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Iris Anglais 2003/09 •• IRIS LEGAL OBSERVATIONS OF THE EUROPEAN AUDIOVISUAL OBSERVATORY 2003 - 9 GB–United Kingdom: INTERNATIONAL Hutton Inquiry Judge Rules against Televising Witnesses Giving Evidence 8 EFTA Definition of “Independent Producer” Amended 9 Surveillance Authority: HR–Croatia: Moving against Liechtenstein for Failure HRTL Wins the Bid for the Third National to Implement the Conditional Access Directive 2 TV Concession 9 Law on Electronic Media Enters into Force 9 COUNCIL OF EUROPE HU–Hungary: European Court of Human Rights: Government Approved the Communications Case of Pedersen and Baadsgaard v. Denmark 2 Authority’s Annual Report 10 European Court of Human Rights: IT–Italy: Case of Murphy v. Ireland 3 Italian Main Broadcasters are Dominant on the Market 10 European Court of Human Rights: Case of Ernst and Others v. Belgium 3 LT–Lithuania: Developments in Audiovisual Legislation 11 EUROPEAN UNION NL–Netherlands: Refusal of Dutch Broadcasting Organisation European Commission: to License its Broadcasting Schedules Communication Concerning an International is an Abuse of a Dominant Position 11 Instrument on Cultural Diversity 4 PL–Poland: European Parliament: Planning of Digital Terrestrial Television 12 Resolutions on Human Rights and Fundamental Rights Adopted 4 SK–Slovak Republic: Increased Licence Fees European Parliament: Resolution for Public Service Broadcasting 12 on the Television Without Frontiers Directive 5 European Parliament: RELATED FIELDS OF LAW Resolution on Cultural Industries 5 DE–Germany: New Copyright Law Enacted 13 FR–France: NATIONAL Audiovisual Communication Act Applies to Offences Committed on the Internet against Legislation concerning the Press 13 BROADCASTING Bill Intended to Reconcile Protection AT–Austria: from Unacceptable Use of One’s Image Consultation on Markets with Freedom of Expression 13 for Broadcasting Transmission 6 IE–Ireland: BE–Belgium/Flemish Community: Developments concerning Freedom of Information 14 Modifications to the Broadcasting Act regarding the Competences of the Media Authority NL–Netherlands: and the Right of Reply 6 Court of Appeal Ruling in Scientology Case 14 CS–Serbia and Montenegro: RU–Russian Federation: Delays in Implementation Changes in the Mass-media Law 14 of Audiovisual Sector Regulations 7 TR–Turkey: DE–Germany: Implementation of the Harmonization Packages 15 New KEK Annual Report Published 7 US–United States: Coordinated Introduction of DVB-T Prevention of Posting Encryption Software and Digital Radio Necessary 8 is Not an Infringement of Free Speech 15 FR–France: PUBLICATIONS 16 France Has Submitted to the European Commission Its List of Events of Major Importance 8 AGENDA 16 •• IRIS LEGAL OBSERVATIONS The Conditional Access Directive seeks to combat the OF THE EUROPEAN AUDIOVISUAL OBSERVATORY use of illicit devices which give unauthorised access to protected services, such as premium rate television (pay- TV), radio and information society services. The Directive requires that EEA States take the necessary measures to prohibit, inter alia, the manufacture, sale, installation and marketing of equipment or software that provides access to pay-TV services without the authorisation of INTERNATIONAL the service provider. The Directive also requires that the measures taken against such illegal activities be backed EFTA by effective and dissuasive sanctions. Due to delays encountered with the incorporation of Surveillance Authority: Moving against Liechtenstein the Act into the EEA Agreement, the original compliance for Failure to Implement date provided for by the Directive was deferred for the the Conditional Access Directive EEA EFTA States. Liechtenstein was under an obligation On 17 July 2003, the EFTA Surveillance Authority to implement the provisions of the Directive into its delivered a reasoned opinion to Liechtenstein for that national legal order by 1 October 2001, but has hitherto country’s failure to implement the Conditional Access failed to take the necessary measures to ensure com- Directive (Directive 98/84/EC of the European Parlia- pliance with the Act. The EFTA Surveillance Authority ment and of the Council of 20 November 1998 on the had commenced formal infringement procedures against Frank Büchel that state at the beginning of 2002. EFTA legal protection of services based on, or consisting of, Surveillance conditional access – see IRIS 2003-6: 4 and IRIS The purpose of a reasoned opinion is to give the State Authority 1998-10: 6). concerned a last chance to take corrective measures before the Authority decides whether to bring the matter •“Liechtenstein fails to implement the Parental Leave Directive and the Conditional Access before the EFTA Court. The EFTA Surveillance Authority Directive”, Press Release of the EFTA Surveillance Authority PR(03)20, 22 July 2003, requested the Government of Liechtenstein to take the available at: http://www.eftasurv.int/information/pressreleases/2003pr/dbaFile4258.html necessary measures to comply with the reasoned opinion EN within three months. ■ COUNCIL OF EUROPE European Court of Human Rights: tion for defamation of a Chief Superintendent. The jour- Case of Pedersen and Baadsgaard v. Denmark nalists, Pedersen and Baadsgaard, had produced two pro- grammes about a murder trial in which they criticised the In Strasbourg, two journalists of Danmarks Radio (Dan- police’s handling of the investigation. At the end of one ish national television) complained about their convic- of the programmes, the question was raised if it was the The objective of IRIS is to publish information Center at the New York Law School (USA) – Susanne Nikoltchev, European Audiovisual on all legal and law related policy Harald Trettenbrein, Directorate General EAC- Observatory – Florence Lapérou & Géraldine developments that are relevant to the C-1 (Audiovisual Policy Unit) of the European Pilard-Murray, post graduate diploma in Droit European audiovisual sector. Despite our Commission, Brussels (Belgium) – Alexander du Multimédia et des Systèmes d’Information, efforts to ensure the accuracy of the content Scheuer, Institute of European Media Law University R. Schuman, Strasbourg (France) – of IRIS, the ultimate responsibility for the (EMR), Saarbrücken (Germany) – Bernt Candelaria van Strien-Reney, Law Faculty, truthfulness of the facts on which we report is Hugenholtz, Institute for Information Law National University of Ireland, Galway with the authors of the articles. Any opinions (IViR) at the University of Amsterdam (Ireland) – Sabina Gorini, Institute for expressed in the articles are personal and (The Netherlands) – Christophe Poirel, Media Information Law (IViR) at the University should in no way be interpreted as to Division of the Directorate of Human Rights of Amsterdam (The Netherlands) – Natali represent the views of any organizations of the Council of Europe, Strasbourg (France) – Helberger, Institute for Information Law participating in its editorial board. Andrei Richter, Moscow Media Law and Policy (IViR) at the University of Amsterdam (The • Publisher: Center (MMLPC) (Russian Federation) Netherlands) – Peter Strothmann, Institute European Audiovisual Observatory • Council to the Editorial Board: of European Media Law (EMR), Saarbrücken 76, allée de la Robertsau Amélie Blocman, Charlotte Vier, (Germany) F-67000 STRASBOURG Victoires Éditions • Marketing manager: Markus Booms Tel.: +33 (0)3 88 14 44 00 • Documentation: Alison Hindhaugh Fax: +33 (0)3 88 14 44 19 • Typesetting: Pointillés, Hoenheim (France) E-mail: [email protected] • Translations: Michelle Ganter (co-ordination) – • Print: Nomos Verlagsgesellschaft mbH & Co. http://www.obs.coe.int/ Brigitte Auel – Véronique Campillo – France KG, Waldseestraße 3-5, 76350 Baden-Baden Courrèges – Marco Polo Sàrl – Katherine (Germany) • Comments and Contributions to: Parsons – Stefan Pooth – Erwin Rohwer – [email protected] Robert Spence – Catherine Vacherat • Layout: Victoires Éditions • Executive Director: Wolfgang Closs • Corrections: Michelle Ganter, European ISSN 1023-8565 • Editorial Board: Susanne Nikoltchev, Audiovisual Observatory (co-ordination) © 2003, European Audiovisual Observatory, Co-ordinator – Michael Botein, The Media Francisco Javier Cabrera Blázquez & Strasbourg (France) ★ ★★ MOSCOW MEDIA LAW AND POLICY CENTER, ★ ★ MMLPC EMR★ ★ S Institute for Information Law Institute★ for European Media★ Law EUROPEAN COMMISSION NYL ★ ★ ★ Auteurs &Media 2 IRIS 2003 - 9 •• IRIS LEGAL OBSERVATIONS The Court is of the opinion that the television pro- OF THE EUROPEAN AUDIOVISUAL OBSERVATORY gramme left the viewers with the impression that the named Chief Superintendent had taken part in the suppression of a report in a murder case, and thus com- mitted a serious criminal offence. The Court accepts that journalists divulge information on issues of general interest, provided however “that they are acting in good faith and on accurate factual basis and provide ’reliable Chief Superintendent who had decided that a report and precise’ information in accordance with the ethics of should not be included in the case or who concealed a journalism”. The Court is of the opinion that it is doubt- witness’s statement from the defence, the judges and the ful, having regard to the nature and degree of the accu- jury. Both journalists were charged with defamation and sation, that the applicants’ research was adequate or suf- convicted. They were sentenced to 20 day-fines of ficient to substantiate their concluding allegation that DKK 400 (EUR 53) and ordered to pay DKK 100.000 the Chief Superintendent
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