IRIS 2013-1

INTERNATIONAL

COUNCIL OF EUROPE

European Court of Human Rights: Szima v. Hungary . . . . . . 3

EUROPEAN UNIONEuropean Parliament: Adoption of Resolution on Pro-tecting Children in the Digital World . . . . . . . . . . . . . . . . . . . . . . 3European Parliament: Media Representatives See MediaFreedom at Risk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4EIB/EBRD Prepared to support Eastern European Broad-casters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4General Court: ECB’s refusal to grant access to docu-ments lawful. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

NATIONAL

AL-AlbaniaKKRT Issues Warning on Advertising of Medical Treat-ment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

AT-AustriaAdministrative Court Confirms “Facebook Ban” for theORF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6KommAustria Does not Regard Tennis Davis Cup as aPremium Sports Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6ORF’s Special-Interest Channels must be fed into Ana-logue Networks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Action Brought against RTL for Being Insulted as the“Monster from the Deep” Dismissed . . . . . . . . . . . . . . . . . . . . . . 7

BA-Bosnia And Herzegovina

Approach to “Significant Value” Adopted. . . . . . . . . . . . . . . . . . 7

BG-Bulgaria

Report on the Proportion of European Works and Inde-pendent Productions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

CZ-Czech Republic

Amendment of the Broadcasting Act . . . . . . . . . . . . . . . . . . . . . . 8

DE-Germany

Administrative Court Criticises Award of Third-partyBroadcasting Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9“Tag des Glücks” Show Taken off Air following Ban . . . . . . . . 9Packages of Measures Decided by RBB to Increase Li-cence Fee Revenues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10Government Decides to Introduce Compulsory Registra-tion for Cinema Films . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10Bundestag Votes additional EUR 100 Million for Culture . .11

FI-Finland

ISP not Granted Leave to Appeal in The Pirate Bay Case. .11

FR-FranceAbsence of Liability on the Part of an Internet Site Offer-ing Access to Catch-up TV Programmes via Deep Hyper-text Links . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Lawfulness of Clause in Contract for Production of a FilmAuthorising its Termination on the Grounds of Failure toObtain Financing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12Government Considers Possible Convergence of CSAand ARCEP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13CSA Takes up the Issue of Scripted Reality . . . . . . . . . . . . . . .14

GB-United Kingdom

Competition Appeal Tribunal Decision on Pay TV . . . . . . . . .14

HU-Hungary

Major Private Broadcasters Launch new Channels . . . . . . . .15

IE-IrelandPsychic Readings Live in Repeated Breaches of Broad-casting Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15Revision of General and Children’s Commercial Commu-nications Codes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16Digital Switchover of Terrestrial Television Complete . . . . .17

LU-Luxembourg

Bill on the Creation of a New Media Authority . . . . . . . . . . . .17

LV-LatviaAmendments to Electronic Media Law under considera-tion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

NL-Netherlands

Bill to Amend the Media Act 2008 . . . . . . . . . . . . . . . . . . . . . . . .18

NO-Norway

The First Ex Ante Test Completed . . . . . . . . . . . . . . . . . . . . . . . .19

PL-Poland

Draft Amendment to the Broadcasting Act . . . . . . . . . . . . . . .20

RO-Romania

Severe Sanctions for more Romanian TV Stations . . . . . . . .21

RU-Russian FederationResolution of the Supreme Commercial Court on Trans-parency of Justice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

SE-SwedenRadio and Televisions Act Applies to Newspapers’ WebTV Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

SK-Slovakia

“Media Partnership” as Remuneration for Advertising . . . .22

US-United StatesCourt Denies Preliminary Injunction against Ad-SkippingServices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

DE-Germany

BGH declares retention of reports on suspected offend-ers in online archives lawful . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

Editorial Informations

Publisher:European Audiovisual Observatory 76, allée de la RobertsauF-67000 STRASBOURGTél. : +33 (0) 3 90 21 60 00 Fax : +33 (0) 3 90 21 60 19E-mail: obs@obs.coe.int www.obs.coe.intComments and Contributions to:iris@obs.coe.intExecutive 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) � Björn Janson, Media Division of the Directorateof Human Rights of the Council of Europe, Strasbourg(France) � Andrei Richter, Faculty of Journalism, MoscowState University (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) � Tarlach McGonagle, 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: alison.hindhaugh@coe.int

Translations:Michelle Ganter, European Audiovisual Observatory (co-ordination) � Brigitte Auel � France Courrèges � Michael Finn� Marco Polo Sàrl � Manuella Martins � Katherine Parsons� Stefan Pooth � Erwin Rohwer � Roland Schmid � NathalieSturlèseCorrections:Michelle Ganter, European Audiovisual Observatory (co-ordination) � Francisco Javier Cabrera Blázquez & SusanneNikoltchev, European Audiovisual Observatory � CatherineJasserand, Institute for Information Law (IViR) at theUniversity of Amsterdam (The Netherlands) � Johanna Fell,European Representative BLM, Munich (Germany) � AmélieLépinard, Master - International and European Affairs,Université de Pau (France) � Julie Mamou � Candelaria vanStrien-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: markus.booms@coe.intWeb Design:Coordination: Cyril Chaboisseau, European AudiovisualObservatory � Development and Integration: www.logidee.com� Layout: www.acom-europe.com and www.logidee.comISSN 2078-6158 2011 European Audiovisual Observatory, Strasbourg(France)

INTERNATIONAL

COUNCIL OF EUROPE

European Court of Human Rights: Szima v.Hungary

The applicant in this case, Ms Judit Szima, was thechairperson of the Tettrekész Police Trade Union. Shepublished a number of writings on the Trade Union’swebsite, which was effectively under her editorial con-trol. In some of these writings she sharply criticizedthe police management, also referring to outstandingremunerations due to police staff, alleged nepotismand undue political influence in the force, as well asdubious qualifications of senior police staff. In 2010Szima was convicted for instigation to insubordina-tion. The Military Bench of the Budapest Court of Ap-peal confirmed her sentence as a fine and demotion.It held that the publication of the posted articles andstatements on Tettrekész’s website had gone beyondSzima’s freedom of expression, given the particulari-ties of the armed body to which she belonged. Accord-ing to the Hungarian authorities, the views containedin the website articles constituted one-sided criticismwhose truthfulness could and should not be proven.

The Strasbourg Court confirms that the accusationsby Szima of the senior police management of politi-cal bias and agenda, transgressions, unprofessional-ism and nepotism were indeed capable of causing in-subordination. The Court also observes that “it is truethat Szima was barred from submitting evidence inthe domestic proceedings - a matter of serious con-cern - however, in her attacks concerning the activ-ities of police leadership, she failed to relate her of-fensive value judgments to facts”. The Court is of theopinion that Szima “has uttered, repeatedly, criticalviews about the manner in which police leaders man-aged the force, and accused them of disrespect of citi-zens and of serving political interests in general”, andthat these views “overstepped the mandate of a tradeunion leader, because they are not at all related to theprotection of labour-related interests of trade unionmembers “ (§ 31). In view of the margin of appre-ciation applicable, in order to maintain discipline bysanctioning accusatory opinions that undermine trustin, and the credibility of, the police leadership, theEuropean Court accepts that there was a sufficient“pressing social need” to interfere with Szima’s free-dom of expression. It also found that the relativelymild sanction imposed on the applicant - demotionand a fine - could not be regarded as disproportionatein the circumstances. By six votes to one, the Courtconcluded that there has been no violation of Article10 read in the light of Article 11 of the Convention.

The outcome of the case is somewhat surprising, asthe Court firmly took as its starting point that “themembers of a trade union must be able to expressto their employer their demands by which they seekto improve the situation of workers in their company.A trade union that does not have the possibility ofexpressing its ideas freely in this connection wouldindeed be deprived of an essential means of action.Consequently, for the purpose of guaranteeing themeaningful and effective nature of trade union rights,the national authorities must ensure that dispropor-tionate penalties do not dissuade trade union repre-sentatives from seeking to express and defend theirmembers’ interests” (§ 28).

As the sole dissent, the president of the Chamber,Judge Tulkens, vehemently disagreed with the rea-soning of the Court. Tulkens refers to the finding bythe Court’s majority that Szima’s critical remarks hadoverstepped the mandate of a trade union leader, be-cause some of them were “not at all related to the pro-tection of labour-related interests of trade union mem-bers”. Tulkens wonders whether the Court itself hasnot overstepped its mandate by casting this judgmenton the role of a trade union leader and on the “le-gitimate” scope of trade-union activities. In Tulkens’view, the majority of the Court dismissed artificiallythe trade-union dimension of this case and, also ne-glected the importance of freedom of expression in ademocratic society.

• Judgment by the European Court of Human Rights (Second Section),case of Szima v. Hungary, nr. 29723/11 of 9 October 2012http://merlin.obs.coe.int/redirect.php?id=16185 EN

Dirk VoorhoofGhent University (Belgium) & Copenhagen University

(Denmark) & Member of the Flemish Regulator forthe Media

EUROPEAN UNION

European Parliament: Adoption of Resolu-tion on Protecting Children in the DigitalWorld

On 20 November 2012 the European Parliamentadopted, by a large majority, a resolution inviting themember states of the European Union to step up theirprotection of children on the Internet. The Council ofthe European Union presented its conclusions on thesubject in December 2011, and the European Com-mission presented a report on protecting children inthe digital world (see IRIS 2011-9/8). The EuropeanParliament Resolution was adopted on the date of the53rd anniversary of the Declaration of the Rights ofthe Child.

IRIS 2013-1 3

The main areas for consideration presented in the Par-liament’s Resolution are access to and education inboth the traditional and new media, children’s entitle-ment to protection (from illegal and harmful content,but also from invasion of their privacy), and the rightto digital citizenship.

Regarding access to and education in the media, theParliament notes that the Internet occupies an in-creasingly large part of children’s lives. Internet of-fers young people tools for communication, expres-sion and learning, but it also exposes them to numer-ous risks (violence, fraud, scams, child pornographyand harassment) which, in many cases, their parentsare unaware of. The Parliament invites the memberstates and the Commission to take specific measuresto create a safe on-line space. It urges the Commis-sion to include in its main priorities the protection ofchildren from aggressive or misleading TV and onlineadvertising, and calls on member states to intensifytheir communication campaigns in order to make bothchildren and adults aware of the potential dangers ofthe Internet.

The protection of children must be approached notonly in terms of legislation, but also through educa-tion, by educating not only children but also parentsand teachers as to how to combat illegal content. TheParliament invites the Commission and the memberstates to increase their cooperation (particularly withregard to the withdrawal of Internet pages showingillegal and harmful content) and pool their expertiseand good practices.

The Resolution also emphasises the importance of theInternet in learning about citizenship, particularly be-cause of the tools for communication and expressionthat the new media offer.

• Resolution of the European Parliament on protecting children in thedigital world, 20 November 2012http://merlin.obs.coe.int/redirect.php?id=16233 DE EN FRCS DA EL ES ET FI HU IT LT LV MTNL PL PT SK SL SV

Catherine JasserandInstitute for Information Law (IViR), University of

Amsterdam

European Parliament: Media Representa-tives See Media Freedom at Risk

On 6 November 2012, the European Parliament held ahearing with politicians and media experts on issuesrelating to media freedom. The main conclusions ofa study conducted on behalf of the European Parlia-ment by the Institute for European Media Law (EMR)provided a basis for discussions, especially given therestrictions on media freedom in many EU memberstates.

The Secretary General of the organisation ReportersWithout Borders (RSF) said there was no EU state inwhich media freedom had not declined. Through po-litical influence, police violence or arbitrary arrests,for example in Greece, Romania or Bulgaria, journal-ists were often put under pressure in order to suppresscritical reporting.

Owing to these worrying trends, a representative ofthe Association of European Journalists (AEJ) called forthe physical security of journalists to be safeguardedin compliance with the European Convention on Hu-man Rights and the standards of the Council of Eu-rope.

MEPs called for the European Commission to issuea statement on the subject. Owing to the difficulteconomic situation, less and less was being investedin journalism and, according to the conclusions of astudy by the Open Society Foundation (OSF), signif-icant pressure was being exerted on the media bythe advertising industry. The protection of journal-ists’ sources of information and the protection of indi-viduals in public life against defamation were impor-tant standards that were currently insufficiently safe-guarded.

Regarding media concentration, which, as a resultof the influence of politicians and business peo-ple, is putting diversity of opinion at risk, the Euro-pean Broadcasting Union (EBU) called for more trans-parency in regard to the ownership of media organ-isations. At any rate, when enacting future legal in-struments the EU should take more careful accountof, and provide better safeguards for, media freedomand editorial independence at the national level.

• Presse release of the European Parliament of 6 November 2012http://merlin.obs.coe.int/redirect.php?id=16232 DE EN FRCS DA EL ES ET FI HU IT LT LV MTNL PL PT SK SL SV

Cristina BachmeierInstitute of European Media Law (EMR), Saarbrücken/

Brussels

EIB/EBRD Prepared to support Eastern Euro-pean Broadcasters

At a conference held in Vienna by the European Broad-casting Union (EBU) on 29 October 2012, represen-tatives of the European Investment Bank (EIB) andthe European Bank for Reconstruction and Develop-ment (EBRD) emphasised the advantages of digitisa-tion and announced their intention to invest in thedigitisation of public service broadcasting in EasternEurope. The conference, on “Financing digitalisationin Eastern Europe: the challenge for public servicebroadcasters”, was organised by the EBU’s Vice Pres-ident under the EBU Partnership Programme together

4 IRIS 2013-1

with the Austrian Federal Chancellery, the Österre-ichischer Rundfunk (Austrian Broadcasting Corpora-tion ORF), the EIB and the EBRD.

High-ranking representatives of both banks regard thedigitisation of Eastern European broadcasting as aworthwhile and workable business model. EBRD rep-resentatives pointed out to participants that EasternEuropean broadcasters should exploit the digital in-frastructure in order to be able to respond to tech-nological changes and safeguard the existing culturalheritage. The EBRD, they said, regarded digitisationas a way of opening up new potential sources of rev-enue, such as fees for the use of digital libraries, prod-uct placement and broadcasters’ own productions.Other sources could be the use of the digital infras-tructure for non-public purposes or the transmissionof programmes for foreign broadcasters. The EBU’sDirector General essentially endorsed those remarks.

The conference’s take-home message was clear:Eastern European public service broadcasters musturgently produce and transmit their programmes us-ing digital technology and bring their obsolete tape-based archives up to the latest technological stan-dards.• Press release of the Asia-Pacific Broadcasting Union (ABU)http://merlin.obs.coe.int/redirect.php?id=16220 EN

Cristina BachmeierInstitute of European Media Law (EMR), Saarbrücken/

Brussels

General Court: ECB’s refusal to grant accessto documents lawful

In a judgment of 29 November 2012, the GeneralCourt of the European Union (EGC) ruled that the re-fusal of the European Central Bank (ECB) to grant ac-cess to documents relating to the economic situationin Greece was lawful.

In 2010, a journalist asked the ECB to give her ac-cess to two documents dealing with the economic sit-uation in Greece. The first described the economicsituation in that country as of March 2010; the sec-ond dealt with transactions effected by a companyset up by the National Bank of Greece and its contentwas closely connected to that of the first document.The ECB refused to grant the journalist access to thetwo documents, giving as its reasons the protection ofthe economic policy of both Greece and the EuropeanUnion and therefore the protection of public interests.The journalist challenged the decision before the ECB,arguing that there was a compelling public interest inthe publication of the documents.

The ECB pointed out that it is obliged to refuse ac-cess to documents if the public interest may be un-dermined by their disclosure. No weighing up of that

public interest against an “overriding public interest”is provided for by EU law. The EGC also noted thatthe ECB had not made a manifest error in its assess-ment of whether access to the documents could begranted. Although the documents described the sit-uation of Greece as of March 2010 and the journal-ist did not make her request until October that year,the disclosure of the outdated documents could haveled to negative consequences since it could not bereasonably ruled out that market players would havemistakenly regarded the outdated information as stillvalid. According to the EGC, such an error mighthave had negative consequences on Greece’s accessto the financial markets and therefore have affectedthe proper conduct of economic policy in Greece andthe EU.• Press release of the General Court of the European Unionhttp://merlin.obs.coe.int/redirect.php?id=17783 EN

Gianna IacinoInstitute of European Media Law (EMR), Saarbrücken/

Brussels

NATIONAL

AL-Albania

KKRT Issues Warning on Advertising of Med-ical Treatment

The Keshili Kombetar i Radios dhe Televizionit (Na-tional Council of Radio and Television - KKRT) has is-sued a warning to radio and television broadcastersregarding the advertising of medical products. TheKKRT found that the broadcasters violate extensivelyagainst Albanian law.

According to Article 58 of the Law no. 8410, of30.9.1998, “On public and private radio and televisionin the Republic of Albania”, the broadcasting of adver-tising spots for medicine or medical treatment that isavailable only upon subscription is prohibited.

Based on this regulation, the KKRT has asked elec-tronic media outlets to stop broadcasting advertisingspots on medical treatment by different health insti-tutions. This demand has emerged after a period ofextensive advertising for several, mainly private hos-pitals and clinics, located both in Albania and abroad.The spots range from those for general hospitals tomore specific ones, including cosmetic surgery.

According to the KKRT, this practice offends againstthe legal disposition and the media should refrainfrom broadcasting the mentioned spots. The Coun-cil underlined in its warning that the main criteria they

IRIS 2013-1 5

will use regarding any complaint will be the correct im-plementation of the law and the license terms. In theopposite case, the Council stated that its next stepswould be in accordance with the law and sanctionsmight be imposed.

• KKRT-ja, kërkon zbatimin e ligjit për reklamat. (Press release of theKKRT of October 2012)http://merlin.obs.coe.int/redirect.php?id=16228 SQ

Ilda LondoAlbanian Media Institute

AT-Austria

Administrative Court Confirms “FacebookBan” for the ORF

On 22 October 2012, the Verwaltungsgerichtshof (Ad-ministrative Court - VwGH), which has supreme ad-ministrative jurisdiction in Austria, confirmed the so-called “Facebook ban” in the case of the Österreichis-cher Rundfunk (Austrian Broadcasting Corporation -ORF) and dismissed an action brought by the ORF asunfounded.

In spring 2012, the Kommunikationsbehörde Austria(KommAustria), the authority responsible for regulat-ing the ORF, established that the ORF’s provision ofa Facebook page constituted an infringement of theORF-Gesetz (ORF Act) (see IRIS 2012-3/9). The le-gal remedy lodged by the ORF with the Bundeskom-munikationssenat (Federal Communications Board -BKS), the supreme broadcasting authority, was un-successful, whereupon the ORF filed an action in theAdministrative Court and the Constitutional Court.

The Administrative Court gave as the reason for its de-cision the purpose of the rule that “(the provision of)such online services must, for reasons of competition,be the preserve of other media undertakings”. It wenton to say that the wording of section 4f(2)(25) of theORF Act (ban on co-operating with social networkingsites) prohibited the ORF from engaging in “any formof co-operation [...] that has the same effect as theprovision of a social networking service by the ORF it-self”. By using Facebook, it said, the ORF was able toexploit an existing popular global network, which wasprecisely what the legislature regarded as only beingcovered to a limited extent by the ORF’s public serviceremit. Links to or co-operation with social networkingsites were only allowed if there was a connection withits own “daily online news extracts”, so the complainthad to be dismissed as unfounded.

On 16 November 2012, the Verfassungsgerichtshof(Constitutional Court - VfGH) allowed the effect of thedecision to be suspended pending the outcome of the

ORF’s constitutional appeal. This enables the ORF tocontinue to operate the Facebook page for the timebeing. However, the VfGH stressed that its decisiondid not permit any conclusions to be drawn regard-ing the final ruling. If the constitutional appeal fails,the ORF’s Director-General will consider further stepsat the European level. Furthermore, the legislatureis to be urged to amend the ORF Act. It is pointedout that the broadcaster would be denied access toone of the world’s most important communicationsplatforms, which would constitute an unparalleled re-striction. It remains to be seen how the ConstitutionalCourt will rule on the merits of the case.

• Beschluss des Verwaltungsgerichtshofs vom 22. Oktober 2012 (Zl2012/03/0070-12) (Administrative Court decision of 22 October 2012(Case Zl 2012/03/0070-12))http://merlin.obs.coe.int/redirect.php?id=16213 DE

Martin LengyelInstitute of European Media Law (EMR), Saarbrücken/

Brussels

KommAustria Does not Regard Tennis DavisCup as a Premium Sports Competition

In a decision of 17 October 2012, the Austrianbroadcasting regulator Kommunikationsbehörde Aus-tria (KommAustria) dismissed a complaint by 13 pri-vate television broadcasters against the Österreichis-cher Rundfunk (Austrian Broadcasting Corporation -ORF). The case involved the transmission of tennismatches in the Davis Cup tie between Austria and Bel-gium on the ORF sports channel ORF Sport +.

According to section 4b(4) of the Gesetz über denÖsterreichischen Rundfunk (ORF Act), the ORF is pro-hibited from broadcasting so-called premium sportscompetitions on its sports channel, these competi-tions being defined as those given broad coveragein the Austrian media. The complainants were ofthe opinion that, given the earlier media reportingand the huge sporting interest in the aforementionedmatches, the ORF could have expected the event,which involved one team dropping down from theWorld Group to the relegation group, to attract con-siderable media attention.

In its reasons for the decision, KommAustria referredto a ruling by the Bundeskommunikationssenat (Fed-eral Communications Board) of May 2012, accordingto which “comparable media reporting in the past”should be consulted when classifying a sports com-petition as a premium event.

KommAustria first of all determined that not the en-tire Davis Cup but only individual meetings could beconsulted for comparison purposes, pointing out that,especially in the case of sports that involved an entirecompetition within a series and, above all, those that

6 IRIS 2013-1

resulted in promotion to the group above or relega-tion to the one below, particular consideration shouldbe given to the competition format, and therefore theactual standings of the participating teams. In orderto make a comparative assessment, it went on, the2009 Davis Cup tie between Austria and Chile shouldbe considered because it too decided on relegationfrom the World Group.

After assessing the media coverage of the meetingconcerned in comparison to premium sports competi-tions, KommAustria concluded that the extent of thenewspaper reporting in this case did not permit anyinferences to be drawn with regard to a general in-crease in media interest, noting that there had beenno significant pre-event and post-event reporting inthe print media.

An assessment of the television coverage made itclear that the extent of the reporting did not comeclose to what was necessary for the event to be clas-sified as a premium sports competition. The chan-nels ORF eins and ORF 2 had only run short reports onthe tie, and only one of the commercial channels hadbroadcast a short report each day.

• Bescheid der KommAustria vom 17. Oktober 2012 (KOA 11.263/12-016) (KommAustria decision of 17 October 2012 (KOA 11.263/12-016))http://merlin.obs.coe.int/redirect.php?id=16212 DE

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

Brussels

ORF’s Special-Interest Channels must be fedinto Analogue Networks

Following the media regulator KommAustria, the Bun-deskommunikationssenat (Federal CommunicationsBoard - BKS), Austria’s supreme broadcasting author-ity, reached the conclusion in its decision of 5 Novem-ber 2012 that television cable network operators mustfeed the special-interest channel ORF Sport + intotheir analogue networks.

Liwest, Austria’s second-largest cable network oper-ator, had up to then fed the sports channel into itsdigital cable network only, and KommAustria ruledthat ORF Sport + also had to be distributed in ana-logue networks in accordance with the “must carryrule” in section 20(1) of the Bundesgesetz über au-diovisuelle Mediendienste (Federal Audiovisual MediaServices Act - AMD-G). The legal remedy lodged withthe BKS by Liwest against this decision was dismissed.The BKS pointed out that the statutory rules wereclear and stated that “the cable network operator[had] no freedom to choose in what technical form itwould like to comply with its commitment”. The costsinvolved, it went on, were not disproportionately high.

Liwest reserves the right to appeal to the Constitu-tional Court or the Administrative Court. Following thedecision, the ORF appealed to all cable network opera-tors to feed ORF Sport + into their analogue networks,as Austria’s largest cable network operator (UPC Aus-tria) has done since July 2012.

• Bescheid des BKS vom 5. November 2012 (BKS decision of 5November 2012) DE

Martin LengyelInstitute of European Media Law (EMR), Saarbrücken/

Brussels

Action Brought against RTL for Being In-sulted as the “Monster from the Deep” Dis-missed

According to media reports, the Landesgericht Ko-rneuburg (Korneuburg Regional Court) dismissed on8 November 2012 an action brought against RTL by aman from Lower Austria. The plaintiff had been ac-cidentally filmed by the German TV broadcaster inNovember 2010 during his holiday on the Maldives,subsequently shown without his consent in the pro-gramme “Deutschland sucht den Superstar 2011 - Re-call” (Germany seeks 2011 superstar - Recall”), andwas referred to by one of the presenters as the “mon-ster from the deep”.

In order to avoid legal action, RTL paid the 70-year-oldplaintiff a lump sum of EUR 9,000. He subsequentlysubmitted a psychiatric report proving that he had suf-fered a mental illness as a result of the broadcast inwhich he had been insulted and requested the courtto award him a further EUR 16,000. However, thejudge held that the damages already paid were rea-sonable. Basing his decision on a comparison withsimilar defamation cases, he dismissed the action.The plaintiff’s lawyer announced his intention to ap-peal.

Cristina BachmeierInstitute of European Media Law (EMR), Saarbrücken/

Brussels

BA-Bosnia And Herzegovina

Approach to “Significant Value” Adopted

At its session held on 13 November 2012, the Coun-cil of the Communications Regulatory Agency (CRA)adopted the Code amending the Code on Commercial

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Communications (Code) in order to reflect the newlytaken approach to the legal understanding of a “sig-nificant value” of promoted goods and services. TheCode, as now amended, considers any inclusion ofgoods and services in the audiovisual or radio pro-gramme as product placement, regardless of theirvalue.

The Code has been in force since 1 January 2012.However, the application of provisions on productplacement was postponed until 1 January 2013 inorder to allow media service providers the neces-sary time to prepare for the implementation of sucha major novelty in the regulatory framework (seeIRIS 2012-1/9).

The Code originally considered the inclusion of goodsand services that have been provided free of chargewith the objective of their inclusion in an audiovisualor radio programme only as product placement if thegoods and services involved are of significant value.The CRA was tasked with adopting a normative actdefining the exact requirements of a significant valuein the course of 2012. In line with this obligation,the CRA had collected and analysed data on actualproduction budgets as reported by the media serviceproviders, as well as the approaches taken in otherEuropean countries. The analysis has shown that thebest approach considering the specific situation in theaudiovisual market in Bosnia and Herzegovina, in par-ticular having in mind average production budgets,would be to deem the value of goods and services ir-relevant and to consider any supply of props as prod-uct placement. In CRA’s view, only such a wide ap-proach would guarantee the fundamental principlesgoverning product placement such as safeguardingeditorial independence, the avoidance of undue pro-motional effect, of undue prominence and the obliga-tion to inform the viewers. The proposal was offeredto public consultations and was not met with signifi-cant opposition.

The amended Code shall apply from 1 January 2013.

• Kodeksa o komercijalnim komunikacijama (Code on CommercialCommunications)http://merlin.obs.coe.int/redirect.php?id=16198 BS

Maida CulahovicCommunications Regulatory Agency

BG-Bulgaria

Report on the Proportion of European Worksand Independent Productions

On 1 November 2012, the Council for Electronic Me-dia (CEM) published a report on the proportion of Eu-ropean works in Bulgarian television broadcasting for

the year 2011. Article 16 of the Directive for Au-diovisual Media Services (AVMSD) requires broadcast-ers to reserve a majority proportion of their trans-mission time, excluding the time appointed to news,sports events, games, advertising, teletext servicesand teleshopping, for European works. Article 17AVMSD requires broadcasters to reserve a minimumproportion (at least 10%) of their transmission time,excluding the time appointed to news, sports events,games, advertising, teletext services and teleshop-ping, for European works created by independent pro-ducers.

The summary for the calendar year 2011 containsdata of 47 television programmes with national cover-age and 28 linear media services providers. A prelimi-nary letter of request had been sent to all linear mediaproviders. All, except for three, have responded to theletter.

27 programmes comply with Art. 16 AVMSD and thestipulated majority of European works in their overallbroadcasting time. According to the report, the pro-portion of independent productions (Art. 17 AVMSD)has been adhered in 23 programs.

In only four of the television programmes, the per-centage of time for European works, created by pro-ducers who are independent of broadcasters is belowthe required 10%. Two of them are programmes of theprovider Fox International Channels. In its response,the provider "Fox International Channels Bulgaria" hasexplained the low percentage of European indepen-dent works in the programmes "Fox Crime" and "FoxLife" was due to their specificity, (the programs arespecial-interest channels, respectively for the "civil-legal and criminal-legal system in the United States”and “the American way of life"). In this context, thereport emphasized Arts. 16 and 17 AVMSD, which re-quire the designated minimal time for European (inde-pendent) productions in television programmes onlywhere the proportion can be achieved practically andby appropriate means.

• ÄÎÊËÀÄÎ òíîñíî : ïðèëàãàíåòî íà ÷ëåíîâå 16 è 17îò Äèðåêòèâàòà çà àóäèîâèçóàëíè ìåäèéíè óñëóãè çà2011463476464470475460, ðåñïåêòèâíî , ÷ë .19460 îò Çàêîíà çàðàäèîòî è òåëåâèçèÿòà – åâðîïåéñêè ïðîèçâåäåíèÿ âïðî-ãðàìèòå íà äîñòàâ÷èöèòå íà ëèíåéíè ìåäèéíè óñëóãè (Re-port of the CEM of 1 November 2012)http://merlin.obs.coe.int/redirect.php?id=16199 BG

Raina NikolovaNew Bulgarian University

CZ-Czech Republic

Amendment of the Broadcasting Act

The Parliament of the Czech Republic approved an

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amendment of the Broadcasting Act concerning theincreased volume of commercials compared to therest of television programming. For a long time, theCouncil for Radio and Television Broadcasting (theCouncil) has received a wide range of complaints fromviewers dealing with increased commercial sound vol-umes during the broadcasting of commercials.

According to the amended Broadcasting Act, it is theresponsibility of the Council to authoritatively inter-vene in any case of significant volume increases dur-ing television advertising. Previously, the Councilcould not take any such action against broadcasters,because the broadcasters were not obliged to main-tain the same volume level for all parts of their pro-gramming.

The new legislation is based on a comparison of soundintensities of the transmission before and after adver-tising. Due to the practical application of the provi-sions, particularly the technical aspects of measuringsound intensity, the legislation authorises the Councilto determine an implementing regulation for furtherdetails.

A television broadcaster now has to ensure that thesound volume of advertising, teleshopping and spon-sorship does not increase when compared with pro-grammes before and after parts of the programmecontaining commercial communications. This obliga-tion applies to any audio-visual means of separatingadvertising and teleshopping from other parts.

• Zákon ze dne 26. ríjna 2012, kterým se mìní zákon è. 231/2001 Sb.,o provozování rozhlasového a televizního vysílání a o zmìnì dalsíchzákonù, ve znìní pozdìjsích pøedpisùí, (Act No. 406/2012 Sb. amend-ing the Act 231/2001 Coll., on radio and television broadcasting andto amend other Acts, as amended, 26 October 2012)http://merlin.obs.coe.int/redirect.php?id=16200 CS

Jan FucíkMinistry of Culture, Prague

DE-Germany

Administrative Court Criticises Award ofThird-party Broadcasting Time

On 23 August 2012, the Verwaltungsgericht (Ad-ministrative Court) in Neustadt an der Weinstrasseruled that the award of third-party broadcasting timeby theRhineland-Palatinate Landeszentrale für Medienund Kommunikation (Regional Media and Communica-tions Agency - LMK) in the case of the main broad-caster Sat.1 SatellitenFernsehen GmbH (Sat.1) wasunlawful. It criticised virtually the entire selection andlicensing procedure, especially owing to the failure toinvolve Sat.1.

According to section 26(5) of the Staatsvertrag fürRundfunk und Telemedien (Inter-State Agreement onBroadcasting and Telemedia - RStV), Sat.1 is obligedto provide broadcasting time for independent thirdparties. Pursuant to section 31(4), first sentence,RStV, the LMK invited tenders for this broadcastingtime, which was - lawfully - divided into four broad-casting windows based on duration and time of day.Against the wishes of Sat.1, the third-party broadcast-ing licences were awarded to the current licensees,News and Pictures GmbH & Co. KG and DCTP Entwick-lungsgesellschaft für TV-Programm mbH.

The Administrative Court considered this procedureunlawful for several reasons. In particular, the LMKhad disregarded the requirement to reach agreementwith the main broadcaster as required by section31(4), third sentence, RStV. The efforts to agree onthe selection with Sat.1 having failed, section 31(4),third to fifth sentences provides for a multi-stage se-lection procedure, which must be strictly adhered to.The LMK, the court said, had not taken sufficientaccount of Sat.1 in that procedure and accordinglybreached the company’s rights under the RStV to beconsulted. Proper involvement in the selection proce-dure was, it pointed out, vitally important for ensuringthe freedom of broadcasting of Sat.1 as enshrined inArticle 5(1), second sentence, of the Grundgesetz (Ba-sic Law - GG) and its freedom of ownership as guaran-teed by Article 14 GG.

Furthermore, the court went on, awarding the licenceto DCTP was unlawful as the strict requirement in sec-tion 31(5) RStV to reach agreement on the appro-priate funding of the third-party programme had notbeen met. In connection with the award of the licence,the LMK had provided for the continuation of the re-muneration agreement for the current licence periodbetween Sat.1 and DCTP, but Sat.1. had consideredthe payment based on that agreement unreasonable.The LMK had failed to check whether the remunera-tion paid thus far was appropriate. Section 31(5) and(6) RStV did not empower the LMK, as a State body, toimpose an agreement based on private law, as it haddone in the instant case, as that was not compatiblewith the freedom of contract enshrined in Article 2(1)GG.• Urteil des VG Neustadt an der Weinstraße vom 23. August 2012 (5K 417/12.NW) (Judgment of the Neustadt an der Weinstrasse Admin-istrative Court of 23 August 2012 (5 K 417/12.NW))http://merlin.obs.coe.int/redirect.php?id=16218 DE

Martin RuppInstitute of European Media Law (EMR), Saarbrücken/

Brussels

“Tag des Glücks” Show Taken off Air follow-ing Ban

The TV show “Tag des Glücks” (“Day of Luck”) run by

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the lottery organisation Süddeutsche Klassenlotterie(SKL) was taken off air in October 2012. This was theresponse of the companies involved to several deci-sions of the Kommission für Zulassung und Aufsicht(Licensing and Monitoring Commission - ZAK), whichhad criticised the show and stopped its broadcastingon several occasions in the past few years.

The ZAK had repeatedly found that the programmehad infringed the ban on the public advertis-ing of gambling pursuant to section 5(3) of theGlücksspielstaatsvertrag (Inter-State Treaty on Gam-bling - GlüStV), stating that the advertorial nature ofthe programme was clear from the numerous timesthe lottery was mentioned during the presentationand from the extremely frequent on-screen displaysof the relevant logos. The ZAK also criticised the factthat each contestant had to possess an SKL lotteryticket.

However, the lottery organisation has not completelygiven up disseminating the show: the hitherto last edi-tion of the programme was streamed on the SKL web-site in early November 2012 and has been availablethere in full length ever since.

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

Brussels

Packages of Measures Decided by RBB to In-crease Licence Fee Revenues

In the late summer of 2012, Rundfunk Berlin-Brandenburg (Berlin-Brandenburg Broadcasting -RBB) submitted to its statutory bodies a final reporton the “Package of measures for increasing the po-tential number of licence payers in Berlin”. The aimis to induce those consumers of broadcasting serviceswho possess operational radio and television sets, buthave not paid the licence fee up to now, to complywith this requirement.

The implementation of the package of measures wasproposed in 2008 by the Kommission zur Ermittlungdes Finanzbedarfs der Rundfunkanstalten (Commis-sion for Establishing the Financial Requirements ofBroadcasters - KEF). RBB submits annual reports onthe implementation of its measures. With regardto the Berlin market, it has been able to establishthat the city has benefited from, albeit low, economicgrowth. However, as the German capital suffers fromhigh unemployment RBB’s transmission area has thelargest number of people who are exempt from thepayment of licence fees. In order to increase the sub-scriber base in Berlin, RBB carries out numerous mea-sures to raise public awareness. For example, it hasheld a “TV licence week” in the Spandau district, dur-ing which citizens were handed leaflets and shown ad-vertisements and advertising banners on the internet

as well as a TV commercial in the waiting rooms ofthe Spandau authorities. In addition, inhabitants wereprovided with information on the licence fees at streetstalls, and some 800 new devices were registered asa result of this measure. Furthermore, RBB has cre-ated the post of Kommunikationsbeauftragter (Com-munications Commissioner) to handle the marketingaspects of collecting fees and contributions. He/sheis responsible for all kinds of marketing measures onthe issue of the requirement to pay the licence fee aswell as for the operation of the public service broad-caster’s fee website, which also involves sharing infor-mation with the other regional broadcasters. Anothermeasure implemented by RBB has been to step uplicence fee advertising in its programme schedule.

RBB has been able to increase the number of regis-trations of new types of broadcast receiving devices(e.g., internet enabled PCs or mobile telephones -see IRIS 2007-1/11) by approximately 11,000. Guidedtours of its broadcasting facilities, during which visi-tors were informed about the requirement to pay li-cence fees and how the money is used, are also saidto have helped to raise the number of new registra-tions.

Compared with 2010, RBB was able to post an in-crease in revenues of around EUR 270,000 in 2011.The package of measures is due to be adapted to thenew licence “contribution” model.

Leyla RockInstitute of European Media Law (EMR), Saarbrücken/

Brussels

Government Decides to Introduce Compul-sory Registration for Cinema Films

On 31 October 2012, the German government de-cided to amend the Bundesarchivgesetz (FederalArchive Act) to make it compulsory for producers andco-producers of German cinema films to register themin a Federal Archive database.

The aim of this obligation to register is to safeguardthe national film heritage. According to the FederalGovernment, films are not only economic but also cul-tural goods and comprehensive registration is accord-ingly in the overall public interest. Up to now, copiesof films funded with public money have had to be de-posited with federal and regional (Land) film fundinginstitutions, but the Federal Government believes thatthis is no longer sufficient and that it is necessaryfor all German films without exception to be centrallyarchived.

Registration must take place within twelve months ofa film being exhibited for the first time. This is coupledwith the obligation to let the Federal Archive knowwhere an archivable copy of a film is located.

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A precondition of the obligation to register a film isthat it must be intended for public exhibition in a cin-ema or be shown at an important festival or awardsceremony. Films are considered German if their mak-ers are established in Germany. Cinematographicworks in which music predominates will not be reg-istered, as copies of them must already be depositedwith the German National Library. The Federal Gov-ernment estimates the total number of registrationsat 5,000 a year.

A fine of up to EUR 10,000 can be imposed for failureto comply with the requirement to register a film. De-tails of the procedure and the form of the compulsoryregistration are to be laid down in a statutory order bythe Staatsminister für Kultur und Medien (Minister ofState for Culture and Media).

The draft law was forwarded to the Bundesrat (FederalCouncil) for its opinion on 2 November 2012.

• Pressemitteilung der Bundesregierung vom 31. Oktober 2012 (Fed-eral Government’s press release of 31 October 2012)http://merlin.obs.coe.int/redirect.php?id=16215 DE• Gesetzentwurf der Bundesregierung (Federal Government’s draftlaw)http://merlin.obs.coe.int/redirect.php?id=16216 DE

Martin RuppInstitute of European Media Law (EMR), Saarbrücken/

Brussels

Bundestag Votes additional EUR 100 Millionfor Culture

At its final meeting on the culture budget on 9 Novem-ber 2012, the Budget Committee of the Bundestagvoted an additional EUR 100 million for culture, an in-crease in funding of about eight per cent.

This means that the culture budget has been signif-icantly increased for the eighth year running. Ac-cording to the Staatsminister für Kultur und Medien(Minister of State for Culture and Media), this cannotbe taken for granted given the current public sectorausterity measures and the constitutionally mandated“debt ceiling”.

The total budget will amount to EUR 1.28 billion. Thepromotion of film production in Germany will bene-fit significantly from these additional resources. TheDeutscher Filmförderfonds (German Film Fund) will begiven an increase of EUR 10 million to EUR 70 mil-lion a year (on the recent extension of the GermanFilm Fund, see IRIS 2012-10:1/9). The Kulturstiftungdes Bundes (Federal Cultural Foundation), which re-ceives aid for films, the new media and cross-sectionalprojects, will also be supported to the tune of an addi-tional EUR 5 million, thus bringing the total to EUR 40million.

• Pressemitteilung des Staatsministers für Kultur und Medien vom 9.November 2012 (Press release of the Minister of State for Culture andMedia of 9 November 2012)http://merlin.obs.coe.int/redirect.php?id=16217 DE

Martin RuppInstitute of European Media Law (EMR), Saarbrücken/

Brussels

FI-Finland

ISP not Granted Leave to Appeal in The PirateBay Case

On 29 October 2012, the Supreme Court of Finlanddid not grant the telecommunications and ICT ser-vice provider Elisa Corporation leave to appeal in thecase concerning The Pirate Bay (TPB). In the after-math of the Swedish TPB case, an interim injunctionwas sought against Elisa in May 2011. The CopyrightInformation and Anti-Piracy Center (CIAPC) filed theapplication on behalf of the Finnish National Groupof International Federation of the Phonographic Indus-try (IFPI). The aim was to prevent the continuance ofcopyright infringements.

The application was based on Section 60c of theFinnish Copyright Act (404/1961): According to para-graph 1, a court may, in trying a case and upon re-quest of a rightsholder, order an intermediary to dis-continue the making available of allegedly copyright-infringing material to the public (injunction to discon-tinue). It is to be regarded reasonable in view of therights of the alleged infringer, the intermediary, andthe author. Paragraph 2 provides for the situationwhere legal action against the alleged infringer (ref. in§60b) is not yet taken. Then, a court may issue an in-terim injunction. It may be issued without hearing thealleged infringer if deemed necessary for the urgencyof the case. The injunction remains in force until fur-ther notice. The alleged infringer shall be reserved anopportunity to be heard without delay and the courtshall decide whether the injunction remains in forceor is cancelled. (Para. 3) The injunction shall not prej-udice the right of a third person to send and receivemessages. It shall enter into force when the applicantprovides the security to the execution officer. The in-terim injunction shall expire if a legal action has notbeen taken within one month from its issuing. (Para.4)

On 26 October 2011, the Helsinki District Court ruledin favor of IFPI Finland. An interim injunction wasissued and Elisa was obliged under the penalty ofa fine (EUR 100,000) to remove TPB domains fromits servers and to block access to IP-addresses usedby TPB. The measures regarding subscriptions were

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taken in January 2012 following the enforcement or-der. Elisa appealed the ruling of the district court, buton 15 June 2012, the Helsinki Court of Appeal did notalter the decision. An interim injunction was foundnecessary in the view of the evidence on the effective-ness of legal measures and the accessibility of the al-leged infringer. The court also stated that the interiminjunction may become long term if the defendants inthe main issue cannot be summoned. That howeverdoes not per se render it unlimited in duration. Elisa fi-nally requested leave to appeal to the Supreme Courtto obtain a judicial precedent, but it was not granted.

• Helsingin käräjäoikeuden päätös, 26/10/2011, No 41552 (Decisionof the District Court of Helsinki, 26 October 2011, No 41552)http://merlin.obs.coe.int/redirect.php?id=16227 FI• Helsingin hovioikeuden päätös, 15/06/2012, No 1687 (Decision ofthe Court of Appeal of Helsinki, 15 June 2012, No 1687) FI• Korkeimman oikeuden päätös, 29/10/2012, No 2187 (Decision ofthe Supreme Court, 29 October 2012, No 2187) FI

Anette Alén-SavikkoInstitute of International Economic Law/ University of

Helsinki, Facing the Coordination Challenge/Communication Research Centre, University of

Helsinki

FR-France

Absence of Liability on the Part of an Inter-net Site Offering Access to Catch-up TV Pro-grammes via Deep Hypertext Links

In a decision delivered on 31 October 2012 the Courtof Cassation rejected the appeal by the M6 groupagainst the decision of the court of appeal rejectingall its applications in its dispute with the companythat operates the TV-replay.fr site, which is an on-line guide to catch-up TV sites (see IRIS 2011-6/17).The M6 group, which operates a number of channelsincluding M6 and W9 and their catch-up TV servicesM6replay and W9replay, complained that TV-replay.frwas giving direct access to its programmes by meansof deep hypertext links without first directing viewersto the home pages of M6replay and W9replay. M6claimed this violated the general conditions for usingits catch-up TV services and infringed its rights as theoriginator and producer of a database, and felt thatthe behaviour of TV-replay.fr constituted unfair com-petition and free-riding.

The Court of Cassation firstly approved the court ofappeal’s acceptance that merely putting on-line thegeneral conditions for using the M6 and W9 sites,which could be accessed by means of a half-concealedtab in the lower part of the screen, was not enough toplace the users of the services offered under contrac-tual obligation, and that the letter of formal notice the

M6 group had sent to the defendant company, whichedited the TV-replay.fr site, requiring it to observe thegeneral conditions for use did not give rise to any con-tractual obligation on the part of the latter to complywith them.

The Court of Cassation also found that the court of ap-peal had been right to state that the M6 group’s pro-duction companies, which held the rights for the pro-grammes broadcast, could not collectively claim theinfringement of undifferentiated rights, and that theydid not establish which of them held the rights for theworks the defendant company was making accessibleon its TV-replay.fr site after they had been broadcaston television. The Court also rejected the argumentof infringement of the rights of the M6 group in its ca-pacity as producer of databases. Lastly, the decisionnotes that users of the disputed site were directedto the programme sought, which was presented in anavigation window on the channels’ catch-up TV sitesgiving access to all the functions of the sites and totheir advertising banners. The court of appeal foundthat the complaint, based on the circumvention of thenormal navigation process, was unfounded and thatno proof of any free-riding activity had been provided,and used this as the legal grounds for justifying its de-cision. The Court of Cassation’s decision puts an endto the dispute, which nevertheless raises the questionof the means available to rightsholders to oppose ac-cess to their content via hypertext links.

• Cour de cassation (1re ch. civ.), 31 octobre 2012 - Société MétropoleTélévision (Court of Cassation (1st civil chamber), 31 October 2012 -the company Métropole Télévision) FR

Amélie BlocmanLégipresse

Lawfulness of Clause in Contract for Produc-tion of a Film Authorising its Termination onthe Grounds of Failure to Obtain Financing

An unusual decision by the court of appeal in Parison 16 March 2012 deserves mention, in that it givesdetails of the parameters of the obligation to use in-cumbent on the producer of an audiovisual work asdefined in Article L. 132-27 of the French IntellectualProperty Code (Code de la Propriété Intellectuelle -CPI), and more specifically its reference to an “obli-gation of production”. The actual production of a filmdoes indeed depend on the possibility of the producerfinding the necessary financing.

In the case at issue, two directors had been entrustedwith producing a full-length animated film adaptationof the musical tale “Piccolo, Saxo et Compagnie”, andhad signed a contract ceding their rights as writer-directors to a production company. The contract wassuspended the following year because of financial dif-ficulties alleged by the latter. Despite the suspension,

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the producer signed a separate contract ceding copy-right with one of the writer-directors covering a setof graphic creations. Six months later, the produc-tion company informed the writers that the projectwas definitively dropped and that the contract ced-ing their rights was terminated. Four years later, how-ever, the film “Piccolo, Saxo et Compagnie”, producedwith the intervention of two other co-producers, wasbeing shown in cinemas. The directors therefore sum-moned not only the co-writers of the audiovisual workbut also the production companies on the grounds ofinfringement of copyright, failure to observe the obli-gations of good faith and contractual fairness, and theabusive termination of their contracts.

The appellant parties claimed mainly that the clausein their writers’ contract according to which it couldbe terminated “if the producer was unable to obtainthe necessary financing to cover the cost of the filmand start production” was void because it was potes-tative. (Article 1174 of the French Civil Code indeedprovides that “An obligation is void where it was con-tracted subject to a potestative condition on the partof the one who binds himself.”) They claimed that thetermination was founded on fallacious grounds, as noproof was presented of the alleged impossibility ofsourcing finance to cover the cost of the film up tothe production stage. The court of appeal found thatwhile a purely potestative condition was void wherethe performance of the obligation did not depend onthe desire of just one of the contracting parties, therewas no such condition in the case at issue, inasmuchas the entire financing of the film was not dependenton the production company summoned to appear incourt but on a third party it had to convince to providesupport. The court analysed in detail the chronologyof the facts and reached the conclusion that the pro-ducer, despite the efforts made, had not been able toobtain the financing necessary for covering the cost ofproducing the film as it had been developed, and thatno proof had been provided in either court of the exis-tence of the alleged fraudulent manoeuvring. The ter-mination of the writer-directors’ contracts was there-fore not abusive. One of the appellant parties whohad also signed a separate contract covering all thegraphic creations also claimed that the terminationof the writer-director contract resulted in the termi-nation of the contract covering the graphic elements.The Court upheld the judgment in its rejection of thisclaim, considering that the aforementioned contractswere legally independent and did not have the sameobject.

• Cour d’appel de Paris (pôle 5, ch. 2), 16 mars 2012 - Olivier B. etLaurent B. c. Haut et Court et a. (Court of appeal of Paris (centre 5,chamber. 2), 16 March 2012 - Olivier B. and Laurent B. v. Haut etCourt et al.) FR

Amélie BlocmanLégipresse

Government Considers Possible Conver-gence of CSA and ARCEP

On 21 August 2012 the Prime Minister announcedhe was considering the convergence of the au-diovisual regulatory authority (Conseil Supérieur del’Audiovisuel - CSA) and the electronic communica-tions and postal authority (Autorité de Régulation desCommunications Electroniques and des Postes - AR-CEP). He has instructed a number of Ministers to sendhim proposals by the end of November on the changesin legislation and regulations that would be necessary.There is indeed no doubt that as audiovisual content isbeing increasingly shown on fixed and mobile Internetdevices it is necessary to consider the effectivenessof the methods of regulating electronic communica-tions and the audiovisual scene. At the moment, theterrestrial broadcasting of audiovisual programmes iscovered by regulation on content, one of the purposesof which is to ensure quality and diversity, whereascontent circulated via the Internet is covered by regu-lations that are more limited and sometimes inappro-priate.

The two authorities each submitted their position onthe issue to the Prime Minister in October. For AR-CEP, the main issue is the need to adapt regulationof the audiovisual scene, as instituted by the Act of30 September 1986. It believes there are three mainpossible hypotheses. The first consists of retainingstrong regulation of audiovisual content, in the spiritof cultural exception, but based on new foundationstaking into account the upheavals caused by the Inter-net. In this case, the missions and tasks of the audio-visual regulator and those of the electronic commu-nications regulator would remain very disparate andthere would be no real justification for convergence ofthe two authorities. On the other hand, the Author-ity found that it might be worth adopting legislationto create a single body for the two regulators, com-prising all or some of the members of each, in orderto deal with areas of common interest and to havedecision-making powers. In the second scenario, AR-CEP would be responsible for regulating the techni-cal and economic aspects of the two sectors and theCSA would be responsible for regulating audiovisualcontent. The third scenario involved favouring mainlyeconomic regulation of the stakeholders in the au-diovisual sector. Merging the authorities would thenmake sense, but it would be preferable for the author-ity created in this way to have the right to claim com-petitive rights and incorporate all or part of the mis-sions for managing the broadcasting spectrum cur-rently in the hands of the national frequency agency(Agence Nationale des Fréquences). This would bringit close to the United Kingdom’s OFCOM. In all threehypotheses, ARCEP notes that the element of audiovi-sual regulation involving cultural exception would de-pend more particularly on the conclusions of the mis-sion entrusted to Pierre Lescure.

IRIS 2013-1 13

For its part, the CSA has presented two scenarios ofpossible evolution. The first consists of gradual con-vergence with ARCEP, in two separate stages. Thiswould involve firstly keeping the two present author-ities separate but creating a joint regulatory bodywith decision-making powers, whose members wouldcome from both authorities. Indeed one possibilitywould be for all the members of both authorities to bemembers of the new joint body. This new body woulddeliberate on matters of common interest, such asmanagement of the spectrum, economic regulation,and the regulation of on-line services, which could bedefined by legislation. The second stage would in-volve setting up a single authority in two parts, one forcontent and diversity, and one for infrastructures andnetworks, to be chaired by a single person. The CSAbelieves convergence of this kind would have manyadvantages - it would facilitate the optimisation of theoperational management of frequencies, it would im-prove the broadcasting of content on fixed and mo-bile data networks, it would provide an answer to thequestion of identifying which authority was competentto deal with disputes involving difficulties in accessingon-demand audiovisual media services (on-demandAMSs), and it would ensure that the financing of au-diovisual and cinematographic production was takeninto account when implementing the principle of thenetworks’ neutrality. The second, more radical, sce-nario proposed by the CSA in its report would consistof creating a single institution forming a single unit.The CSA nevertheless observed that there was con-siderable opposition to this option, which might ap-pear premature. The main points raised involved therisk of economic and competition issues taking prece-dence over aspects relating to culture and society.

In the light of these conclusions, the Governmentshould make an announcement soon on the future ofthe plans for convergence.

• ARCEP, Réflexions sur l’évolution, à l’ère d’internet, de la régulationde l’audiovisuel et des communications électroniques et sur ses con-séquences, octobre 2012 (ARCEP, Thinking on the evolution, in theage of the Internet, of the regulation of the audiovisual scene andelectronic communications, and on its consequences, October 2012)http://merlin.obs.coe.int/redirect.php?id=16224 FR• CSA, Contribution à la réflexion sur l’évolution de la régulation del’audiovisuel et des communications électroniques, octobre 2012, 16pages (CSA, Contribution to thinking on the evolution of the audiovi-sual scene and electronic communications, October 2012, 16 pages)http://merlin.obs.coe.int/redirect.php?id=16234 FR

Amélie BlocmanLégipresse

CSA Takes up the Issue of Scripted Reality

The audiovisual regulatory authority (ConseilSupérieur de l’Audiovisuel - CSA) has announcedthat, starting on 19 November 2012, it will hold hear-ings of the professionals concerned (producers, TV

channels, scriptwriters, authors’ societies) regarding“scripted reality” programmes. The first broadcast ofthis type, “Le jour où tout a bascule”, which recon-structs stories based on true events, was broadcaston the public-sector channel France 2 in July 2011.Since then this inexpensive format, combining fic-tion, news and reality television, is presented on adaily basis on a large majority of channels, in boththe private and public sectors, giving rise to someconcern among professionals. The question currentlyfacing the CSA is in fact whether these programmesshould be considered as fiction, and be countedas such in the channels’ broadcasting quotas andreceive aid from the national cinema centre (CentreNational du Cinéma - CNC). There is no agreement.On one hand, fiction professionals plead in favour ofscripted reality not being recognised as fiction, as thiswould result in a drop in orders for stock programmes(fiction programmes, documentaries and animatedfilms) from the channels. Some channels, includingTF1, declare their scripted reality broadcasts to theCSA as fiction. Whereas one of the CSA’s membershas in fact declared in favour of these programmesbeing included in the channels’ quotas for fiction,the chair of the CSA’s committee on audiovisualproduction has recalled that the CSA considers eachprogramme individually when deciding what may beclassed as a fiction work, i.e. a work with writers,directors and actors. The committee also disregardsthe quality of the works. The Minister for Culture andCommunication has for her part pointed to anotherissue by affirming that scripted reality has no placeon public-service television. The position of the CSAon the matter is awaited more eagerly than ever.

Amélie BlocmanLégipresse

GB-United Kingdom

Competition Appeal Tribunal Decision on PayTV

The UK Competition Appeal Tribunal, a specialist courthearing appeals from the decisions of the competitionauthorities, has published its judgment relating to thedecision of the communications regulator, Ofcom, toimpose a wholesale must-carry remedy on Sky. Thisrequired Sky to offer wholesale its Sky Sports 1 and2 channels to rival pay TV retailers at a price set byOfcom (see IRIS 2010-5/26). Appeals were enteredagainst the decision by Sky, Virgin Media, BT and thePremier League.

Sky appealed on three grounds. First, that Ofcom hadno power to intervene in the Pay-TV market as it was

14 IRIS 2013-1

concerned with retail competition rather than com-petition in the provision of licensed services or con-nected services, as set out in the CommunicationsAct 2003. The Tribunal rejected this argument, decid-ing that the latter phrase includes retail competition.Second, Sky argued that, in identifying the competi-tion concerns, Ofcom had failed to adhere to an ap-proach based on competition rules under EU law andthe Competition Act 1998. This argument was also re-jected by the Tribunal, which held that Ofcom was notrequired to apply those rules (and in particular thoserelating to abuse of a dominant position) in exercisingits powers under the Communications Act.

Sky’s third argument was that Ofcom’s findings inrelation to Sky’s alleged practices of failing to en-gage constructively with other retailers and withhold-ing wholesale supply, were unfounded. The Tribunalexamined the evidence relating to negotiations withrival retailers in considerable detail, and found thatit had been misinterpreted by Ofcom and that someof Ofcom’s key findings of fact were inconsistent withthe evidence. The Tribunal found that one the wholeSky did engage constructively with other retailers, de-spite having a strong preference for self-retailing. Itthus upheld Sky’s third argument and allowed the ap-peal. In view of this decision, the Tribunal did not findit necessary to examine grounds of appeal raised byother parties.

• British Sky Broadcasting Limited, Virgin Media, The Football Associ-ation Premier League and British Telecommunications plc v. Office ofCommunications, [2012] CAT 20, 8 August 2012http://merlin.obs.coe.int/redirect.php?id=16196 EN

Tony ProsserSchool of Law, University of Bristol

HU-Hungary

Major Private Broadcasters Launch newChannels

In October 2012, the RTL Group’s new channel, RTLII, as RTL Klub’s twin channel, was launched in Hun-gary and was followed shortly in November by Su-perTV2, the twin channel of TV2, the second largestcommercial broadcasting channel in Hungary. In re-cent years, the Hungarian programme selection hasgrown continuously as part of the provider’s economicgrowth. Typically, this meant new channels ownedby the mother company registered outside Hungary,such as Film+, Sorozat+ or Cool TV by the RTL Group,or Fem3 and Pro4 by TV2. The smaller providers fol-lowed suit.

Audience data collected by Nielsen Audience Mea-surement Kft. shows that in 2011 the RTL Group and

TV2 together reached 38.8% of television audiencesin Hungary, down significantly from the 67.3% reg-istered in 2000. The reason behind the drop in theshares of the two largest commercial stations with na-tionwide coverage is the rise of special-interest chan-nels targeting niche audiences. Accordingly, the own-ers of the RTL Group and TV2 decided to launch theirown new channels. As a result, viewers desertingthe two nationwide stations ultimately remained ”inhouse” and continued to generate revenues for thetwo players in Hungarian broadcasting.

As a new development the startup stations stick totheir original name (RTL Klub - RTL II; TV2 - SuperTV2).Both companies have made a commitment to keep-ing and expanding the brand. Apart from the nameitself, key programming and widely recognized faceswill certainly lay bare the connection between the re-spective channels and any failure of the new channelswould harm the RTL Group or TV2 brand as a whole.

The launch of the two new channels also indicates theongoing process of change in broadcasting businessmodels. RTL Klub and TV2 continue to be offeredfree of charge via the analogue terrestrial platformand thus do not yield any revenue from the alterna-tive platforms of cable, satellite, or IPTV, wheras RTLII and SuperTV2 benefit from household fees paid tothe cable/satellite operators. Hence, the broadcast-ers build their operation increasingly on more reliablehousehold fees and no longer purely on rather unpre-dictable advertising revenues.

From the perspective of the providers, however, thetwo new stations will offer the major benefit of be-ing registered outside Hungary and thus complicatingthe regulation by the Hungarian Media Council. Theproblem is hardly new. The majority of Hungarian-language channels are now operated from headquar-ters registered outside the country.

Gábor PolyákMertek Media Monitor

IE-Ireland

Psychic Readings Live in Repeated Breachesof Broadcasting Code

At their September and October 2012 meetings, theCompliance Committee of the Broadcasting Authorityof Ireland (BAI) upheld a series of complaints madeby viewers of Psychic Readings Live, which is broad-cast by TV3. The complaints were made in accor-dance with section 48 of the Broadcasting Act 2009and claimed that the broadcasts breached a numberof sections of the BAI General Commercial Communi-cations Code (see IRIS 2011-7/29).

IRIS 2013-1 15

Commercial communications for fortune tellers andpsychic services are permitted under section 8.10 ofthe BAI General Commercial Communications Code,provided that the service is clearly identified as anentertainment service (section 8.10.1). Such pro-grammes are prohibited from making claims pertain-ing to matters of health (section 8.10.4) or claims thatpresenters make contact with deceased persons (sec-tion 8.10.3). Any claims relating to the prediction offuture events must be clearly indicated as a matter ofopinion and not as a matter of fact (section 8.10.2).Commercial communications of this nature must alsobe prepared with a sense of responsibility both to-wards the individual and to society and shall not prej-udice the interests of either (section 3.1).

The programme, which takes live calls from membersof the public, was aired for the first time in June 2012and was the subject of six separate complaints relat-ing to seven separate broadcasts during the periodfrom 21 June 2012 to 27 August 2012. The BAI upheldthree complaints under section 8.10.4 of the Code re-lating to claims pertaining to matters of health. Theserelated to broadcasts where:

- the presenter told a caller she was prone to depres-sion;

- the presenter told a caller she would conceive twinsand further future pregnancies were also predicted;and

- the presenter addressed a caller’s query regardingbreast cancer test results she was awaiting by usingtarot cards.

The BAI accepts that there exists an entertainment in-dustry that revolves around so-called fortune tellersand psychics. The programme now includes ascrolling text at the bottom of the screen indicat-ing that “all statements are matter of opinion notfact” and it is also identified as an “EntertainmentService” in the top left corner of the screen. How-ever, in upholding specific complaints under sections8.10.1 and 8.10.2 of the Code, the Compliance Com-mittee held that where the presenter makes persis-tent and repeated on-air claims regarding their abilityor accuracy in predicting the future, these references,when taken as a whole, undermine and contradict thescrolling text and on-screen identification of the showas an entertainment service and are in breach of theCode.

The Compliance Committee also held that, for fourspecific broadcasts, the programme failed to meet therequirements of section 3.1 of the code that commer-cial communications shall be legal, honest, decentand truthful, shall protect the interests of the audi-ence and shall be prepared with a sense of responsi-bility both to the individual and to society.

• Broadcasting Authority of Ireland (BAI), Broadcasting ComplaintsDecisions (October 2012)http://merlin.obs.coe.int/redirect.php?id=16188 EN

• Broadcasting Authority of Ireland (BAI), Broadcasting ComplaintsDecisions (November 2012)http://merlin.obs.coe.int/redirect.php?id=16189 EN

Damien McCallig,School of Law, National University of Ireland, Galway

Revision of General and Children’s Commer-cial Communications Codes

On 12 October 2012 the Broadcasting Authority of Ire-land (BAI) announced the outcome of consultations onthe revision of the General and Children’s CommercialCommunications Codes (see IRIS 2011-7/29). The re-vised Codes will deal, in particular, with the approachto be taken to products that are high in fat, salt andsugar (HFSS).

The BAI is required under section 42 of the Broad-casting Act 2009 to develop advertising codes to pro-tect the general public health interests of children andmay prohibit the advertising in a broadcasting serviceof a particular class or classes of foods. Prior to thefirst stage of a two-stage consultation process begunin September 2011, the BAI convened an Expert Work-ing Group to examine health concerns for children inIreland and to determine if the promotion to childrenof HFSS foods and drinks should be restricted (seeIRIS 2011-7/29).

The Expert Group Report recommended the Nutri-ent Profiling Model, developed by the UK Food Stan-dards Agency specifically for broadcast regulation(see IRIS 2007-1/20), as the mechanism for definingHFSS food and drink. The first stage of the consulta-tion sought the public’s views on the Expert Group Re-port. Informed by this consultation the BAI acceptedthe Nutrient Profiling Model to define HFSS food anddrink and prepared Draft General and Children’s Com-mercial Communications Codes that contained spe-cific rules to restrict the promotion of less healthyHFSS food and drink. As required by section 44 ofthe Broadcasting Act 2009, the Draft Codes were thenissued for consultation.

This second stage of the consultation process soughtfurther views on the Nutrient Profiling Model and thespecific rules and restrictions contained in the DraftCodes. Resulting from this stage of the consulta-tion process, cheese, which was initially included,has been exempted from the nutrient profiling model.This change was made on the recommendation of theDepartment of Health due to the health benefits ofcheese and the economic and cultural significanceof cheese in the Irish context. Advertisements forcheese will, however, include an on-screen messageindicating the recommended daily consumption lim-its.

16 IRIS 2013-1

Following the second consultation the specific rulesproposed in the Draft Children’s Commercial Commu-nications Code have been finalised by the BAI. Thismeans that commercial communications for HFSSfood and drink shall not:

- be permitted in children’s programmes as defined bythe code;

- include celebrities or sports stars;

- include children’s programme characters;

- include licensed characters, for example charactersand personalities from cinema releases;

- contain health or nutrition claims; or

- include promotional offers.

The BAI also finalised the General Commercial Coderules, which will limit HFSS advertising so that nomore than 25 percent of advertising sold by a broad-caster can be for HFSS food and drink. Also, only onein four advertisements for HFSS products will be per-mitted in any advertising break. The revised Codeswill be formally launched in January 2013 and follow-ing a lead-in period will come in to effect from 1 July2013.

• Broadcasting Authority of Ireland, BAI Signals new rules to governadvertising of food and drink in children’s advertising, 12 October2012http://merlin.obs.coe.int/redirect.php?id=16186 EN• Broadcasting Authority of Ireland, Draft BAI General and Children’sCommercial Communications Codes Consultation Document, March2012http://merlin.obs.coe.int/redirect.php?id=16187 EN

Damien McCalligSchool of Law, National University of Ireland, Galway

Digital Switchover of Terrestrial TelevisionComplete

At 10:00 am on 24 October 2012 Ireland’s analoguetelevision signal was switched off. Analogue tech-nology had been used to transmit and receive tele-vision signals in Ireland since television broadcast-ing started in 1962. This completes Ireland’s digitalswitchover from analogue to digital television servicesand meets the European Union target of 2012 for ana-logue switch-off.

The switchover was coordinated with the digitalswitchover in Northern Ireland. A Memorandum ofUnderstanding (MOU) was signed between the IrishMinister for Communications, Energy and Natural Re-sources and the United Kingdom’s Secretary of Statefor Culture, Media and Sport. Under the terms of theMemorandum the widespread availability of RTÉ ser-vices and TG4 in Northern Ireland will be facilitated on

a free-to-air basis and BBC services will be availablein Ireland on a paid-for basis.

• Department of Communications, Energy and Natural Resources,Digital Switchover websitehttp://merlin.obs.coe.int/redirect.php?id=16190 EN• Department of Communications, Energy and Natural Resources,Memorandum of Understanding between the United Kingdom ofGreat Britain and Northern Ireland and the Government of Irelandregarding the Digital Switchover and the provision of television ser-vices in Northern Ireland and Ireland (1 February 2010)http://merlin.obs.coe.int/redirect.php?id=16191 EN

Damien McCalligSchool of Law, National University of Ireland, Galway

LU-Luxembourg

Bill on the Creation of a New Media Authority

On 15 October 2012, the Minister for Communicationand Media of Luxembourg published a bill on the cre-ation of the Independent Audiovisual Authority of Lux-embourg and modifying several laws (Bill ALIA). TheBill ALIA is now in the legislative procedure at theChambre des Députés (Luxembourg Parliament).

The reform of the Luxembourg media authorities hasbeen debated for a few years and there had alreadybeen an earlier draft in 2008 that was retracted (Projetde loi N◦5959). Due to an increased workload stem-ming from the adaptation of the national legal frame-work to the EU Audiovisual Media Services Directiveand in view of a simplification of the regulatory sys-tem the reform was seen as necessary. The Bill ALIAalso purports to enhance the effectiveness and cred-ibility of the bodies and institutions charged with thesupervision of the audiovisual sector.

The Bill ALIA proposes to establish the “Autorité lux-embourgeoise indépendante de l’audiovisuel” (Inde-pendent Audiovisual Authority of Luxembourg - ALIA),which would be a public body with legal personalityexercising its functions in full independence. It wouldbe financed by the state budget based on a requestby the authority. Its bodies would be an Administra-tion Council, headed by a director and a ConsultativeAssembly, the latter being composed of 25 represen-tatives of society. ALIA would replace the three regula-tory bodies currently involved in the monitoring of theelectronic media. Thus, ALIA would be consulted bythe Government before the granting of licenses andpermissions to audio and audiovisual media servicesand would then be in charge of the supervision of theservices including the rules concerning commercialcommunication and promotion of European works. Incontrast with its predecessors, ALIA would have well-defined sanctioning powers in order to effectively ex-ercise its functions. A graduated system of sanctions

IRIS 2013-1 17

would be introduced encompassing mechanisms suchas warnings, fines (of EUR 250-25.000), suspensionsof transmission and withdrawals of licenses.

With regard to the legal framework, the Bill ALIA wouldamend further acts. Most importantly, the “Loi du 27juillet 1991 sur les medias électroniques” (ElectronicMedia Law of 1991, Law of 1991) would be changed toestablish the legal basis for the creation of ALIA. Apartfrom the modified references to ALIA as the compe-tent regulatory authority throughout the text, a newArt. 35 would be introduced for this purpose. Art. 35to Art. 35sexies Law of 1991 would set out the institu-tional framework and organisational details of ALIA. Inaddition, the “Loi du 6 avril 2009 relative à l’accès auxreprésentations cinématographiques publiques” (Lawon access to cinematographic works of 2009, Law of2009) would be amended to allow ALIA to control theself-classification of films by cinemas and its imple-mentation (new Art. 6 Law of 2009).

• Projet de loi (N◦6487) portant création de l’établissement public Au-torité luxembourgeoise indépendante de l’audiovisuel et modificationde la loi modifiée du 27 juillet 1991 sur les médias électroniques, dela loi modifiée du 22 juin 1963 fixant le régime des traitements desfonctionnaires de l’Etat et de la loi du 6 avril 2009 relative à l’accèsaux représentations cinématographiques publiques. Date de dépôt :15 octobre 2012 (Draft law on the creation of the Independent Audio-visual Authority of Luxembourg, Draft law ALIA, 15 October 2012)http://merlin.obs.coe.int/redirect.php?id=16211 FR

Mark D. ColeUniversity of Luxembourg

LV-Latvia

Amendments to Electronic Media Law underconsideration

On 18 October 2012 the Saeima (the Latvian Par-liament) adopted important amendments to the Lat-vian Electronic Media Law in the first reading. Theseamendments focus on the regulation of digital terres-trial broadcasting services as from 2014. The draftalso includes potentially controversial new powers ofthe media regulatory authority.

Currently, digital terrestrial broadcasting is providedby one operator chosen in the course of a tender orga-nized by the Cabinet of Ministers (see IRIS 2010-2/27).The exclusive rights of this operator expire on 31 De-cember 2013. According to the transition rules of theElectronic Media Law, the Cabinet of Ministers has todevelop a new framework for the operator selectionprocedure for 1 January 2014.

On 26 April 2012 the Cabinet of Ministers approved aconcept ”On the Distribution of Terrestrial Digital Tele-vision Programmes as of 2014”, which provides dif-ferent distribution modes for free TV and pay TV pro-grammes. According to the concept, the state owned

company Latvian Radio and Television Centre will en-sure the distribution of free national and regional tele-vision programmes, whereas the pay TV programmeswill be distributed by one or more commercial oper-ators selected on the basis of a tender organized bythe Cabinet of Ministers.

However, the details of the new regulation are stillunclear, since the Cabinet of Ministers has not yetmade the fundamental choice whether the distribu-tion of pay TV programmes could be entrusted to onlyone operator (as is the current situation) or more.

Another important proposal in the draft amendmentsrelates to the powers of the National Electronic Me-dia Council (the Council), the media regulatory au-thority. It is proposed that the Council would have theright to approve the list of the programmes includedin pay TV packages to be distributed by digital terres-trial means. This approval would be based on criteriapreviously established in the National Strategy for theDevelopment of Electronic Media Sector.

This proposal arises from concerns about the insuffi-cient use of the Latvian language in electronic mediaand the formation of two linguistically different infor-mation flows (Latvian and Russian). The proposal waschallenged by left wing Saeima members as beingcontrary to free speech and akin to subtle censorship.Moreover, it was claimed that this proposal would becontrary to the Audiovisual Media Services Directive,as it would result in the hindering of free movementof audiovisual services. Since the approval for payTV packages would not apply to satellite and internetprotocol television, there are also concerns regardingfair competition.

• Likumprojekts ”Grozıjumi Elektronisko plassazin, as lıdzekl,u likuma”(Draft Amendments to the Electronic Media Law)http://merlin.obs.coe.int/redirect.php?id=16201 LV

Ieva AndersoneSorainen, Latvia

NL-Netherlands

Bill to Amend the Media Act 2008

On 8 October 2012, the Dutch Minister of Educa-tion, Culture and Science introduced a bill to amendthe Media Act 2008, with regard to “the distributionof television and radio programme channels throughbroadcasting networks and broadcasting transmittersand the determination of the minimum size of thestandard package television and radio programmechannels”.

By changing the Media Act 2008, the governmentaims to achieve a broader and technology neutral

18 IRIS 2013-1

foundation. The draft law contains a more modernregulation, since the rules of the current Media Act nolonger fit the technical and economic reality, whichhas been changed significantly for television distribu-tion by changes in the market.

With the bill, the government aims to adjust the mini-mum size of the digital standard package. The bill setsout that the digital standard package cannot be lessthan 30 television programme services. Only whenthe number of television programme services exceedsthis number, the package providers may spread chan-nels over plus packages. For the standard package,distribution of public broadcasters is also required(must-carry). It is therefore mandatory to includethe most important public radio and television pro-gramme services in the standard package. For therest, the package providers themselves determine thecomposition of the standard package. For radio thereis, apart from the compulsory distribution of publicradio programme services, no minimum number ofchannels.

Furthermore, cable companies, commercial broad-casters and municipalities have objections to the sys-tem of local program councils. The latter now ad-vise about the analog cable package. The cable com-panies, commercial broadcasters and municipalitiescharacterise this advice by program councils as cum-bersome and sometimes opaque, consider that it isno longer in line with the supra-regional exploitationof cable networks and think that it increasingly leadsto disputes. When the amendments of the Media Act2008 take effect, the local program councils thereforedisappear.

The bill determines which existing rules of the MediaAct 2008, as well as of the Telecommunications Act,will change. Concerning the Media Act 2008, it is in-tended that Article 1.1 of chapter 1, “Definitions andscope”, and Article 2.146 of section 2.6.1, “General fi-nancing entitlement”, will be amended. Also section6.3.1, "Use broadcasting transmitters and broadcast-ing networks", including paragraph 6.3.1.1, "Dissem-ination program service", paragraph 6.3.1.2, "Must-carry obligations of broadcasting networks" and para-graph 6.3.1.3, "Program councils", will be subject tochanges. Concerning the Telecommunications Act, Ar-ticle III, part B, will expire.

The bill even contains transitional provisions with re-gard to the offered programmes and objections andappeals. Finally, the amendments will, aside fromsome exceptions, enter into force with effect from adate to be determined by Royal Decree, which maybe determined differently for the various articles orparts thereof.

• Voorstel van wet, 8 October 2012, Kamerstuk 33426 nr. 2 (Bill toamend the Media Act 2008, 8 October 2012, Kamerstuk 33426 nr. 2)http://merlin.obs.coe.int/redirect.php?id=16230 NL

• Memorie van Toelichting, 8 October 2012, Kamerstuk 33426 nr. 3(Explanatory Memorandum, 8 October 2012, Kamerstuk 33426 nr. 3)http://merlin.obs.coe.int/redirect.php?id=16231 NL

Rosanne DeenInstitute for Information Law (IViR), University of

Amsterdam

NO-Norway

The First Ex Ante Test Completed

On 9 November 2012 Kongen i statsråd (NorwegianKing in Council - highest administrative level of theexecutive power) approved that Norsk rikskringkast-ing AS (the Norwegian public service broadcaster -NRK) could include a new travel and route plannerin its public service remit. The new service is aco-operation between NRK, the Directorate of PublicRoads, Trafikanten Ltd and Ruter Ltd.

In 2009 the Norwegian Broadcasting Act wasamended by a regulation requiring a pre-consent fromthe Government for any significant new service thatNRK wants to include in its public service remit. Theregulation specifies that ‘only services that meet thedemocratic, social and cultural needs of society’ maybe added to the public service remit, and the NRKStatutes further define the scope of activities that fallwithin the remit.

NRK submitted its first ex ante application in April2011, which initialized assessments in four steps.First, the Norwegian Media Authority assessed (a) thatthe new travel and route planner had to be subject toan entrustment procedure because it represented asignificant change from NRK’s existing services, (b)that there was an existing market as well as a po-tential future market for this type of service and (c)finally, that the costs of the service were consideredto be substantial. In the next step, NRK’s applicationwas submitted to a public consultation, in which sev-eral actors in the media market expressed concernsabout the market impact of NRK’s expansion with newmedia services and the broad definition of NRK’s pub-lic service remit. The Norwegian Competition Author-ity’s assessment concluded that NRK’s planned traveland route planner would have ‘a substantial negativeimpact on existing commercial actors that are in theprocess of developing Internet search engines whichprovide travel and route planners, and also Internetportals that compete with nrk.no’ and that it could ‘re-duce commercial actors’ incentives to invest in bothestablishing Internet travel and route planners anddevelopment and improvement of existing services’.

The Media Authority carried out the overall assess-ment in the third step of the procedure. In its ad-visory statement to the King in Council, the Media

IRIS 2013-1 19

Authority concluded that, even though the travel androute planner could contribute towards achieving cer-tain socio-economic purposes by providing travel androute information on one website, it could not clearlybe justified within the democratic, social and culturalneeds of society as these are defined by NRK’s publicservice remit. The Media Authority, therefore, did notrecommend that the travel and route planner shouldbe included within NRK’s remit, and meant that itwas necessary to look at the media political aims thatNRK’s remit is supposed to maintain in order to give aclear and precise delimitation to NRK’s mandate.

In the fourth and final step, the King in Council de-cided that NRK could include the traffic and routeplanner in its public service remit on certain condi-tions, mainly linked to equal access to public dataand commercial aspects. The Royal decree of the Kingin Council determines that the traffic and route plan-ner can be justified within NRK’s Statutes and thatthe new service contains an element of added pub-lic value relative to the potential commercial offers al-ready existing in the market. In the weighing againstthe potential restrictive impact of the service on com-petition, the conclusion is that the added value of theservice exceeds such eventual effects.

•Medietilsynets vurdering av Trafikkportalen, rådgivende uttalelse av12. juli 2011 (Media Authority (12 July 2011) The overall assessmentof the new traffic and route planner, advisory statement)http://merlin.obs.coe.int/redirect.php?id=16209 NO• Norsk rikskringkastings søknad om å innlemme Trafikkportalen i all-mennkringkastingsoppdraget, 09/11/2012 (Royal Ministry of Culture(9 November 2012), The Royal decree to King in Council)http://merlin.obs.coe.int/redirect.php?id=16210 NO

Marie Therese LilleborgeNorwegian Media Authority

PL-Poland

Draft Amendment to the Broadcasting Act

On 5 September 2012 the Polish Government pre-sented to the Parliament its draft Act amending theBroadcasting Act. This amendment aims at the fulltransposition of the Audiovisual Media Services Direc-tive (AVMSD) into national law. The proposal basi-cally concerns content regulation of on-demand au-diovisual media services (video on demand - VoD).Provisions regarding linear services had been imple-mented earlier (see IRIS 2010-8/41). Poland thus fol-lows the European Commission’s assessment that thePolish implementation of the AVMSD was not sufficient(see IRIS 2012-8/6, IRIS 2011-5/5, and IRIS 2010-8/4).

On 12 October 2012 the Act amending the Broadcast-ing Act was adopted by the Sejm (Lower Chamber ofthe Parliament) and presented to the Senat (Second

Chamber). The Senat’s Commission of Culture andMass Media began to work on the draft on 16 October2012.

General quality standards as outlined in the AVMSDhad already been transposed into Polish law. How-ever, by introducing new content regulation on theVoD market, the lawmaker made all possible effortsto keep the VoD market subject to light regulationand put as little administrative burden on serviceproviders as possible. Accordingly, there is no obli-gation of authorisation, registration or notification forproviders of VoD services.

The Draft Act provides only minimal reporting obliga-tions: two annual reports to the regulatory author-ity outlining (1) the realisation of protection of minors(e.g., technical measures to prevent access to harm-ful content) and (2) the promotion of European works(e.g., proportion of European works in the catalogue).

The responsible regulatory authority will be the Na-tional Broadcasting Council (NBC). It is in charge ofmonitoring the VoD market in order to identify VoDservice providers (established within Polish jurisdic-tion) and their compliance with the obligations im-posed by the Broadcasting Act. In case of violations,the NBC will issue a note of caution. If the infringe-ment is not ceased, the NBC may impose a fine upto PLN 1,000 (approx. EUR 250). The fine may berepeated.

The NBC’s tasks also include the initialisation andthe support of self- and co-regulation of VoD serviceproviders. The Act strongly supports the developmentof so-called Codes of Best Practice, e.g., in the areaof specific requirements for technical measures pro-tecting minors. The Act yields precedence to self-regulation in this respect. In case providers do notagree on self-regulation codes or if the latter prove tobe an ineffective implementation of the AVMS Direc-tive, the Minister of Administration and Digitalisationmay specify, by legislative regulation, the technicalrequirements.

• Rzadowy projekt ustawy o zmianie ustawy o radiofonii i telewizji(Draft Act amending the Broadcasting Act)http://merlin.obs.coe.int/redirect.php?id=16202 PL• Sprawozdanie Komisji o projekcie ustawy o zmianie ustawy o radio-fonii i telewizji - trzecie czytanie (Minutes of the Sejm adoption of theDraft Act of 12 October 2012)http://merlin.obs.coe.int/redirect.php?id=16229 PL

Małgorzata PekNational Broadcasting Council of Poland

20 IRIS 2013-1

RO-Romania

Severe Sanctions for more Romanian TV Sta-tions

On 6 and 8 November 2012, the Consiliul Nationalal Audiovizualului (National Council for Electronic Me-dia - CNA) imposed severe sanctions on four commer-cial Romanian television stations (PRO TV, Acasa TV,Kanal D and Antena 1) for violating the law on au-diovisual services. Three stations (PRO TV, Kanal D,Antena 1) were obliged to interrupt their programmesand to broadcast for 10 minutes the text of the CNA’ssanctions. The fourth channel, Acasa TV, was finedRON 100,000 (about EUR 22,000), the second biggestlegal financial sanction ever imposed. Acasa TV alsowas obliged to interrupt its programme for 10 min-utes, but the station appealed the sanction (see interalia IRIS 2012-1/38, IRIS 2011-1/44, IRIS 2012-2/32,and IRIS 2012-4/36).

The broadcasters were sanctioned over tabloid TVshows because of insulting language repeatedly usedby guests, the re-runs of the shows despite of the in-appropriate language used and the broadcasting ofshows that could harm minors at improper times.

The stations violated Art. 3 (1) of the Legea au-diovizualului nr. 504/2002, cu modificarile si com-pletarile ulterioare (Audiovisual Law no. 504/2002,with further modifications and completions), whichprovides that political and social pluralism, cultural,linguistic and religious diversity, information, educa-tion and public entertainment are accomplished andensured by the broadcasters.

At the same time, some broadcasters violated Art. 39(2) of the mentioned law, which stipulates that broad-casting of programmes that are likely to impair thephysical, mental or moral development of minors maybe performed only if minors in the transmission areaunder usual conditions do not have access to thoseprogrammes.

Furthermore, the Council found that the stationsbreached Art. 40 (3) of the Codul Audiovizualului,Decizia nr. 220/2011 privind Codul de reglementarea continutului audiovizual, cu modificarile si com-pletarile ulterioare (Audiovisual Code - Decision no.220/2011 concerning the regulation of audiovisualcontent, with further modifications and completions),which requires the moderators of the programmes notto use or tolerate insulting language or instigate vio-lence.

Between 1 January and 30 September 2012, the CNAissued 274 sanctions, including 166 public warnings,101 fines amounting to RON 2,755,500 (about EUR601,650), two decisions obliging the broadcasters to

read out the text of the sanction issued by the Councilfor 10 minutes during the regular programme (19:00-19:10), one decision obliging accordingly for 3 hours(18:00-21:00) and three decisions reducing the re-maining validity of the broadcaster’s licence.

• Decizii de sanctionare Privind programele de radio sau TV, pub-licitatea si societatile de cablu care nu au respectat legislatia au-diovizuala (CNA Decisions)http://merlin.obs.coe.int/redirect.php?id=16204 RO

Eugen CojocariuRadio Romania International

RU-Russian Federation

Resolution of the Supreme Commercial Courton Transparency of Justice

On 8 October 2012, Âûñøèé Àðáèòðàæíûé ñóä Ðîññèé-ñêîé Ôåäåðàöèè (The Supreme Commercial Court ofthe Russian Federation) adopted at its plenary sessionResolution “ Îá îáåñïå÷åíèè ãëàñíîñòè â àðáèòðàæíîì

ïðîöåññå ” (On Provisions of Glasnost in CommercialCourt Procedure).

The Resolution instructs the judges (about 4,000 in to-tal) of such courts that text reporting from the courtsessions via social media and Internet with the use ofpersonal technical means is allowed without any spe-cial permission or notification of the presiding judgeor sides of the parties in the proceedings.

The Supreme Commercial Court establishes a pre-sumption of the permissibility of photo, video or filmrecording of the open court proceedings, as well astheir live transmissions by means of radio, TV or In-ternet. A ban on such recordings is allowed only toprotect fundamental human rights.

In case of recording and/or live TV and webcasting nopermission of those present in the courtroom to usetheir images is necessary. Such recordings may beused as proof of possible procedural violations in thecase.

The Resolution also instructs the judges that they maynot stop citizens from being present in the courtroomduring open hearings if the there are no availableseats. In cases when no courtroom can seat all thosewishing to attend, a live broadcast of the session maybe arranged.

IRIS 2013-1 21

• ÏÎÑÒÀÍÎÂËÅÍÈÅ Ïëåíóìà Âûñøåãî ÀðáèòðàæíîãîÑóäà Ðîññèéñêîé Ôåäåðàöèè Ìîñêâà �61 8 îêòÿáðÿ 2012ã . Îá îáåñïå÷åíèè ãëàñíîñòè â àðáèòðàæíîì ïðîöåññå(Resolution of the Plenary Session of the Supreme Commercial Courtof the Russian Federation 8 October 2012 No. 61 On Provisions ofGlasnost in Commercial Court Procedure)http://merlin.obs.coe.int/redirect.php?id=16184 RU

Andrei RichterFaculty of Journalism, Moscow State University

SE-Sweden

Radio and Televisions Act Applies to Newspa-pers’ Web TV Services

On 29 October 2012, Granskningsnämnden för radiooch TV (the Swedish Broadcasting Commission - SBC)delivered four decisions regarding the application ofRadio- och TV-lagen (The Radio- and Televisions Act -RTL) in relation to Web TV sections on newspapers’websites. The cases concerned more or less sim-ilar circumstances for the websites of the newspa-pers Aftonbladet, Dagens Nyheter, Helsinborgs Dag-blad and Norran.

Firstly the SBC had to decide whether the RTL ap-plied to a Web TV service as such. According to thetravaux préparatoires of the RTL, which refer to theAudiovisual Media Services Directive 13/2010/EU, theprimary objective of a service must be to provide aprogramme in order for the service in question to fallwithin the definition of an audiovisual media service.The SBC found that the TV programmes on the web-sites constituted separate services compared to othercontent on the newspapers’ websites. Moreover, theprogrammes were made available to the general pub-lic at the request and at the time chosen by the user,and programmes were also classified in cataloguessuch as “Sports” and “News”. In light of these facts,SBC established the Web TV sections of the newspa-per websites were on-demand TV (non-linear audiovi-sual media services) and thereby subject to the RTL.

Secondly, as a consequence, the newspapers mustfollow the rules on unfair promotion of commercial in-terests and advertisements under the RTL. In this re-spect all four newspapers were able to successfullydefend themselves that they had not breached therules on unfair promotion of commercial interests.

However, the SBC considered that Aftonbladet hadnot provided indications that clearly differentiated theadvertising from the rest of the content and had ac-cordingly breached the RTL. When it came to sanc-tions, this time, the SBC found no reason to impose aspecial fine on Aftonbladet.

The cases are interesting as they clearly state thatthe scope of the RTL will cover newspapers’ Web TV

services in many cases. Newspapers must thereforeconsider and adhere to the RTL’s rules on promotionof commercial interests and advertisements.

• Granskningsnämnden för radio och tvs beslut i Dnr 12/00777 avden 29 oktober 2012 (Swedish Broadcasting Commission’s decisionsin Case No. 12/00777 of 29 October 2012)http://merlin.obs.coe.int/redirect.php?id=16192 SV• Granskningsnämnden för radio och tvs beslut i Dnr 12/00778 avden 29 oktober 2012 (Swedish Broadcasting Commission’s decisionsin Case No. 12/00778 of 29 October 2012)http://merlin.obs.coe.int/redirect.php?id=16193 SV• Granskningsnämnden för radio och tvs beslut i Dnr 12/00779 avden 29 oktober 2012 (Swedish Broadcasting Commission’s decisionsin Case No. 12/00779 of 29 October 2012)http://merlin.obs.coe.int/redirect.php?id=16194 SV• Granskningsnämnden för radio och tvs beslut i Dnr 12/00780 avden 29 oktober 2012 (Swedish Broadcasting Commission’s decisionsin Case No. 12/00780 of 29 October 2012)http://merlin.obs.coe.int/redirect.php?id=16226 SV

Erik Ullberg and Michael PlogellWistrand Advokatbyrå, Gothenburg

SK-Slovakia

“Media Partnership” as Remuneration forAdvertising

In recent months the Council for Broadcasting andRetransmission of the Slovak Republic (Council) hasreceived complaints about an excessive amount ofadvertising within certain programmes of the majorcommercial TV broadcaster in Slovakia.

In the case at hand an examination carried out bythe monitoring department of the Council revealedtwo advertising breaks that together lasted exactly12 minutes within the examined hour. However, an-other announcement of 20 seconds about a forthcom-ing musical at the state theatre was broadcast withinthis period.

Although placed outside the commercial break amongother trailers this announcement contained short ex-tracts of the musical along with phrases such as “fullof fun and emotion”, “musical that was long waitedfor” etc. Due to the promotional nature of this an-nouncement the Council started a legal investigationin view of a possible violation of the legal maximumof 12 minutes of advertising during one hour of broad-casting.

In its response the broadcaster claimed that the an-nouncement merely informed the audience about theforthcoming musical. The state-owned theatre can-not be treated as a regular commercial enterprise andthe promotion therefore cannot be qualified as adver-tising. The purpose of this announcement was solelyto promote Slovak culture, carried out free of charge.

22 IRIS 2013-1

Hence, it should be considered as “a message broad-cast in the public interest”.

On 21 February 2012, the Council disagreed and im-posed a fine of EUR 3,319. It stated that the an-nouncement fulfilled the definition of advertising andthus had to be taken into account for the total timeof advertising. Besides merely informing about thepremiere, the announcement was worded clearly in apromotional manner. Furthermore, in cases where itis clear that the purpose of the announcement is topromote the supply of goods or services there is noother logical reason for a broadcaster to air such an-nouncements than to gain profit of some kind.

The Council also stated that even though the theatreis state-owned the revenues of its plays form a consid-erable part of its income. In this context, the remuner-ation for broadcasting the advertising does not nec-essarily have to be provided in cash payment. Simi-lar consideration also includes any form of barteringdeals or partnerships. These may never appear in theaccount books of the broadcaster and thus are un-traceable but find expression in any kind of “mediapartnership” whatsoever.

The broadcaster repeated its argument in its SupremeCourt appeal. The Court, however, fully upheld theCouncil’s decision and its conclusions in its ruling of11 September 2012 and followed the opinion that theremuneration for advertising is not limited to cashpayment. Hence, the Court also confirmed that “me-dia partnership” fully qualifies as a form of “similarconsideration” for TV advertising.

• Council’s decision of 21 February 2012 NN

• Supreme Court’s decision of 11 September 2012 NN

Juraj PolakLaw and License Department, Office of the Council

for Broadcasting and Retransmission

US-United States

Court Denies Preliminary Injunction againstAd-Skipping Services

On 7 November 2012, a United States District Courtin Los Angeles rejected a petition for a preliminary in-junction filed by Fox Broadcasting ("Fox") that askedthe Court to block DISH Network (“DISH”) from provid-ing its advertising-skipping DVR services "AutoHop"and "PrimeTime Anytime" (collectively "Services")to its customers. The new Services allow DISH’scustomers to record primetime television shows onbroadcast networks, save them for up to eight days,and skip past commercials in the recorded shows.

Fox argued that DISH should be blocked from pro-viding the Services because they are a “bootleg,commercial-free video-on-demand service that wouldirreparably harm the television industry by threaten-ing the billions of dollars spent each year on commer-cials”. DISH countered, however, that the Services aremerely an improvement on existing recording devicesthat enable customers to record commercial-free pro-gramming, which have been accepted by the industryand judicially approved as “fair use” under the federalCopyright Act.

Even though DISH hailed the ruling, which was placedunder seal to allow both parties to redact confiden-tial trade information, as a “victory for common senseand customer choice”, it remains unclear whetherthe ruling is a complete victory for DISH because theCourt also found that DISH likely committed copyrightinfringement and breached its contract with Fox bymaking copies of Fox’s programming.

In a statement released shortly after the decision wasannounced, DISH’s Executive Vice President and Gen-eral Counsel praised the ruling as an important deci-sion that underscores “the U.S. Supreme Court’s de-cisions that consumers have a right to enjoy televi-sion as they want, when they want, including the rea-sonable right to skip commercials, if they so choose”.The statement also shed further light on the deci-sion, noting that the Court found it likely that: (1)Fox has not established that is has suffered irrepara-ble harm as a result of DISH’s making the qualityassurance copies; (2) DISH customers using “Prime-Time Anytime” cannot be liable for copyright infringe-ment; (3) copies made using “PrimeTime Anytime”do not infringe on Fox’s exclusive reproduction rightsunder Federal copyright laws; (4) AutoHop does notviolate the Video-On-Demand provisions of the 2010retransmission consent agreement between Fox andDISH (“RTC”); and (5) neither of the Services consti-tutes unauthorized distribution under Federal copy-right laws. Fox has already appealed the decision, ac-knowledging that it was “disappointed the court erredin finding that Fox’s damages were not suitable for apreliminary injunction”.

• Statement by Dish Executive Vice President and General Counselhttp://merlin.obs.coe.int/redirect.php?id=16207 EN• Appeal filed by Foxhttp://merlin.obs.coe.int/redirect.php?id=16208 EN

Jonathan PerlNew York Law School

IRIS 2013-1 23

DE-Germany

BGH declares retention of reports on sus-pected offenders in online archives lawful

In a judgment of 30 October 2012 (Case VI ZR 4/12)the Bundesgerichtshof (Federal Court of Justice - BGH)ruled that the retention of reports on suspected of-fenders in online archives is lawful.

The plaintiff worked as a “special operations officer”for the Ministry of State Security in the German Demo-cratic Republic (GDR). However, in civil proceedingshe made a statutory declaration that he had neverworked for that ministry. As a result of this false tes-timony, the public prosecutor’s office instituted crimi-nal investigation proceedings against him, which weresubsequently discontinued against payment of a sumof money.

A daily newspaper reported on the investigation pro-ceedings, mentioning the plaintiff’s name, and laterplaced the article in its online archive, which is freelyaccessible via the newspaper’s website. After theproceedings had been discontinued, the newspaperwrote a postscript to the article on the discontinuationof the investigation proceedings against payment of asum of money.

The plaintiff considered that keeping the article avail-able in the newspaper’s online archive violated hisgeneral personality rights and brought a cease-and-desist action against the newspaper. Having lost onappeal, the defendant filed an appeal on points of lawwith the BGH, which dismissed the action, stating thatthe interference with the plaintiff’s general personal-ity rights by retaining the article in the newspaper’sonline archive was not unlawful as the plaintiff’s inter-est in his own protection had to take second place tothe public interest in information and the defendant’sright to freedom of expression. The court pointed outthat the original publication in 2008 had been law-ful as there had been a significant public interest inthe circumstances of the criminal offence of which theplaintiff had been accused. The subsequent discontin-uation of the investigation proceedings had changednothing in that regard and, according to the BGH, thecomparatively insignificant harm done to the plain-tiff’s general personality rights had to be a secondaryconsideration.

• Das Urteil des Bundesgerichtshofs vom 30 Oktober 2012 (Az.: VI ZR4/12) (Judgment of the Federal Court of Justice of 30 October 2012(Case VI ZR 4/12))http://merlin.obs.coe.int/redirect.php?id=17785 DE

Gianna IacinoInstitute of European Media Law (EMR), Saarbrücken/

Brussels

24 IRIS 2013-1

Agenda

MEDIADEM final European Conference Media freedomand independence: Trends and challenges in Europe7 February 2013 Organiser: European Platform ofRegulatory Authorities (EPRA), Hellenic Foundation forEuropean and Foreign Policy, Association of EuropeanJournalists Venue: Brusselshttp://www.mediadem.eliamep.gr/mediadem-final-european-conference-in-brussels/Welcome to Internet 2013 – a venue for discussionson freedom of expression online14 - 15 February 2013 Organiser: OSCE Representative onFreedom of the Media Venue: Viennahttp://www.osce.org/event/internet2013

Book List

Cafaggi, F., Casarosa, F., Prosser, T., The regulatory quest forfree and independent media European University InstituteAvailable here: http://www.mediadem.eliamep.gr/wp-content/uploads/2012/09/D3.2.pdf Price, M., RoutledgeHandbook of Media Law 2012, Routledge ISBN978-0-415-68316-6http://www.routledge.com/books/details/9780415683166/Cvetkovski, T., Copyright and Popular Media: Liberal Villainsand Technological Change 2013, Palgrave Macmillan ISBN978-0230368477http://www.palgrave.com/products/title.aspx?pid=549658

Stegmann, M., Das Recht der digitalen Filmverwertung2012, Lang ISBN 978-3631626443http://www.peterlang.com/index.cfm?event=cmp.ccc.seitenstruktur.detailseiten&seitentyp=produkt&pk=71887&concordeid=262644Roßnagel, A., Beck’scher Kommentar zum Recht derTelemediendienste: Telemediengesetz,Jugendmedienschutz-Staatsvertrag, Signaturgesetz,Signaturverordnung 2012, Beck Juristischer Verlag ISBN978-3406632112 http://www.beck-shop.de/Rossnagel-Beckscher-Kommentar-Recht-Telemediendienste/productview.aspx?product=9485536Schütz, R., Kommunikationsrecht: Regulierung vonTelekommunikation und elektronischen Medien 2013, BeckJuristischer Verlag ISBN 978-3406567827http://www.beck-shop.de/Schuetz-Kommunikationsrecht/productview.aspx?product=22285Castets-Renard, C., Droit de l’internet : droit français eteuropéen 2012, Montchrestien ISBN 978-2707618177http://www.lextenso-editions.fr/ouvrages/document/23379949?simpleSearch=droit+de+l%27internetMicheau, C., Droit des aides d’État et des subventions enfiscalité 2013, Larcier ISBN 9782804451691http://editions.larcier.com/titres/125643_2/droit-des-aides-d-etat-et-des-subventions-en-fiscalite.htmlScaramozzino, E., La télévision européenne face à la TV 2.0Larcier, 2012 ISBN 9782804455330http://editions.larcier.com/titres/127670_2/la-television-europeenne-face-a-la-tv-2-0.html

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 2013-1 25