnetzagentur (Federal Network Agency -BNetzA) announced on 3 September 2010 that it hadsent a draft market definition, market analysis andregulatory measures concerning the wholesale mar-ket for broadcasting transmission services to the Eu-ropean Commission for comment. In the proposal, theAgency, which is responsible, inter alia, for regulat-ing national telecommunications markets in Germany,suggests that the signal delivery and input marketsfor cable networks should be removed from sector-specific regulation and placed under the general com-petition supervision carried out by the Bundeskartel-lamt (Federal Cartel Office). The latter has alreadyagreed to the proposal. The Commission now has onemonth to give its opinion on the proposals.

The "wholesale market for the provision of broadcast-ing transmission services to deliver broadcast contentto end users", which is still identified as market no.18 in the 2003 Commission Recommendation on mar-kets (see IRIS 2003-3: 7/9), was omitted from the re-vised recommendation of 2007. The Commission didnot consider that this market still needed specific reg-ulation and therefore recommended to the memberstates that it should no longer be susceptible to exante regulation. National regulatory authorities can

still maintain sector-specific regulation in this field,but must provide reasons for doing so. The recom-mendation lays down three criteria (contained in Arti-cle 10(2)(1) of the German Telecommunications Act),which must be fulfilled cumulatively in order to justifycontinued ex ante regulation: firstly, there must be"high and non-transitory barriers to entry"; secondly,the market must not tend towards effective competi-tion within the relevant time horizon; and thirdly, com-petition law alone should not adequately address themarket failure concerned.

Before the BNetzA proposals were submitted to theCommission, a consultation paper was published, onwhich interested parties were given until 21 May 2010to comment. In this document, the Agency had firstlyidentified three market segments: as well as the twomarkets for the input of broadcast signals into thebroadband cable network and for the delivery of sig-nals by large cable network operators to home net-work operators, the investigation had included themarket for the provision of terrestrial broadcasting fa-cilities for the transmission of analogue VHF radio sig-nals. In regard to the cable markets, the BNetzA con-cluded that the first two of the three aforementionedcriteria for ex ante regulation were met. However, itthought that general competition law was sufficientto effectively address the existing market failure. Onthe other hand, it decided that continued ex ante reg-ulation was justified in the market for the transmis-sion of analogue VHF radio signals. Due to its vir-tual monopoly of this market, Media Broadcast, as theowner of more or less all terrestrial VHF transmissionfacilities, would otherwise be unable to achieve com-petitive prices.

• Konsultationspapier der BNetzA vom 21. April 2010 und die Ergeb-nisse des Anhörungsverfahrens (BNetzA consultation paper of 21April 2010 and results of the hearing)http://merlin.obs.coe.int/redirect.php?id=12692 DE


Brussels

FR-France

HADOPI gets moving!

Slowly but surely, with the publication of the imple-menting decrees for the “HADOPI I” and “HADOPI II”Acts (see IRIS 2010-1:1/23 and IRIS 2009-7:12/20),the High Authority (“HADOPI”) is getting into work-ing order, despite the efforts of its detractors. The“HADOPI II” Act of 28 October 2009 gave the criminalcourts the task of ordering the suspension of Internetaccess for an Internet user who fails to comply withthe obligation to ensure that access was not used for

16 IRIS 2010-9







the illegal circulation of protected works. This is in ad-dition to the offence of “specific negligence”, whichattracts a penalty in the 5th category, the principleof which is laid down by Article L. 335-7 of the Intel-lectual Property Code resulting from the HADOPI Act,the definition of which was nevertheless left to theregulatory authority. The Decree of 25 June 2010 hasnow defined the offence, which is constituted whenan Internet access holder has not set up a securitysystem to prevent unlawful downloading. The negli-gence is also deemed specific if it has failed to imple-ment the system. According to the text, however, theoffence can only be constituted if the access holderhas received a recommendation from the HADOPI en-joining him/her to secure his/her Internet access andif, within a period of one year following this recom-mendation, his/her Internet access is used again tounlawfully download or circulate protected works.

At the same time, Decree No. 2010-872 of 26 July2010 has laid down the rules applicable to the pro-cedure and the investigation of cases before theHADOPI’s panel and commission for the protection ofrights. Cases may be referred to the HADOPI by theregularly constituted professional defence bodies, thesocieties for receiving and redistributing royalties, andthe CNC. After hearing the Internet subscriber whois being prosecuted for having downloaded protectedworks without authorisation, the commission decides,by a vote taken with a majority of at least two, thatthe facts of the case are likely to constitute specificnegligence or counterfeiting, and sends its delibera-tion on to the office of the Public Prosecutor at theappropriate regional court. It informs the commissionof its follow-up to the referral. If a penalty is imposed,the commission informs the access provider that thesubscriber is to be suspended, and in turn the accessprovider informs the commission of the date on whichit has suspended access.

The access provider FDN applied to the Conseil d’Etatunder the urgent procedure for implementation of theDecree of 26 July to be suspended, but the Conseild’Etat turned down the application on 14 September2010, on the grounds that none of the arguments putforward were such as to cast serious doubt on the le-gality of the Decree at the present stage. The HADOPIis thus well and truly in working order, even thoughan application has been made to the Conseil d’Etatfor another decree, adopted on 5 March 2010 (on theprocessing of personal data necessary for implement-ing the recommendation procedure), to be cancelled.Theoretically, it should therefore be possible to startsending out the first warning e-mails 04046

• Décret n◦2010-695 du 25 juin 2010 instituant une contravention denégligence caractérisée protégeant la propriété littéraire et artistiquesur Internet, JO du 26 juin 2010 (Decree No. 2010-695 of 25 June2010 instituting the offence of specific negligence in the protectionof literary and artistic property on the Internet, gazetted (publishedin the Journal Officiel) on 26 June 2010)http://merlin.obs.coe.int/redirect.php?id=12709 FR

• Décret n◦2010-872 du 26 juillet 2010 relatif à la procédure devantla commission de protection des droits de la Haute autorité pour ladiffusion des œuvres et la protection des droits sur Internet, JO du 27juillet 2010 (Decree No. 2010-872 of 26 July 2010 on the proceedingsbefore the commission for the protection of rights of the High Author-ity for the Broadcasting of Works and the Protection of Rights on theInternet (‘HADOPI’), gazetted (published in the Journal Officiel) on 27July 2010)http://merlin.obs.coe.int/redirect.php?id=12710 FR• Conseil d’Etat (ord. réf.), 14 septembre 2010, Société French DataNetwork (Conseil d’Etat (urgent procedure), 14 September 2010, thecompany French Data Network) FR

Amélie BlocmanLégipresse

Abolition of Advertising on Public-sectorChannels Suspended

By imposing a total ban on advertising on public-sector channels, the Act of 5 March 2009 constitutednothing short of a revolution on the French audiovisualscene. Originally, the ban was supposed to be imple-mented in two stages - applying to the period between8 p.m. and 6 a.m. starting on 5 January 2009, thena total ban starting on 30 November 2011, the dateof the total switch from analog to digital television.As compensation, a new tax was introduced on adver-tising broadcast by the private-sector channels, andanother new tax on electronic communication oper-ators. Nevertheless, sponsored broadcasts remainedpossible on public-sector channels.

An interim report is scheduled for May 2011 on thepossibility of abolishing advertising during the day,between 6 a.m. and 8 p.m. The Government seemsnot to want to wait that long, however, or to waitfor the conclusions of the report being prepared onthe subject by the National Assembly’s cultural affairscommittee. After considering a number of hypothe-ses, the committee finally reached a decision and an-nounced on 17 September 2010, through Frédéric Mit-terrand, Minister for Culture, the introduction of a two-year moratorium, until January 2014, for the aboli-tion of day-time advertising on public-service televi-sion. Total abolition will therefore not take place atthe end of 2011 as provided for in the Act, for purelybudgetary reasons - it will take between 300 and EUR400 million to compensate for the total abolition ofadvertising.

The private-sector channels, headed by TF1 and M6,were quick to react to the news; they are up in armsabout what they consider to be an overturning oftheir economic balance. Calling for fair competition,the heads of these channels have therefore called forcompensation, more particularly in the form of a re-duction in their tax burden since the abolition of ad-vertising on the public-sector group’s channels. TF1and M6 are also calling for a stop to sponsoring, whichprovides France Télévisions with EUR 72 million per

IRIS 2010-9 17



year, after 8 p.m., and for the duration of advertis-ing spots immediately before 8 p.m. to be limitedto 6 minutes per hour, compared with 8 minutes atpresent.

At the same time, on 21 September, the NationalAssembly’s cultural affairs committee presented theconclusions of the working party “on advertising andthe commercial activities of public-sector television”.The report draws up an initial assessment of the ap-plication of the reform and draws conclusions for thefuture. In this respect, the parliamentarians recom-mend maintaining advertising before 8 p.m. The abo-lition of day-time advertising does not raise the sameeditorial issues as advertising during peak-time view-ing. The cost to the State’s budget would also appearto be higher than previously forecast. Lastly, therewas the risk that the total abolition of advertising onFrance Télévisions would result in an overall loss ofadvertising income for the audiovisual industries as awhole.

Abolishing advertising during evening viewing had infact shown that the majority of the advertising of-fer cannot be substituted because of the specific na-ture of the audience for the public-service channels.The working party therefore recommends abolishingthe legislative provision corresponding to the secondstage provided for in the Act of 5 March 2009. Atthe very least, if the moratorium solution were to beadopted, it should logically correspond to the term ofoffice of the new chairman of France Télévisions andto the duration of the contract of ways and meanshe wishes to conclude with the State, i.e., five years.The committee’s recommendations include maintain-ing the exemptions to abolishing advertising after8 p.m., although the parliamentarians will take carethat amendments do not distort the spirit of the re-form. The level of the tax imposed on the private-sector channels is 0.5%.


CSA Study on the Circulation of AudiovisualWorks

The Conseil Supérieur de l’Audiovisuel (audiovisualregulatory body - CSA) has carried out a new studywith a view to improving the circulation of audiovi-sual works originally in the French language. This isan issue it looked at in 2006, but competition has in-creased since then with the arrival of the DTV chan-nels. The legal framework has also changed, as the“Tasca” Decrees were revised in 2008 and 2009 in or-der to raise the production obligations incumbent onmost of the players in the market, especially new ar-rivals.

After an initial summing up in April 2010, a number ofproposals for measures designed to make the circu-lation of works easier were submitted to the sector’sprofessionals (television service editors, professionalorganisations in the sectors of the production, broad-casting and distribution of audiovisual programmes).The CSA used the observations made to supplementits analysis and to formulate definitive proposals.

The study highlights three fundamental points. Firstly,there was no evidence of rights being frozen. Sec-ondly, however, works circulate mainly between chan-nels in the same group. Thirdly, those channels notbacked by a “historic” analog broadcaster may en-counter problems with access to works, in the form ofextremely limited access to financing arrangements,and with the effects of contractual clauses (“first andlast refusal” clauses, retrocession clauses). The CSApoints out in its report that this clause deals with thepriority given to a first channel broadcasting a workto acquire exclusive broadcasting rights at the endof the period constituting the first “window” of rights(right of first refusal), and the obligation incumbenton the producer, before transferring rights to a thirdparty definitively, to offer these rights to the channelon the same conditions as those negotiated by thethird party (“last refusal” clause).

The CSA’s recommendations outline three objectives.Firstly, the rights granted to the broadcaster should bein proportion to its investment in the production of thework, more particularly by reserving the clause of firstand last refusal for the best-financed works. Then,it is necessary to facilitate access to broadcastingrights, particularly for the “independent” channels,during the initial “window” of exclusive broadcastingrights, more particularly by allowing those “indepen-dent” channels that have committed themselves toinvesting in the production of new works made ini-tially in French or another European language to haveaccess to the financing schemes for works initiated bythe “historic” analog channels. The France Télévisionsgroup could play a particular role in this process. Atthe end of the first window of exclusivity, access tobroadcasting rights could be made easier by organ-ising the release of broadcasting rights at the end ofthe last airing under contract, without waiting for theend of the negotiated period of exclusivity and by lim-iting the period for using the clause of first and lastrefusal. The final objective consists of ensuring thetransparency of the contract for acquiring the works,more particularly by instituting a mediator for audio-visual creation responsible for overseeing the circula-tion of the works and for the resolution of disputes,along the lines of the cinema mediator.

• Contribution à la réflexion sur la circulation des œuvres audiovi-suelles, CSA, juillet 2010 (Contribution to consideration of the circu-lation of audiovisual works, CSA, July 2010)http://merlin.obs.coe.int/redirect.php?id=12687 FR


18 IRIS 2010-9


GB-United Kingdom

List of Protected Free-to-Air Events to be Re-tained Unamended

The UK has issued a list of events that are felt to havespecial national resonance and so are available, sofar as possible, for broadcast on free-to-air television.In late 2009 an Independent Review Panel reportedon the list (see IRIS 2010-1: 1/26). The Panel rec-ommended that the list be retained but amended sothat it should contain pre-eminent national or interna-tional events with the involvement of a national teamand likely to command a large television audience.The Summer Olympic Games, the World Cup Finalsand the UEFA European Football Championship Finalsshould continue to be listed, as should a number ofdomestic sporting events. The whole of the Wimble-don Lawn Tennis Championships should be listed (notjust the finals as at present) and the list should be ex-panded to include the Open Golf Championships andcricket’s Home Ashes Test Matches against Australia,as well as the whole of the Rugby Union World Cup.Some events should be removed from the list, suchas the Winter Olympic Games. There should also be asingle list of events rather than the current two lists,one with full protection and one with protection forhighlights only.

The proposals met with strong opposition from thesports governing bodies and the Government has nowannounced that the list will remain unchanged un-til the conclusion of digital switchover in 2012. Thiswould permit the consideration of the effects of avail-ability of a significantly increased number of free-to-air digital channels and the completion of the BBC’sstrategy review and the Ofcom Pay TV review. Accord-ing to the Government, the current economic climatealso points against making a decision which could ad-versely impact sport at the grassroots. There will thusbe a further review in 2013.

The listed events will consequently continue to in-clude protection of full live coverage of the OlympicGames, the World Cup Football Finals, the Euro-pean Football Finals, the Wimbledon Tennis Finals, theRugby World Cup Final and a number of major do-mestic events, such as the Derby horse race. Pro-tection of secondary coverage will include the OpenGolf Championship and the Ryder Cup, the World Ath-letics Championship, the Commonwealth Games andcricket Test Matches played in England.

• Department for Culture, Media and Sport, “Decision on Free-to-AirListed Events Deferred Until 2013”, Press Release 080/10, 21 July2010http://merlin.obs.coe.int/redirect.php?id=12678 EN

Tony ProsserSchool of Law, University of Bristol

Regulator Reviews Programmes Sponsoredby the Scottish Government

Ofcom, the UK communications regulator, has exam-ined 57 programmes broadcast on STV (Scottish com-mercial television) sponsored by the Scottish Gov-ernment after press allegations that the Governmenthad influenced the content of programming. The al-legations made reference to three programmes (the“Homecoming programmes”) sponsored by a Scottishnewspaper and Homecoming Scotland. The latter wasan initiative of the Scottish Government to get Scotsat home and abroad to reconnect with Scotland andconsisted of events, festivals and celebrations. Thepress reports had quoted letters from SCV’s Chief Ex-ecutive referring to the need to “incorporate our in-novative thinking around television exposure for thebenefit of the Government” and to “forge a closerpartnership with the Government”. Ofcom expandedits investigation to cover all programmes sponsoredby the Scottish Government, including 12 homecom-ing programmes and 45 others, mainly one-minutepublic information films.

The Communications Act 2003 does not prohibit spon-sorship of programmes by a government body. How-ever, the Broadcasting Code requires that a spon-sor must not influence the content of a programmeso as to undermine the broadcaster’s independence;there must be no promotional reference to the spon-sor; sponsorship must be clearly identified; and therelationship between sponsor and programme mustbe transparent.

Ofcom found that 39 of the programmes did notbreach the Code; these included all of the Home-coming programmes. However, 18 of the short pro-grammes were in breach of the Code, mainly througheditorial content being too closely linked to the spon-sor and, in one series, due to a lack of transparency inrelation to the sponsorship arrangements. For exam-ple, programmes promoting attendance at adult edu-cation courses promoted the services of the sponsor,Learn Direct Scotland. A programme on care for theelderly was considered by Ofcom to reassure viewersthat the Scottish Government’s National Care Stan-dards work in favour of elderly citizens and so wasakin to an advertisement for the sponsor. The pro-gramme “The Great Scottish Meal” identified “Spe-cially Selected Pork” as the sponsor whilst not mak-ing it clear that the overall sponsor was Quality MeatScotland, a government agency.

• Ofcom, “Scottish Government Sponsorship of Programmes”, OfcomBroadcast Bulletin 163, 2 August 2010, 31-55http://merlin.obs.coe.int/redirect.php?id=12676 EN

Tony ProsserSchool of Law, University of Bristol

IRIS 2010-9 19




GR-Greece

Greek Public Service Broadcaster in Crisis

The Greek public service broadcaster, Ελληνική Ρα-διοφωνία Τηλεόραση 321. 325. (National Television andRadio, Inc. - ERT), has been facing a serious crisisover the past few months. The PSB’s three televi-sion stations (ET1, NET and ET3) and the five radiostations of national coverage, as well as a number ofregional radio stations which also transmit via ERT’ssystems, have not gathered the popularity enjoyed bycorresponding European organisations, while criticismof its inordinately big number of employees has beenintensifying, particularly during recent months, whenways of saving money in the public sector have beensought.

A new law adopted in September 2010 aims at regu-lating certain questions concerning the administrationof the company. Most particularly, the division of thepositions of the President of the Administrative Coun-cil and of the Managing Director are foreseen, so asto ensure administrative flexibility, while the respon-sibilities of the Board of Directors are also due to beclarified. Nevertheless, how to best fill the position ofthe Managing Director of ERT, Inc. remains an impor-tant open issue, as at the end of July, six months afterhis initial appointment, the director appointed by thenew government, handed in his resignation. A pub-lic tender for the position, a process that usually lastsmore than two months, has already been published.

During the most recent administrative period the find-ings of the Body of Inspectors of Public Administration,a service for the internal inspection of the administra-tion, were submitted to the Minister of Culture andTourism, reporting serious occurrences of inefficientadministration, lack of transparency, illegal assign-ments and improvident spending of public money dur-ing the last three years. The findings have been for-warded to the Public Attorney of the Court of Appealsfor the investigation of possible criminal liability, asindicated by the findings and the conclusions drawntherein. During the same administrative period, itwas announced that the Public Attorney of the Courtof First Instance began criminal proceedings againstseven of ERT’s members of staff for the perpetrationof two felonies and four misdemeanours in the agree-ment of contracts harmful to the State.

These problems will soon be placed in the hands ofMr. Telemaxos Xitiris, deputy Minister of Culture andTourism, to whom, as was announced during the re-cent Cabinet reshuffle, all audiovisual matters will beassigned.

• Νόμος 345300’321301371370. 3878, ΦΕΚ 321’ 161, 20 Σεπτεμβρίου

2010 (Law No. 3878, Official Gazette A-161, 20 September 2010)http://merlin.obs.coe.int/redirect.php?id=12708 EL

Alexandros EconomouNational Council for Radio and Television

HR-Croatia

New Media Rules

The Electronic Media Law (“Law”) came into effecton 29 December 2009 whereby, pursuant to Article88, Paragraph 2, the Council for Electronic Media hadbeen required to adopt new secondary legislation. Ac-cordingly, the following Rules have been adopted:

- Pursuant to Article 37, para. 6 of the Law the Ruleson Detailed Criteria for Determining which Audiovi-sual and/or Radio Programmes are to be Consideredas Own Production, in effect since 17 April 2010 (Offi-cial Gazette No. 43/10);

- Pursuant to Article 40, para. 3 of the Law the Ruleson Croatian Audiovisual Works, in effect since 17 April2010 (Official Gazette No. 43/10);

- Pursuant to Article 42, para. 2 of the Law the Ruleson the Criteria and Manner of Increasing the Share ofEuropean Works, in effect since 17 April 2010 (OfficialGazette No. 43/10);

- Pursuant to Article 44, para. 2 of the Law the Ruleson the Criteria and Manner of Increasing the Share ofEuropean Audiovisual Works by Independent Produc-ers, in effect since 17 April 2010 (Official Gazette No.43/10);

- Pursuant to Article 64, para. 6 of the Law the Rulesfor the Methods and Procedures of the Public Tenderfor Co-financing Audiovisual and Radio Programmesfrom the Resources of the Fund for the Promotion ofPluralism and Diversity of Electronic Media, as well asfor the Criteria for the Allocation of those Resourcesand the Method of Supervising their Utilisation and theProduction of the Relevant Programmes (“Rules on theFund”), in effect since 17 April 2010 (Official GazetteNo. 43/10);

- Pursuant to Article 75, para. 6 of the Law the Ruleson the Register of Media Service Providers, in effectsince 17 April 2010 (Official Gazette No. 43/10);

- Pursuant to Article 41, para. 3 of the Law the Rulesfor Exercising the Right to Correction in Programmesof Audio and Audiovisual Media Service Providers, ineffect since 17 April 2010 (Official Gazette No. 43/10);

20 IRIS 2010-9


- Pursuant to Article 73, para. 3 of the Law the Rulesfor the Content and Procedure of the Public Tenderfor Granting Concessions for Providing Television andRadio Services, in effect since 24 April 2010 (OfficialGazette No. 46/10);

- Pursuant to Article 75, para. 5 of the Law the Ruleson Obligations to Pay Fees, Relevant Amounts and theMethods of Paying, in effect since 24 April 2010 (Offi-cial Gazette No. 46/10);

- Pursuant to Article 12 of the Rules on the Fund theDecision on the Method of Evaluation of Tender Bidsfor the Allocation of the Resources of the Fund for thePromotion of Pluralism and Diversity of Electronic Me-dia, in effect since 7 June 2010 (Official Gazette No.53/10);

- Pursuant to Article 26, para. 4 of the Law the Ruleson the Protection of Minors, in effect since 21 May2010 (Official Gazette No. 60/10);

- Pursuant to Article 22, para, 3 and Article 3 of theLaw the Rules on the Minimum Conditions for Provid-ing Audio and Audiovisual Media Services as well ason Keeping Broadcasting Logs, in effect since 5 June2010 (Official Gazette No. 66/10).

• Narodne novine d.d. (All Rules are available at:)http://merlin.obs.coe.int/redirect.php?id=9658 HR

Nives ZvonaricAgencija za elektronicke medije, Novo Cice

IS-Iceland

Resolution on the Protection of Freedom ofExpression and Information

On 16 June 2010 the Icelandic Parliament adopted aresolution on the protection of freedom of expressionand information. In the resolution the governmentis invited to find ways to strengthen freedom of ex-pression, the protection of sources of information andwhistleblowers. To this end the government shall, in-ter alia, review the legislative framework and prepareamendments to it, study the laws of other countries inorder to use best practice to bring Iceland to the fore-front in this respect, map the State’s preparations, inparticular from a security point of view, because of theoperations of international data centres in the country.The Minister of Education and Culture shall inform theParliament every three months about progress withimplementing the resolution.

When the proposal for a resolution was introducedin Parliament by members of all parties last win-ter it raised considerable interest at the international

level. The explanatory report spoke about changingthe country so that it would provide a progressive en-vironment for the registration and operations of in-ternational media and publishers, start-ups, humanrights organisations and data centers. This wouldstrenghten democracy, encourage necessary reformin the country and increase transparency. This mightalso increase the nation’s standing at the interna-tional level and stimulate the economy.

A report issued by the relevant Parliamentary Com-mittee which dealt with the proposal strikes a morecareful note. It remarks that the extent to which Ice-land can take a leading role in increasing freedom ofexpression ensuring that the laws of other countriesdo not apply to computing in data centers in Icelandhas to be studied more closely. One might ratherthink, according to the report, that Iceland needs toregain trust from neighbouring countries following theeconomic collapse in 2008. Iceland needs to pay at-tention to other states and to international conven-tions which are binding upon it. One lesson from theeconomic collapse was, according to the report, thatwanting to excel too quickly is sometimes dangerous.The government needs to be well prepared before fur-ther steps are taken. There is for example no Com-puter Emergency Response Team in the country. Ca-ble connections with Europe are also sometimes un-stable. Iceland does not have the powers to get in-volved with libel legislation in other countries. Fur-thermore, there is no intention to create a safe havenwhere international law is not applicable.

• Þingsályktun um að Ísland skapi sér afgerandi lagalega sérstöðuvarðandi vernd tjáningar- og upplýsingafrelsis (Parliamentary Resolu-tion on Iceland establishing a unique legal framework as regards theprotection of freedom of expression and information)http://merlin.obs.coe.int/redirect.php?id=12684 IS

Páll ThórhallssonReykjavik University

MD-Moldova

Freedom of Expression Act Enters into Force

On 9 October 2010 the Statute of the Republic ofMoldova on Freedom of Expression, adopted by theParliament on 23 April 2010, enters into force. The actaims inter alia to implement the case law of the Eu-ropean Court of Human Rights on Article 10 into thestatuary law of the country, especially in relation tothe balance between freedom of expression and theright to honour and dignity, and the right to privacy.The Statute introduces into the Moldovan law suchterms as “fact”, “opinion”, “opinion that has no ade-quate factual basis”, “public interest”, “public figure”,“person who conducts public functions”, “journalistic

IRIS 2010-9 21



investigation”, “apologies”, “hate speech”, etc. It alsoexpands some of the existing notions such as “censor-ship”, which now includes “ungrounded distortion ofa journalist’s material by the leadership of the massmedia outlet” (Art. 2).

Article 3 para. 2 states that freedom of expres-sion protects information “that offends,shocks or dis-turbs”. Para. 3 is a verbatim translation of Article 10para 2 of the European Convention on Human Rights.Para. 5 stipulates that freedom of expression does notprotect hate speech.

Article 4 para. 3 adds to the guarantees of the free-dom of expression in the mass media the right “toexaggeration or even provocation, as long as theessence of the facts is not distorted”.

Most provisions of the new statute introduce norms re-lated to defamation and privacy law, including proce-dural norms. The basic provisions here are as follows.“Protection of honour, dignity and business reputationshall not prevail the right of the public to obtain infor-mation of public interest” (Art. 6 para. 2). As to theprotection of privacy the Statute stipulates (Art. 10para 3): “No one shall be prosecuted for disclosureof information on private or family life of a person ifthe public interest in its dissemination overweighs theinterest of the particular person in its nondisclosure.”The Statute establishes a limitation period of 30 daysfor a defamation lawsuit (Art. 17). Moral damagescan be awarded to a public figure only in a case ofmalicious defamation (Art. 29 para 2).

The Statute also deals with such issues as protectionof sources of information and journalistic privileges.

• ÇÀÊÎÍ î ñâîáîäå âûðàæåíèÿ ìíåíèÿ � 64 îò 23.04.2010(Statute “On Freedom of Expression” Official Journal of 9 July 2010)http://merlin.obs.coe.int/redirect.php?id=12656 MO


ME-Montenegro

New Laws on Electronic Communications andMedia Adopted

The Montenegrin Parliament adopted the new Law onElectronic Media, along with the necessary changesto the accompanying Law on Electronic Communica-tions, intended to stipulate the competences of theregulatory bodies in the area of electronic media.

According to the new legislation, the MontenegrinBroadcasting Agency (renamed Agency for Electronic

Media) shall continue to work as the Agency respon-sible for electronic media and the allocation of broad-casting frequencies by public procedures shall againbe under its authority.

This solution will clarify the confusion created by pre-vious legal provisions from 2008, which deprived theBroadcasting Agency of several important competen-cies and did not provide any specific alternative. Thesame legislation prescribed the foundation of a newregulatory body, the Agency for Electronic Communi-cations and Postal Affairs, but the competencies of thetwo Agencies were not clearly distinguished and wereexplained only by drafting the new Law on ElectronicMedia that has now been adopted (see IRIS 2009-10:0/106 and IRIS 2010-3: 1/31).

These changes in legislation were preceded by a sig-nificant amount of criticism from the European Com-mission’s Delegation in Montenegro regarding the un-certainty connected to the procedure for the assign-ment of broadcasting frequencies, which was believednot to be in line with European standards. The Gov-ernment claims that the new Law is completely inline with international standards and that it clearlyprovides political, institutional and financial indepen-dence of the Agency for Electronic Media. Accordingto the new Law, the founder of the Agency is theState of Montenegro and the Council of the Agency,as its governing body, shall be elected by the Parlia-ment. Universities, non-governmental organisations,Pen centre and associations of commercial broadcast-ers shall delegate the candidates.

However, the discussion in the Parliament unveiled adilemma as to whether this solution was a compro-mise made by the Government in order to keep thecontrol over the other regulatory body, the Agencyfor Electronic Communications and Postal Affairs. TheLaw on Electronic Communications kept the existingsolution due to which the Government will appoint theCouncil members of this Agency, which controls pri-marily the area of telecommunications with an annualturnover of over EUR 300 millions.

Another general remark made by the political oppo-sition in the parliamentary plenary discussion held atthe end of July 2010 was that the new legislation pre-served the existence of two Agencies that will regu-late the areas of electronic and telecommunications,which is contrary to the national strategy on electroniccommunications.

• ZAKON O ELEKTRONSKIM MEDIJIMA (Law on Electronic Media)http://merlin.obs.coe.int/redirect.php?id=12711 SR• ZAKON O IZMJENAMA I DOPUNAMA ZAKONA O ELEKTRONSKIM KO-MUNIKACIJAMA (Law on Changes to the Law on Electronic Communi-cations)http://merlin.obs.coe.int/redirect.php?id=12712 SR

Daniela SeferovicKRUG Communications & Media, Montenegro

22 IRIS 2010-9







RO-Romania

Public Consultation to Modify the Audiovi-sual Code

The Consiliul National al Audiovizualului (NationalCouncil for Electronic Media - CNA) launched on 17August 2010 a public consultation regarding the pro-posed changes of Decizia nr. 187/2006 privind Codulde reglementare a continutului audiovizual (Decisionno. 187/2006 concerning the Regulatory Code for Au-diovisual Content, Audiovisual Code). The project wasplaced for one month on the Council’s website (seeIRIS 2006-4: 19/33, IRIS 2007-1:16/29, IRIS 2007-4:19/30, IRIS 2008-1: 17/25 and IRIS 2008-2: 17/26).

The Audiovisual Code has to be modified to be inline with the Legea Audiovizualului (Audiovisual Law)and the European Union Directive on Audiovisual Me-dia Services. The Audiovisual Law offers the generalframework for the Council’s and the broadcasters’ ac-tivities. The Audiovisual Code details the obligationsof the channels with regard to editorial content, adver-tising, minors’ and human dignity protection, correctinformation etc.

The most important changes proposed by the CNAtarget the regime concerning advertising, the protec-tion of minors and human dignity and the principlesconcerning correct information. The Council’s propo-sitions are aimed inter alia at:

- the advertising regime: the conditions to use prod-uct placement, virtual advertising, sponsoring, adver-tising within split screens;

- the broadcasting rules concerning sports matches;

- to loosen restrictions with regard to liberal profes-sions advertisement;

- to tighten the non-commercial communication rules;

- to tighten the child protection rules and to renew theprogramme classification rules;

- to adapt rules with regard to human dignity, the pro-tection of the right in one’s own image and the rulesregarding the right to reply;

- to tighten the rules to assure correct information andpluralism;

- to tighten the rules with regard to games and con-tests.

The CNA will discuss with broadcasters the changesproposed within the public consultation and it intendsto adopt a new Audiovisual Code during Fall 2010.

• Proiect - Propuneri de modificare a deciziei nr. 187/2006 privindCodul de reglementare a continutului audiovizual (Draft proposals tomodify Decision no. 187/2006 concerning the Regulatory Code forAudiovisual Content, Audiovisual Code)http://merlin.obs.coe.int/redirect.php?id=12673 RO• CNA a pus in dezbatere publica propunerile de schimbare a Co-dului audiovizual. Principalele modificari vizeaza regimul publicitatii,protectia copilului si a demnitatii umane (Information on the publicconsultation launched by the CNA)http://merlin.obs.coe.int/redirect.php?id=12674 RO

Eugen CojocariuRadio Romania International

Digital Switchover Postponed

The Romanian Government decided on 11 August2010 to postpone the switchover from analogue todigital television until 1 January 2015. The previousdeadline foreseen for the switchover was 1 January2012.

The new Decree repealed Government Decree no.464/2010 on the granting of licenses to use radio fre-quencies in the digital television system and the mod-ified Strategy of transition from analogue terrestrial todigital television and the introduction of digital multi-media services at national level, approved by Govern-ment Decree no. 1213/2009 (Official Journal of Ro-mania no. 357 of 31 May 2010). The Strategy wasfirst published in the Official Journal of Romania no.721 of 26 October 2009 and modified afterwards (seeIRIS 2009-9: 17/26, IRIS 2010-1: 1/36, IRIS 2010-3:1/34 and IRIS 2010-7: 1/32).

The postponement of the switchover put an end tothe ongoing tender for the granting of the first two na-tional digital television multiplexes. Seven companieshad bought the Terms of References (tender specifica-tions) for the first two Romanian national DVB-T digitalmultiplexes, which should have been granted by wayof distinct comparison-based selections organised bythe Autoritatea Nationala pentru Reglementare si Ad-ministrare în Comunicatii (National Authority for Ad-ministration and Regulation in Communications, AN-COM). The tenderers will be reimbursed by ANCOMthe Terms of References costs.

The analogue television UHF band frequencies ser-vices will be terminated by 1 January 2015, but cancoexist with digital services until then. The Govern-ment will adopt another Decree to establish the newcalendar to implement the above mentioned Strategy.

The postponement decision, which surprised thebroadcasting market, was officially explained by thewill of the Government to release Romanian citizens ofbuying new TV devices during the economic crisis andto assure the operators a reasonable amount of timeto comply with the new technical demands. Allegedly,the decision was taken in order to find a solution to

IRIS 2010-9 23














offer one of the licenses to RADIOCOM, the RomanianState-owned public radio and television programmesprovider, without breaching EU legislation.

• Hotarârea Guvernului României nr. 833/2010 din 11 august 2010pentru modificarea Strategiei privind tranzitia de la televiziunea ana-logica terestra la cea digitala terestra si implementarea serviciilormultimedia digitale la nivel national, aprobata prin Hotarârea Guver-nului nr. 1213/2009, publicata în Monitorul Oficial al României nr. 609din 27 August 2010 (Government Decree no. 833/2010 of 11 August2010 on the modification of the Strategy of transition from analogueterrestrial to digital television and the introduction of digital multime-dia services at national level, approved by Government Decree no.1213/2009, published in the Official Journal of Romania no. 609 of 27August 2010) RO

Eugen CojocariuRadio Romania International

SK-Slovakia

Plans of the New Government in the Area ofMedia

On 11 August 2010 the National Assembly of theSlovak Republic approved the new Government Pro-gramme Declaration (“Declaration”). The main ob-jectives in the area of culture are the protection andrestoration of the cultural heritage, a complete reformof the public media and an efficient administration ofpublic finances. The Deputy Minister of Culture an-nounced that one of the priorities is also the elabora-tion of a document on the direction of culture for thenext years, for the purpose of transforming the cultureto a sector suitable for investment.

One major issue susceptible to change is the paymentsystem for public media. According to the Declaration“the Government will repeal the concessionary feesand create a new legislative framework for the financ-ing, organising and functioning of the public mediawith an aim to increase their efficiency and strengthentheir public character”. Firstly, the Minister of Culturewants to bring forward the concept of public mediato discuss it with specialists. A part of this conceptis also the repeal of “concessionary fees” planned tobe concluded by 1 January 2012. The Minister of Cul-ture has pointed out that five statutes will have to beamended before this reform can be effectuated and along legislative process will therefore be necessary.

Although the Minister speaks of “concessionary fees”,this term is not precise. The concessionary fees,which were paid only by natural persons who owned atelevision/radio receiver and legal persons who held arecord of a television/radio receiver in their account-ing, have been replaced by “payments for public ser-vices in the area of television and radio broadcasting”established by Act No. 68/2008 Coll., which are paidby all natural persons who purchase electricity and by

employers who employ at least three persons. Never-theless, besides expanding the number of people whoare obliged to pay the respective fees, the system ofgathering finances from the public in the form of acompulsory contribution remained unchanged.

Although the new “payments for public services” wereexpected to increase the amount of payments fromthe public, the Slovak Television, the Slovak Radio andthe Radio and Television Company (“RTC”), the bodyentrusted with the collection of fees, have informedabout a decrease in revenues, which they connectwith the newly issued information about a total repealof the payment system. The Ministry of Culture deniessuch argumentation due to the fact that the decreaseis visible since the second half of the year 2009.

Another important intention of the Ministry of Cul-ture concerns Act No. 270/1995 Coll. Language Act(“LA”). The Ministry wants to abolish the sanctionsfor breaches of the LA, which were introduced by theAmendment No. 318/2009. According to s. 9a if theMinistry of Culture discovers a breach of the specificprovisions of the LA and the illegal consequences arenot eliminated within the period given by a writtenwarning the Ministry may impose a fine from EUR 100up to EUR 5,000.

Finally, the granting of subsidies from the Audiovi-sual Fund (“Fund”) should become more transparent.There was a longstanding critique of the authoritymembers to allocate finances for their own projects.According to the new system, members of the board,the control commission and the expert commissioncannot file an application for subsidy. The same willapply to persons close to these members.

It will not be possible for applicants to be a part of thedecision-making process. In case of a member of theexpert commission if there is a possibility of conflict ofinterest the respective member shall not participatein the whole proceeding and has to be representedby a substitute. The members of the board and thecontrol commission are absolutely barred from decid-ing on the subsidy. Should the member of the boardor the control commission have an employment orcopyright-based relation with the applicant, he has todisclose this in advance and cannot take part in thedeliberation process of the bodies of the Fund regard-ing this matter.

• OBCIANSKA ZODPOVEDNOST A SPOLUPRÁCA PROGRAMOVÉ VYH-LÁSENIE VLÁDY SLOVENSKEJ REPUBLIKY NA OBDOBIE ROKOV 2010 -2014 (Government Programme Declaration, August 2010)http://merlin.obs.coe.int/redirect.php?id=12675 SK

Jana MarkechováMarkechova Law Offices

24 IRIS 2010-9


TR-Turkey

Cinematographic Works Collecting SocietiesHave Joined Forces

The collecting societies in the field of cinematographicworks have joined forces under a union named “Unionof Forces of Cinematographic Work Owners’ and Re-lated Rightsholders’ Collecting Societies”.

It should be noted that more than one collecting soci-ety in the same area may be founded in Turkey. Theareas are listed in Article 7 of the Regulation Regard-ing Intellectual and Artistic Works Owners and RelatedRight Holders, according to which, in the field of cin-ematographic works, authors, performers, radio andTV organisations and film producers may set up oneor more separate collecting societies (see IRIS 2009-7: 19/33).

The Union does not constitute a federation, but it pro-vides a constructive co-operation among the eightcollecting societies, which consist of the BIROY - So-ciety of Movie Actors, BSB - Association of Docu-mentary Film Makers, FIYAB - Society of Film Produc-ers, SINEBIR - Cinematographic Work Owners’ Soci-ety, SEYAP - Movie Producers Professional Association,SETEM - Cinema and Television Works Owners’ So-ciety, TESIYAP - Society of Television and Cinemato-graphic Work Producers, SESAM - CinematographicWork Owners’ Society of Turkey.

According to the founding agreement the main objec-tives of the Union are the collection of the royalty pay-ments and the communication with private and publicinstitutions in the name of all cinematographic soci-eties. Furthermore, the Union aims to fight againstpiracy, to determine joint tariffs, to provide the record-ing and registration made by collecting societies, toobtain a share from the private copy levies collectedby the Ministry of Culture and Tourism (see IRIS Spe-cial, Creativity Comes at a Price The Role of CollectingSocieties, 2009), to establish a media monitoring sys-tem and to lobby regarding the Law on Intellectualand Artistic Works and other related regulations.

The executive committee of the Union consists ofthe chairmen of the constituent collecting societiesand decides unanimously. According to the foundingagreement each collecting society is obliged to makethe Union’s decisions their own decision by approvalof their own executive committees.

As a first activity, in August, the collecting societieshave moved to joint headquarters, which have beenprovided by the Ministry of Culture upon the Union’srequest.

Up to the present, in spite of their effort to get to-gether and solve the problems they face, none of the

attempts of the collecting societies in the field of cin-ematographic works had achieved success. There-fore they were rather passive, while the collecting so-cieties in the field of music have made remarkableprogress (see IRIS 2009-2: 19/32).

However, the establishment of the mentioned Unionpromises hope for a better situation in respect of therights of cinematographic works’ owners.

Eda ÇataklarIntellectual Property Research Center, Istanbul Bilgi

University

GB-United Kingdom

Ofcom Decisions on the Regulation of thePay-TV Market

It was already becoming apparent before the comple-tion of the pay-TV review that the British regulator Of-com’s task of regulating the pay-TV markets would notend with the review’s publication on 31 March 2010.

Ofcom has now put its thinking in more concreteterms in two decisions: it has referred an investiga-tion into possible distortions of competition in BSkyB’smarketing of Hollywood films to the Competition Com-mission (CC) for further examination and taken actionitself on the conditions for the distribution of the chan-nels Sky Sports 1 and 2, prohibiting Sky, according toreports, from limiting the use of set-top boxes in itswholesale contract with Top Up TV.

The decision of 4 August 2010 on the marketing offilms concerns two specific markets of particular im-portance for pay-TV in the United Kingdom: the mar-ket for first-run films from the major Hollywood studioson pay-TV and the wholesale market for pay-TV pack-ages containing film channels based on these rights.Ofcom assumes that a combination of several marketfeatures has adverse effects on competition, leadingin turn to reduced choice, less innovation and higherprices. The market situation, it says, gives Sky in par-ticular an incentive to impede competition. It notesthat a previous consultation revealed that no changein the marketing structures could be expected withoutregulation. However, as its own sectoral powers areunlikely to solve the problems relating to competitionit decided to refer the matter to the CC, which nowhas two years to investigate the situation and takeany necessary measures.

In the meantime Ofcom has prohibited Sky from us-ing a clause in its wholesale contract with the digitaltelevision group Top Up TV that would limit the mod-els of set-top box that can be used for the distribution

IRIS 2010-9 25




of Sky Sports. In the context of the pay-TV review, TopUp TV, as one of the four companies that initiated theinvestigation, was ordered to begin negotiations withSky on the distribution of the two premium channelsSky Sports 1 and 2. In the course of these negotia-tions, Sky opposed Top Up TV’s plans to introduce anew digital receiver capable of receiving not only thetwo sports channels but also other digital terrestrialchannels, including the Freeview offering and the lin-ear Top Up TV channels, but not additional premiumcontent.

Ofcom has now ordered the removal of the clausefrom the contract as it would restrict the market forTop Up TV to existing customers and customers willingto purchase a more expensive set-top box with a hard-disk recorder. Sky has already announced its intentionto appeal against the decision, arguing that the merereselling of Sky Sports 1 and 2 was not intended byOfcom itself in the original obligation to supply sincethe aim of this obligation was to promote innovation.

In the pay-TV review, Ofcom states that BSkyB mustoffer its premium sports channels Sky Sports 1 and2 to all competing platforms at a price set by Ofcom(see IRIS 2010-5/26 and IRIS 2009-8/21).

The terrestrial pay-TV service offered by Sky and Ar-qiva under the name Picnic has been approved sub-ject to an agreement actually being reached on theprovision of sports channels to wholesale customers.If Picnic offers feature films, the relevant channelsmust also be made available to other terrestrial tele-vision providers.

On the other hand, Ofcom held that it did not have thepower to regulate video-on-demand film rights, initi-ating a further consultation on the subject and thenreferring the matter to the Competition Commission.

• Ofcom decision of 4 August 2010http://merlin.obs.coe.int/redirect.php?id=16245 EN• Ofcom decision on the pay-TV market of 31 March 2010http://merlin.obs.coe.int/redirect.php?id=16246 EN


Brussels

26 IRIS 2010-9

http://merlin.obs.coe.int/cgi-bin/show_iris_link.php?language=en&iris_link=2010-5/26&id=14177

http://merlin.obs.coe.int/cgi-bin/show_iris_link.php?language=en&iris_link=2009-8/21&id=14177



Agenda

Performers’ Right in Today’s European Environment:How to adapt existing Rights to News Uses ofperformances18 - 19 November 2010Organiser: AEPO-ARTISVenue: BrusselsInformation & Registration:Tel.: +32 2 280 19 34Fax: +32 2 230 35 07E-mail: [email protected]://www.aepo-artis.org

Book List

Chambat-Houillon, M-F., Lebtahi Y.,Télévision et justice2010, l’HarmattanISBN 978-2-296-11811-9http://www.editions-harmattan.fr/index.asp?navig=catalogue&obj=livre&no=32245

Mazziotti G.,EU Digital Copyright Law and the End-User2010, Springer; 1st Edition. editionISBN 978-3642095092

http://www.springer.com/law/international/book/978-3-540-75984-3

Sykes, G.,Courting the Media: Contemporary Perspectives on Media &Law2010, Nova Science Publishers IncISBN 978-1616687847https://www.novapublishers.com/catalog/product_-info.php?products_id=14099

Product Placement als Chance für die Werbeindustrie (?):Aktuelle Entwicklungen aus wirtschaftlicher und rechtlicherSicht2010, AVM - Akademische Verlagsgemeinschaft München;Auflage: 1., AuflISBN 978-3899754391http://www.avm-verlag.de/index.html

Stegmann, M.,Chancen und Risiken durch Globalisierungsprozesse für diekulturelle Vielfalt im dualen Rundfunksystem2010, Grin VerlagISBN 978-3640702510http://www.grin.com/e-book/156109/chancen-und-risiken-durch-globalisierungsprozesse-fuer-die-kulturelle

The objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.

© European Audiovisual Observatory, Strasbourg (France)

IRIS 2010-9 27

http://www.editions-harmattan.fr/index.asp?navig=catalogue&obj=livre&no=32245

http://www.editions-harmattan.fr/index.asp?navig=catalogue&obj=livre&no=32245



https://www.novapublishers.com/catalog/product_info.php?products_id=14099

https://www.novapublishers.com/catalog/product_info.php?products_id=14099

http://www.avm-verlag.de/index.html

http://www.grin.com/e-book/156109/chancen-und-risiken-durch-globalisierungsprozesse-fuer-die-kulturelle

http://www.grin.com/e-book/156109/chancen-und-risiken-durch-globalisierungsprozesse-fuer-die-kulturelle

IRIS 2010-9 INTERNATIONAL

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