public-figures doctrine refined

Posted on October 25, 2007 | Filed Under fundamental rights

trial_le_pen2.jpgIn his recent judgement Lindon, Otchakovsky-Laurens und July gegen Frankreich (Appl. nos. 21279/02 and 36448/02) the ECHR has affirmed its Public-figures doctrine which says that the limits of acceptable criticism are wider as regards a politician or a political party as such, than as regards a private individual.
However, the court also introduced some alterations by refined the doctrine helding that:

“regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention.“

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author: gregor | Permalink | | Print This Article | 1 Comment

“by his master’s command, he must carry”* - but how much?

Posted on October 25, 2007 | Filed Under communication technologies

Another advocate general’s opinion of today does not directly reference the regulatory framework for electronic communication networks and services, but just briefly points to it in one paragraph (Nr 19). The Case C-250/06, UPC Belgium (and others), concerns a must carry-obligation imposed on Belgian cable operators in the Brussels region. The main issue in this case is whether or not this must-carry-obligation restricts the freedom to provide services and, if so, whether it is none the less compatible with Community law.

First, the advocate general establishes that the must-carry obligation, even if it does not expressly require establishment within the Member State, effectively treats the provision of purely domestic broadcasting services more favourably than the provision of cross‑border broadcasting services and thus constitutes a restriction on the freedom to provide services.

Then the advocate general draws attention to the special situation of the bilingual Brussels region, where the must‑carry rules can be applied to ensure that viewers in each municipality have access to channels that have a linguistic and cultural connection with the French Community, as well as to channels that have a linguistic and cultural connection with the Flemish Community.

“In such a setting, must‑carry rules constitute a suitable means of ensuring that television viewers in a particular region have access, in their own language, to local and national information and to programmes that foster their cultural heritage.”

The third question then is whether the must-carry rules are proportionate:

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An Advocate General’s state of mind: same motif, different picture

Posted on October 25, 2007 | Filed Under communication technologies

The advocate general resembles a painter, who, after having caught a motif on canvas, paints it again with other details and hues, because the light is different, the environment has changed or his state of mind is not the same any more.

Such are the words of advocate general Colomer in his opinion on the Case C-296/06 Telecom Italia, delivered today (in fact: these are not Colomer’s words, but a rough translation of the French version of his opinion, which was written in Spanish, yet available neither in Spanish nor in English on the Website of the Court).

One can understand the déj vu-feeling of the advocate general, since it is the fifth case concerning Art 11 of Directive 97/13/EC on general authorizations and individual licences, and the fourth time he has written an opinion on that topic. This time, the focus was on the transitional regime in place in Italy, where, summing it up, Telecom Italia had to pay 386 milion Euros as some kind of licence fee to the Italian Treasury in the year 1998.

In the view of the advocate general, the transition clause in Art 22 of the directive 97/13/EC, which allowed Member States to bring existing licences in line with the new directive by the end of 1999 and - under certain circumstances - to extend the validity of the terms of existing licences, does not justify the obligation of Telecom Italia to pay the fess in question also after liberalization took effect in 1998. Not really a surprising view.

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“Un spectre hante l’Europe”: le spectre radioélectrique

Posted on October 25, 2007 | Filed Under spectrum policy

Sunset Don’t be afraid: this post continues in English, possibly the lingua franca of electronic communications, but at any rate the standard language of this blog (or Blawg). But reading Commissioner Reding’s recent speech on the “digital dividend”, which is partly in French and partly in English, I was tempted to make this allusion - and it works only in French.

[For those who are wondering what this is about: the famous first line of the Communist Manifesto by Karl Marx reads: “A spectre is haunting Europe - the spectre of Communism,” and though “spectre” here of course means something completely different, in French it is the same word as is used for radio spectrum - see here for the French “Manifesto”].

So radio spectrum, it seems, is indeed haunting Europe: Reding and her staff keep pointing out the economic dimension, for instance by claiming that services that depend on radio spectrum amount for 2.5 % of our Gross National Product. In order to promote the reform of spectrum policy that the Commission is proposing in the revised framework for electronic communications (see here for the text of the draft proposals), nothing less than a New Deal will do - and this is what Reding actually said. In her speech - which at times reads like Molly Bloom’s Soliloquy in James Joyce’s Ulysses (”… yes I said yes I will Yes.”) - she comes to this conclusion:

“Oui je veux le dialogue, oui, je veux un équilibre mais je veux notamment des résultats et je suis convaincue que tous les acteurs de la convergence ont beaucoup gagner d’un New Deal sur les fréquences.”

[Yes I want dialogue, yes I want an equilibrium, but I especially want results and I am convinced that all actors in convergence have a lot to gain from a new deal on radio spectrum]

I am not quite sure if this “New Deal” will really turn out to be such a big deal (once Council and Parliament had their say). But the Commissioner’s “New Deal” campaign of course evokes Franklin D. Roosevelt’s legendary “New Deal” speech - and FDR said then: “This is more than a political campaign; it is a call to arms.” I’m sure Commissioner Reding sees her “New Deal” in rather similar terms.

PS: In case you wondered about the picture above: a small boat on the open sea. Of course it also refers to Reding’s speech, delivered on the island of Capri at an EPRA-meeting, where she said something like: convergence is the end of islands, and convergence means that we are all in the same boat (”… la convergence, c’est en quelque sorte la fin des îles”; “la convergence – si vous me permettez ce jeu de mot – veut dire que nous sommes tous sur le même bateau.”). I’ll add these lines to my list of at least a thouand definitions of convergence.

PPS: And just in case you might ask about the substance of the speech: read for yourself and please tell me if you find any. I acknowledge that now is the time to try to sell the concepts laid out in the (draft) reform proposals to all stakeholders, and basically that is what the speech was about (nothing that Ruprecht Niepold wouldn’t have said already, but without his remarkably modest statement [see slide 21 of this presentation] that the Commission is “gradually gaining experience”). Nothing new under the sun, which is gradually sinking behind the boat carrying all of us on a sea without islands …

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What a strange case was that!* ECJ on teleshopping

Posted on October 18, 2007 | Filed Under digital content

“Call In Quiz-Shows” have been the focus of some attention by national regulators (for instance in Germany and the UK) recently. While typically such “call in”-programs are shown in private TV channels, in Austria even the public service broadcaster ventured into this field by producing a show called “Quiz-Express”, prompting viewers to call a premium rate number (although relatively moderately priced at EUR 0.70 per call) to participate in a so-called “Quiz”. The national regulator brought this to the attention of the Federal Communications Board (Bundeskommunikationssenat), which has jurisdiction over the public service broadcaster.

The relevant question was whether this Call In Quiz-Show was teleshopping within the meaning of the definition given in Article 1f of the “Television Without Frontiers”-Directive. The ECJ now said: it might well be. Of course, the exact wording of the ECJ was slightly different and goes like this:

“… a broadcast or part of a broadcast during which a television broadcaster offers viewers the opportunity to participate in a prize game by means of immediately dialling a premium rate telephone number, and thus in return for payment,
– is covered by the definition given by Article 1(f) of teleshopping if that broadcast or part of a broadcast represents a real offer of services having regard to the purpose of the broadcast of which the game forms part, the significance of the game within the broadcast in terms of time and of anticipated economic effects in relation to those expected in respect of that broadcast as a whole and also to the type of questions which the candidates are asked;
– is covered by the definition given by Article 1(c) of television advertising if, on the basis of the purpose and content of that game and the circumstances in which the prizes to be won are presented, the game consists of an announcement which seeks to encourage viewers to buy the goods and services presented as prizes to be won or seeks to promote the merits of the programmes of the broadcaster in question indirectly in the form of self-promotion.”

So a “Call In Quiz Show” which has no other content than “call in and win” is teleshopping (and bound by the restraints for such programs in the “TV Without Frontiers”-Directive, which for instance limits the maximum duration of teleshopping to three hours per day - except for channels which only broadcast teleshopping). If the “call in”-quiz, however, a is just an interactive element as part of a broadcast which has a purpose and content of its own aside from the “quiz”, then this might - under certain circumstances - be advertising, but not teleshopping.

Further news form the ECJ today: Advocate General Bot delivered the opinion in the
Case C‑125/06 Infront WM AG (see earlier posting here), reaching the conclusion that the Commission’s appeal should be dismissed and the Decision of the Court of First Instance shall stand.

* Shakespeare, Timon of Athens Act III, Scene 2

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Search the market narrowly*: goodbye to Market 15

Posted on October 16, 2007 | Filed Under communication technologies

further reduction! A few days ago, it was “around 50% of the 18 regulated markets today” that were to be taken off the list of relevant markets in the Commission’s Recommendation - according to Commissioner Reding’s speech at the ERG-Meeting in Athens.

Today, according to the press, Reding offered a further discount in this year’s end sale of regulated markets: Competition Commissioner Neelie Kroes convinced Reding to also drop Market 15 - “Access and call origination on public mobile telephone networks” - from the new Recommendation. Instead of 18 markets now, and 8 markets in the draft, the future recommendation will probably comprise only 7 markets, so it is either a 61% or 56% reduction of relevant markets (depending on whether you count the new retail access to the fixed network-market, which includes former markets 1 and 2, as one or as two markets).

If you take the evidence of the Commission Staff Working Paper of July 2007 (pp 408-409), most Member states have not found significant market power on market 15. Only Ireland, Slovenia, Spain, Malta and Cyprus found SMP on that market, with the special aspect of joint dominance in Ireland, Spain and Malta.

So Neelie Kroes obviously made a convincing case to Commissioner Reding, and we will see if as a trade off Kroes can be convinced to accept the functional separation-remedy in the revised framework directive.

* Shakespeare, Pericles Prince of Tyre
(and a PS for the Austrian readers of this blog: go see the production of Pericles at klettenheimers KleinKunstCafé in Vienna - it’s definitely worth it!)

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Blog Inaction Day

Posted on October 16, 2007 | Filed Under communication technologies

October 15th was declared “Blog Action Day”, and some 20.000 bloggers registered to participate: each and every blog was supposed “to tackle the issue of the environment” on that day. Well, contentandcarrier didn’t register, and we didn’t blog anything on the environment.

And yet we did something for the environment: by shutting off the server. Of course our temporary blackout, lasting for a full day yesterday, was not deliberately planned, but rather the unexpected fallout of changes in the server landscape of the Vienna University of Economics and Business Administration, which kindly provides our technical base. Everything is back up and running now, and we apologize for any inconvenience and hope you keep returning to our site.

PS: some of you also have encountered problems with the “keep looking” and “go back”-links at the bottom of our pages - they have been taken care of as well.

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Access to state-held information – a fundamental right ?

Posted on October 16, 2007 | Filed Under fundamental rights

top-secret.jpgAn Austrian lawyer has sought access to a document hold by the Austrian Federal Ministry for Internal Affairs – to the so called handbook on the Niederlassungs- und Aufenthaltsgesetz. It’s a document which contains guidelines for the authorities regarding the application of the Law on Residence and Settlement in Austria. The Ministry refused to provide the lawyer with the requested document. Even when asked by the Austrian Parliament the Ministry refused to publish the document. It argued that it is not obliged to do so (the “Standard” reported). Is that right?

Art 20 § 4 of the Austrian Federal Constitutional Law states that public bodies shall impart information about matters pertaining to their sphere of competence in so far as this does not conflict with a legal obligation to maintain secrecy. But as Art 255 EC Treaty (which regulates the access to European documents) this provision does not formulate a right for a citizen or a person; it’s just laid down as a general principle. Therefore, public authorities are not obliged to impart the requested information on grounds of Art 20 § 4.

Until recently, a right of access to state-held information was neither granted on grounds of Art 10 (freedom of interpretation). The Court of Human Rights repeatedly hold that the right to freedom to receive information as laid down in Art 10 ECHR merely “[…] prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart on him,” and that it „[…] cannot be construed as imposing on the State […] positive obligations to disclose to the public any secret documents or information”.

With the Sdruzeni Jihoceske Matky case from 10. July 2006 the Straßbourg Court seems to strike a new path. For the first time it applied Article 10 ECHR in an access to public documents case. The case concerned a refusal to give an ecologist Non-Governmental organization access to documents and plans regarding a nuclear power station. Although the Court decided that there had not been a breach of Article 10, it explicitly recognized that the refusal by the Czech authorities was an interference with the right to receive information, because the requested documents were related to a matter of public interest.

From this it follows that States are in principal obliged to grant access to documents which are of public concern or an ongoing political debate. It can only refuse the access within the scope of the conditions set forth in Article 10 § 2 of the Convention which implies that such a refusal must be prescribed by law, be based on a legitimate aim and especially must be necessary in a democratic society.

Whether the Austrian Federal Ministry for Internal Affairs Ministry would have been able to justify its refusal under these criteria when brought before the ECHR is questionable. I doubt. Well anyway, due to an anonym sender the handbook appeared and its quite interesting to read.

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Commission Sale: Markets now 50 percent off!

Posted on October 14, 2007 | Filed Under communication technologies

50% offWhen next season’s goods arrive, the old products have to be sold quickly. When regulators need shelf space for all the shiny new “next generation network”-issues, plain old retail markets are going out of fashion. So Commissioner Reding is embarking on a grand sale for “around 50% of the 18 regulated markets today”. (See her speech before the ERG meeting in Athens last week).

Considering that as of now there are 18 markets in the Recommendation on Relevant Markets, “around 50%” should be nine, give or take one. As everyone in the industry (and every reader of our blog) knows, the draft recommendation lists 8 markets to be regulated, which comprise 9 of the current 18 markets (since the only remaining retail market will be access to the fixed network for both residential and non-residential customers combined, the present markets 1 & 2). So there was not much new in Reding’s speech on that issue. But she also made a point (explicitely stating “to be clear about this”), that national regulators will not be excluded from regulating the markets that are not included any more in the recommendation. And then she said:

“However, in the future, national regulators will have to make a convincing case why in such markets, regulation is needed to ensure effective competititon and that competition law alone cannot achieve this.”

I thought that even under the current framework regulators would have to make a convincing case!

What else is there to note from Reding’s speech:

  • Reding calls the future (not so) “Super Agency” the “European Telecom Market Authority”, not European Electronic Communications Market Authority - and it is an integral part of the reform package (probably because “Centralism has no place in Europe”, as Reding also points out in her speech). The roles for the Authority (which should probably rather be called an Agency) and the Commission are clear: the Authority will provide expertise, the Commission will take the decisions.
  • The reason why functional separation, rather than structural separation, is proposed, is - acording to Reding - that the telecom sector is more dynamic than the energy sector (where the Commission just concluded that functional separation was not enough)
  • As for the ERG:
    • It is unfair to criticise the ERG for the “lowest common denominator approach” - but Reding clearly states that the ERG has not made a sufficient contribution to harmonisation of the single market
    • ERG will be reformed (”within the margins of what is institutionally possible”) before the revised framework takes effect
    • and, who would have thought of that, ERG and Commission work together in “closer partnership” (the wording keeps me suspicious)
  • And in the meantime, before the revised framework will take effect, the Commission will make full use of Article 19 of the Framework directive, which provides it with the possibility to issue recommendations “on the harmonised application of the provisions” of the regulatory framework. Coming up next in this line of action are mobile termination rates, Voice over IP and geographic segmentation of markets.

[PS: Reding concedes in here speech that it is “a moment where the lobbying in Brussels is at a peak” - I will come back to this aspect in a later post]

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Promoting European Content Online - Is DRM the right way?

Posted on October 12, 2007 | Filed Under digital content

drm.jpg In a recent speech at the High Level Seminar on European Audiovisual Content Online in Lisbon, Viviane Reding gave an outlook on the forthcoming Communication on Creative Content Online (see the related post here). Among other things the Commission is planning to set up an “EU Platform on Creative Content Online” and will prepare a proposal for a Recommendation on Creative Content Online. According to the Commission the transfer of content services from an offline to the online environment is a major change that will give fresh impetus to the content industry and could therefore help to achieve three related objectives:

• Ensuring that content achieves its full potential in contributing to European
competitiveness;
• Promoting the availability of the great diversity of European content
creation and cultural heritage;
• Fostering users’ active role in content selection, distribution and creation.

The Communication on Creative Content Online will therefore explore actions that could be taken at European level to improve the competitiveness of the European online content production and distribution industry. According to Reding DRM shall be part of these community actions:

“Efficient Digital Rights Management (DRM) systems to manage and protect digital content are viewed as an effective way to secure sustainable roll-out of digital distribution. However, many stakeholders are concerned that the lack of interoperability or standardisation in DRM might hold back the development of digital content services and devices in the longer term.”

Indeed the difficulties with interoperability or standardisation seem to be hard to handle and have lead to inconvenient consumer experiences in the past and consequently reduced business opportunities. In one of the most developed sectors of market for online content - namely digital music downloads - major companies like Amazon therefore have started to carry DRM to its grave by focusing on the offer of DRM-free music. Most curiously one of the most vivid advocates of the DRM idea, Microsoft is jumping on the bandwagon too and will be featuring over a million of DRM-free tracks on its new Zune store going online apperently in November.

Yahoo Music’s general manager Ian Rogers who has been part of the online music business from nearly its inception, makes a point in arguing that DRM has been more of an impediment to the creation of new business models than an enabler and concludes in a recent blogpost:

“I won’t spend another dime paying engineers to build false control, making listening to music harder for music-lovers. I will put all of my energy into making it easier and making the experience better.”

It will be interesting to see how the european approach will look like and if it will present solutions for management and protection of digital content without holding back the development of new business models for digital content services.

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