Codified version of the AVMS-Directive published

Posted on April 15, 2010 | Filed Under digital content

Just briefly: the codified version of the Audiovisual Media Services Directive was published in today’s Official Journal. Full title: “Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)“.

About this Post
author: hans peter | Permalink | | Print This Article | Leave a Comment

“it more concerns the Turk”*? - New reference to ECJ over Kurdish TV-Channel

Posted on February 25, 2010 | Filed Under digital content

On 24 February 2010 the German Federal Administrative Court decided to refer questions concerning the Audiovisual Media Services Directive (AVMSD) to the European Court of Justice for a preliminary ruling. The German Federal Ministry of the Interior had banned the activities of two companies under Danish law, which provide - on the basis of a Danish licence - a TV programme mainly in the Kurdish language. The programme is distributed via satellite across Europe and to Turkey and the Middle East. The injunction was based on the German law on associations, and the reasons for the ban included that the broadcasting of the TV programme was directed against the idea of international understanding. The Ministry also stated that the station supported the armed struggle of the Kurdish Workers Party against the Turkish state. 

The Federal Administrative Court came to the conclusion that the injunction would be justified under national law. However, it is questionable whether the ban would be precluded by the AVMSD, which in its Article 3b provides that “Member States shall ensure … that audiovisual media services provided by media service providers under their jurisdiction o not contain any incitement to hatred based on race, sex, religion or nationality.”

Compliance with these Community [now: Union] minimum standards is enforced by the transmitting State (in this case, Denmark). The receiving State (Germany) must not exercise “secondary control” (see ECJ 9 July 1997, C-34/95, C-35/95, C-36/95, Konsumentombusmannen ao, para 34: “Thus the Directive does not in principle preclude application of national rules with the general aim of consumer protection provided that they do not involve secondary control of television broadcasts in addition to the control which the broadcasting Member State must carry out.)

The German Federal Administrative Court considered that the German Ministry of the Interior might have exercised such secondary control of a TV programme that was transmitted without any objections by the competent authorities of Denmark as the transmitting state.

As the decision of the Federal Administrative Court is not published yet, this blogpost is based on the Court’s press release (here, in German). I am pretty sure that the Court’s questions do not yet in fact concern the (revised) AVMSD, but are based still on the “Television Without Frontiers”-version of the directive. Even so, the relevant principles also apply to the new AVMSD. [update 26 May 2010: the case is C-245/10 Roj TV]

*) Shakespeare, Othello, Act I Scene 3

About this Post
author: hans peter | Permalink | | Print This Article | Leave a Comment

Valuing action over talk: Neelie Kroes knows why

Posted on January 29, 2010 | Filed Under digital content

Today, BEREC officially started its work. And while it is certainly not a “superagency”, I do not believe it is just “a powerless talking shop”. And, for that matter, it definitely is not an EU telecoms regulator either, even if Commissioner Reding called  it just this in her speech today. Reding was not the only Commissioner present, she was joined by her soon-to-be successor, Neelie Kroes, who in her speech emphasised she really values action over talk.

Looking at the video of her hearing in the European Parliament, I do understand this value-chain: talk is not her strongest point. Take a look at the Video of the hearing, and for instance start at 18:04:24, when the Chairwoman of the Committe on Culture and Education, Doris Pack,  asks Kroes for her defnition of a balanced dual broadcasting-system and the role of public service media. The Chairman of the hearing gives Kroes the floor, saying “Ms Kroes - straight question, straight answer!” And then comes Kroes’ answer:

Neelie Kroes: It is a very clear question and we are aware that depending on the public broadcasting services we try to deal with principles all over the place the same, and tailor-made approaches; but in itself we should be quite clear, the definition has to be as clear as crystal, for otherwise we are not getting a real result out of our discussions. And what we did in the past in competition, in competition issues, was, I imagine, quite acceptable also for you, to find a way in which the diversity is still there and that is a big issue, that is one of those issues that we are fond of in Europe and that is still a competitive market in which at the end of the day the consumer is able to pick out what he or she is preferring.

Everything clear as crystal? I do think Commissioner Kroes could learn a thing or two from the legendary Sir Humphrey of the BBC-series “Yes, Minister”, who put it much better:

Jim Hacker: “When you give your evidence to the Think Tank, are you going to support my view that the Civil Service is over manned and feather-bedded, or not? Yes or no? Straight answer.”
Sir Humphrey: “Well Minister, if you ask me for a straight answer, then I shall say that, as far as we can see, looking at it by and large, taking one thing with another in terms of the average of departments, then in the final analysis it is probably true to say, that at the end of the day, in general terms, you would probably find that, not to put too fine a point on it, there probably wasn’t very much in it one way or the other. As far as one can see, at this stage.”
Jim Hacker: “Is that Yes or No?”
Sir Humphrey: “Yes and no.”
Jim Hacker: “Supposed you weren’t asked for a straight answer?”
Sir Humphrey: “Then I should play for time, Minister.”

About this Post
author: hans peter | Permalink | | Print This Article | Leave a Comment

EC-commissioned study on media pluralism indicators: draft version online

Posted on May 2, 2009 | Filed Under digital content

Media pluralism is not really a favourite topic for the Commission, and understandably so: it’s not an issue that lends itself to easy answers, much less to quick fixes, and above all any policy on media pluralism worthy of its name by necessity will run into heavy criticism by the most powerful media. So I was sceptical of the efforts the Commission announced quite a while ago (see my post in this blog), and I still am. But nonetheless, I have to welcome that a preliminary version of the study on indicators for media pluralism is now online, complete with the prototype of what the authors call a “Media Pluralism Monitor”, an Excel file (plus user guide) to be filled with data from the respective member states - then showing a red, orange/yellow or green sign (here’s the dedicated website of the Commission).

Obviously, the researchers did a fine job of collecting and condensing information on possible indicators for media pluralism. I am not convinced of the Excel sheets in a lot of details, but at least the questions adressed there (and in the user guide that elaborates how one should arrive at the answers to put into the Excel sheet) give precise topics that can be discussed point by point. I would dispute the relevance of some questions (for instance I do not see any value in asking whether the respective member state has ratified the European Convention on Human Rights, much less in asking whether it also has “ratified” [!] some EC directives), and I also suspect that there is a slight tendency of bias towards more regulation and more regulatory oversight, but still every question I read so far is well worth to be asked and, hopefully, answered in all member states. [On the practical side, it would be nice to have the user guide integrated into the Excel-file, but maybe the final version will be more user-friendly]

I am sure there will be a lot of critcism, in general and in the details, but as the “media pluralism monitor” is a tool that can also be used by academics or NGOs, I look forward to a developing media pluralism discussion - and even if the Commission will not issue a recommendation, academics or NGOs could go ahead and put the indicators to a reality test.

About this Post
author: hans peter | Permalink | | Print This Article | Leave a Comment

ISPs as “intermediaries”: ECJ affirms rightholders may seek injunction against ISPs in filesharing cases

Posted on March 5, 2009 | Filed Under digital content

In an order dated 19 Februar 2009 (not yet available in English), the European Court of Justice in the Case C-557/LSG (earlier in this blog) held that rightholders may apply for an injunction against Internet-Access-Providers whose services are used by a third party to infringe a copyright or related right, because ISPs are “intermediaries” according to the “info-directive” 2001/29. To the ECJ, this interpretation was beyond reasonable doubt (so it was not decided in a judgment, but rather in an order).  

The main question put before the ECJ by the Austrian Supreme Judicial Court was whether article 8(3) of the enforcement-directive 2004/48/EC, ”having regard to Article 6 and Article 15 of Directive 2002/58/EC” (e-privacy-directive) were to be interpreted (restrictively) as not permitting the disclosure of personal traffic data to private third parties for the purpose of civil proceedings for alleged infringements of exclusive rights protected by copyright (rights of exploitation and use).

In other words: would a member state that permits rightholders to receive personal data from an ISP (identifying fileshares on account of their IP-addresses that are dynamically assigned by the ISP) be infringing the e-privacy-directive?

The ECJ again did not see it necessary to deliver a full judgment, but rather saw this question answered already in the Promusicae-Case (see already here), where it had stated (in Nr. 54):  “The conclusion must therefore be that Directive 2002/58 does not preclude the possibility for the Member States of laying down an obligation to disclose personal data in the context of civil proceedings.”

The Court then went on to stress what it said in Nr 68 and 79 of Promusicae, that member states have to “take care to rely on an interpretation … which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives [2000/31/EC, 2001/29/EC, 2004/48/EC, 2002/58/EC], the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.”

The really interesting question, to which the referring court certainly had expected a more enlightening answer, remains open: is a national law that gives rightholders in a copyright claim access to ISPs’ traffic data based on an interpretation that is consistent with the directives and does not conflict with fundamental rights or the principle of proportonality? After all, it is the ECJ that has to interpret community law - so why pass the hot potato back to the member states?

About this Post
author: hans peter | Permalink | | Print This Article | 2 Comments

“The law … will give him cable”*: ECJ on “must carry” in cable networks

Posted on January 13, 2009 | Filed Under communication technologies, digital content

Cable-TV was at the heart of another ECJ judgment that was handed down on 22 December 2008: C-336/07 Kabel Deutschland. And although the directive that the Court had been called upon to interpret - the Universal Service Directive 2002/22/EC - belongs to the world of “infrastructure” (electronic communications networks and services), the main conclusions that can be drawn from the judgment will be for the “content” side.

The case originated in Germany’s complicated system of deciding which programmes have to be carried by cable-tv operators. The Land of Lower Saxony required cable tv-operators to use 18 (!) of their available 32 analogue channels to carry programmes that were also distributed via digital terrestrial tv (although not in all parts of Lower Saxony). One channel had to be set aside for citizens’ tv, and for the remaining channels, the regulatory authority “established an order of priority”. Not surprisingly, a cable operator questioned whether this heavy regulation was compatible with Art 31 of the Universal Service Directive.

The Court established that the basic requirements of that article - “the television channels must be specified and a significant number of end-users must use the electronic communications networks as their principal means to receive television broadcasts” - were met:

  • Transmission on the analogue cable network covers around 57% of households in Germany “and thus constitutes the most widely-used means of transmission.”
  • As regards “the specified nature of the channels which may be covered by ‘must carry’ status,” the Court held that the “mere fact that the result of applying the national legislation is that the cable operator is required, first, to provide access, on more than half of the available channels, to programmes broadcast terrestrially, and, secondly, to set aside all channels still available on its network for transmission of the selected programmes, in accordance with an order of priority established by the competent authority, does not prevent those obligations from being regarded as relating to the transmission of ‘specified’ television channels within the meaning of Article 31(1) of the Universal Service Directive. By requiring that the television channels to be broadcast be ‘specified’, the directive does not seek to lay down a quantitative condition.”

And then the Court sets out ot clarify the distinction “between the regulation of transmission and the regulation of content.” Citing article 1(3) and the fifth recital of the Framework Directive 2002/21/EC, the Court notes that the Community regulatory framework does not cover broadcasting content. The Universal Service Directive is without prejudice to measures taken at national level, in compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audio-visual policy. In Nr. 33 to 37, the Court holds:

“33      In particular, it is appropriate to stress the importance of the fundamental freedom to receive information of which the recipients are end-users and which the Member States must guarantee, in accordance with Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.
34      It follows that Article 31(1) of the Universal Service Directive cannot be interpreted so as to undermine national legislation which, in compliance with Community law, pursues general interest objectives, in particular those relating to regulation of content and audio-visual policy. In accordance with that division of powers, Article 31(1) of the Universal Service Directive, which falls under Chapter IV thereof, entitled ‘End-user interests and rights’, does not establish a right for a cable operator to choose which channels to broadcast, but limits that right in so far as it may exist under applicable national law.
35      In order to examine whether the obligations to broadcast under Article 31(1) are proportionate, it must be stated that, as regards the general interest objectives pursued by the national legislation at issue in the main proceedings, it is apparent … that this legislation seeks to ensure media pluralism and diversity of the service on the analogue cable network. …
37      In that regard, it should be noted that the maintenance of the pluralism which the legislation in question seeks to guarantee is connected with freedom of expression, as protected by Article 10 of the European Convention on Human Rights and Fundamental Freedoms, which freedom is one of the fundamental rights guaranteed by the Community legal order …”

It is for the national court then to determine whether the obligations are unreasonable because they are likely to prevent the cable operator from performing them in conditions which are economically acceptable. It is also for the national court to ascertain whether the obligations imposed are such as to make the payment of remuneration to the cable operator necessary.

As the German legislation makes a distinction between “telemedia services” and broadcasting, the Court - with a reference to the definition of “television broadcasting services” under the Television Without Frontiers-Directive - also holds that the concept of “television services” within the meaning of Article 31(1) of Directive 2002/22/EC includes services of television broadcasters or providers of media services, such as teleshopping, provided that the conditions laid down in that provision are met, which again is a matter for the national court to establish. So even teleshopping channels could be “must carry”-channels, if a member state can think of a public interest objective (language, culture, whatever). At any rate, the ECJ draws a strict line between infrastructure and content regulation and seems very determined to avoid any appearance of interfering with member states’ decisions in audiovisual policy.

*) Shakespeare, Othello, Act I, Scene 2 (Full sentence: “The law, with all his might to enforce it on, will give him cable.”)

About this Post
author: hans peter | Permalink | | Print This Article | Leave a Comment

“What should this mean? … Or is it some abuse?”*: ECJ on Kanal 5

Posted on December 11, 2008 | Filed Under digital content, copyright

Sometimes, ECJ decisions can remind you of the old lawyer jokes (see for instance, here), where someone is identified as a lawyer because he gives an answer that is “100% accurate, yet completely useless.” Today’s answer given by the European Court of Justice to a request for a preliminary ruling by the Swedish Market Court in the Case C-52/07 Kanal 5 and TV 4 may well fall into that category. 

The commercial broadcasters Kanal 5 and TV 4 had complained to the Swedish competition authority about a suspected abuse of a dominant market position by STIM, “an association which enjoys a de facto monopoly in Sweden over the market for making available copyright-protected music for television broadcast”. Kanal 5 and TV 4 pay remuneration to STIM corresponding to a percentage of their revenue deriving from television broadcasts directed at the general public and/or subscription sales; the percentages vary according to the amount of music broadcast. The public service channel SVT, however, pays STIM a lump sum, the amount of which is agreed in advance. When the competition authority dismissed the somplaint, Kanal 5 and TV 4 brought action before the Market Court which then requested a preliminary ruling regarding the interpretation of Article 82 EC.

The court held that the remuneration model, which is not based only on the revenue of the broadcasting companies, but takes account of the number of the copyrighted works actually broadcast, does not in itself constitute an abuse within the meaning of Article 82 EC and must, in principle, be regarded as a normal exploitation of copyright. However, it is conceivable that, in certain circumstances, the application of such a remuneration model may amount to an abuse, in particular when another method exists which enables the use of those works and the audience to be identified and quantified more precisely and that method is capable of achieving the same legitimate aim.

The interesting question, whether the application of a different remuneration model to a public service broadcaster could be an abuse, is also answered in a very general way:

First, the referring court will have to take account of the fact that, unlike Kanal 5 and TV 4, SVT does not have either advertising revenue or revenue relating to subscription contracts and of the fact that the royalties paid by SVT are collected without taking account of the quantity of musical works protected by copyright actually broadcast. Furthermore, the national court must also ascertain whether Kanal 5 and TV 4, or either of those two companies, is a competitor of SVT on the same market. And finally, the referring court must consider whether such a practice may be objectively justified. Such justification may arise, in particular, from the task and method of financing of public service undertakings.

So it’s back to the Market Court for an interesting assessment of whether commercial and public-service broadcasters (without advertising funding) are acting on the same market.

*) Shakespeare, Hamlet, Prince of Denmark, Act IV Scene 7

About this Post
author: hans peter | Permalink | | Print This Article | 1 Comment

“one person working the bleeping machine”: FCC v. Fox transcript

Posted on November 5, 2008 | Filed Under digital content

Just as a quick update to yesterday’s post on FCC v. Fox beofre the US Supreme Court: here [edit 7 Nov 2008: link corrected] is the transcript - and it is not particularly compelling reading - even if there are nine instances of “Laughter” noted in these 61 pages, such as when Justice Scalia states “I mean, bawdy jokes are okay if they are really good.” - or when Solicitor General Garre explains why the expletives in the awards ceremony where not bleeped out by Fox: “at that time they only had one person working the bleeping machine or whatever it is they call it.”

The f- and s-words were not spelled out during oral argument, but the index notes 16 uses of “f-word” and 6 uses of “s-word”. However, there was an interesting question by Justice Stevens, when he asked Solicitor General Garre towards the end of the hearing: “Do you think the use of the word dung, D-U-N-G, would be indecent?”

Answer by Solicitor General Garre: “I think it would probably qualify under the subject matter definition, but it probably wouldn’t be patently offensive under community standards for broadcasting.” There was no “Laughter” recorded for this answer.

I don’t assume Justice Stevens had read our blog, where we pointed out Shakespeare’s avoidance of the word “cow shit” by using “cow dung” in King Lear, but obviously the issue whether or not Shakespeare can be shown on daytime TV might depend on the FCC’s interpretation of indecent - and never mind the violence which seems to be no problem as long as no one says the f-word. In fact there is one telling dialogue in the transcript, when Chief Justice Roberts obviously does not even consider that graphic violence could be a problem for kids, or rather that the f-word might even be acceptable only when it is used in connection to violent acts:

CHIEF JUSTICE ROBERTS: … The context makes all the difference in the world. … I mean, it’s one thing to use the word in, say, Saving Private Ryan, when your arm gets blown off. It’s another thing to do it when you are standing up at an awards ceremony.
MR. PHILLIPS [counsel for Fox]: You can’t seriously believe that the average nine-year-old, first of all, who is probably more horrified by the arm being blown off to begin with, but putting that aside, you — it cannot possibly be that the child has more of a reaction to that word in that context than if a young high school football player is running down the field screaming a particular expletive.

About this Post
author: hans peter | Permalink | | Print This Article | 2 Comments

“Fruity language” on TV, Radio, and before the Supreme Court?

Posted on November 4, 2008 | Filed Under digital content

cowThe day of the presidential election in the US is the day when an obviously very serious issue will be argued before the US Supreme Court: is it ok to say cow shit (instead of “cow manure”, as scripted) and “fuckin’ simple” (instead of “freakin’ simple”) on daytime TV? The case FCC v. Fox has generated a lot of interest (also in this blog: read here, here and here), and if you want to catch up on this case before the transcripts of the hearing become available, the SCOTUS Wiki is a good place to start, with links to all the relevant documents. Scotus Blog and First Amendment Center also provide a concise preview or analysis. An interesting question of course will be whether or not actual use of the f- and s-words will be made in the oral arguments (read more on Scotus Blog on that). As it is, the audio tapes are not going to be released until the current Term is over, so even if the Justices use the f- and s-words, you won’t hear them doing so for the moment.

And while the US court will have to decide on the f-word if used merely as an expletive, the BBC currently has some problems with the f-word used in its core meaning. I will not comment on that, other than just say I agree with a Guardian podcast where someone (I missed the name) said: “This isn’t the worst program that’s ever been transmitted. It was ugly, it was revolting, and it was infantile, but it was not the end of the world.” And of course one cannot help but note that all those disgusted by the broadcast in question dutifully link to it and provide still more coverage (as informationoverlord points out). The one thing I learned from the BBC-“Sachsgate” or “Manuelgate” is that instead of writing “f-word” or actually spelling out the f-word, one can also use another “f-word”: fruity. If you say “fruity language” (as the Guardian does here), everyone knows what it stands for, and still you haven’t said it. If you don’t mention the elephant, it’s not in the room.

About this Post
author: hans peter | Permalink | | Print This Article | 1 Comment

CFI on Danish TV2: licence fee revenue “state resources”, but no adequate reasons for Commission’s overcompensation-claim

Posted on October 22, 2008 | Filed Under digital content, public services

_antenna_bird.jpgIn its judgment in the joined cases T-309/04 TV2 v. Commission, T-317/04 Denmark v. Commission, T-329/04 Viasat Broadcasting UK v. Commission, and T-336/04 SBS and SBS Danish Television v. Commission, handed down today (see also the press release), the Court of First Instance of the European Communities annulled the Commission’s decision in the Case C 2/2003 (published in the Official Journal on 23 March 2006).

Action had been brought by all sides concerned: by private broadcasters as well as by TV2 and Danmark. The judgment is based primarily on reasons of procedure, as the Court found that the Commission has failed to provide an adequate statement of reasons for its claim of overcompensation; the Commission also had not substantiated the claim that Danish authorities did not regularly check the level of the accumulated reserves of TV2. The Court therefore concluded that the Commission erred in finding a state aid and did not go on to fully examine all pleas brought by all complainants. It did, however, make a few important points:

The Court restates that “Member States enjoy a broad discretion for defining what they regard as services of general economic interest. Accordingly, the definition of such services by a Member State can be queried by the Commission only in the event of manifest error. … The possibility open to Member States to define broadcasting SGEIs broadly, so as to cover the broadcasting of full-spectrum programming, cannot be called into question by the fact that the public service broadcaster also engages in commercial activities, in particular the sale of advertising space. … [T]he power of the Member States to define broadcasting SGEIs [Services of General Economic Interest] in broad and qualitative terms, so as to cover the broadcasting of a wide range of programmes, cannot be disputed; nor can the Member States’ freedom to use advertising revenue to finance such SGEIs.”

The Court concludes for the Danish situation:

TV2’s mandate is perfectly clear and precise: to offer the entire Danish population varied television programming which aims to provide quality, versatility and diversity. … It is also necessary to reject the argument that TV2 should not have been recognised as a public service channel, on the ground that its programming is no different from that of the commercial channels, and that the Commission should have compared TV2’s programming with the programming of those commercial channels. … To accept that argument and thereby to make the definition of the broadcasting SGEI dependent – through a comparative analysis of programming – on the range of programming offered by the commercial broadcasters would have the effect of depriving the Member States of their power to define the public service.

As regards the licence fee, the Court noted that the amount is determined by the Danish authorities, the obligation to pay the licence fee does not arise from a contractual relationship (but simply from the ownership of a television or radio receiver), where necessary the licence fee is collected in accordance with the rules on the collection of personal taxes, and the Danish authorities determine TV2’s share; licence fee resources therefore are available to and under the control of the Danish authorities and constitute “State resources”.

The Court is, however, harshly critical of the Commission as regards the reasons given for the second and fourth “Altmark“-criteria*). The Court notes (inter alia) the “Commission’s complete failure to examine seriously, during the formal investigation procedure, the actual conditions which, during the period under investigation, governed the setting of the amount of licence fee income payable to TV2″ and also states that the Commission “failed to examine the file seriously” and that there was a “lack of a serious and detailed examination”.

So the Commission’s decision had to be annulled by the Court - and the story continues (very likely with an appeal to the ECJ).

*) No 90 and 93 of the Altmark Trans Judgment: “Second, the parameters on the basis of which the compensation is calculated must be established in advance in an objective and transparent manner, to avoid it conferring an economic advantage which may favour the recipient undertaking over competing undertakings.”
“Fourth, where the undertaking which is to discharge public service obligations, in a specific case, is not chosen pursuant to a public procurement procedure which would allow for the selection of the tenderer capable of providing those services at the least cost to the community, the level of compensation needed must be determined on the basis of an analysis of the costs which a typical undertaking, well run and adequately provided with means of transport so as to be able to meet the necessary public service requirements, would have incurred in discharging those obligations, taking into account the relevant receipts and a reasonable profit for discharging the obligations.”

About this Post
author: hans peter | Permalink | | Print This Article | Leave a Comment

keep looking »