Estonia is a country that favours free press and the development of its media and entertainment industry. Estonia’s media policy is considered to be in line with the European Union media policy, and in 2019, Estonia ranked 11th in the world in the Press Freedom Index.2
The Estonian government is currently making efforts to attract UK-based broadcasters. According to the European Audiovisual Observatory, 1,203 out of 3,005 TV channels in the EU are based in the UK, which may be looking for a new country of origin (COO) to continue to broadcast under the Audiovisual Media Services Directive (AVMSD)3 terms within the EU.4
Estonia is marketing itself as having sensible broadcasting licence terms alongside the innovative Estonian e-Residency, which can offer a more effective digital business environment.
Estonia’s biggest competitors that are also actively seeking to become the new European broadcasting hub are Luxembourg, the Netherlands and Ireland.5 Estonia’s biggest advantage compared with these other countries is most likely its corporate tax regime: on retained and reinvested profits, the corporate income tax in Estonia is 0 per cent.
II LEGAL AND REGULATORY FRAMEWORK
Broadcasting and video on-demand is regulated by the Media Services Act (MSA).6
The MSA provides the procedure and principles for the provision of audiovisual media services, radio services and for the issuing of activity licences. The Act also sets out the principles of protection of persons who have provided information for journalistic purposes (protection of sources).
According to the MSA, the AVMSD’s COO principle will be applied if the provider of the media services has its head office in Estonia and the editorial decisions about the media service are taken in Estonia.
The Estonian Public Service Broadcaster (ERR) is regulated by the Public Broadcasting Act (PBA).7 The PBA sets out the legal status, objectives, functions, financing and organisation of management and activities of the ERR. The Act states that public broadcasting must be independent in the production and transmission of its programmes, and its objectives are, for example, to support the development of the Estonian language and culture.
The ERR also has an ethics adviser that, according to the PBA, monitors the conformity of the operation of the ERR with the professional ethics and good practices of journalism.
The ethics adviser is appointed by the management board with the approval of the supervisory board of the ERR. The function of the ethics adviser and its independency has at times fallen under criticism, as the adviser is a body operating under the broadcaster and, therefore, may be looking out for the interests of the ERR, rather than being an authority outside of the organisation that could be an unbiased arbitrator for both sides. A draft to change the legislation to make the ethics adviser’s position obsolete with the suggestion to create a new third-party adviser that would be independent from the ERR was submitted to the Estonian Parliament at the end of 2016, but the law was not passed.
Other relevant legislation governing the media and entertainment industry are:
- the General Part of the Economic Activities Code Act, which regulates general conditions and procedures for exercising economic activity;
- the Advertising Act, which sets out the general rules of advertising (specific overriding terms come from the Media Services Act);
- the Child Protection Act;
- the Consumer Protection Act; and
- the Medicinal Products Act.
There are also specific legal acts for certain sectors, such as gambling and state-funded theatres.
Media policies are devised by the Estonian Ministry of Culture, and the most relevant supervisory authority is the Consumer Protection and Technical Regulatory Authority. Under the Ministry of Culture, an expert committee has also been established to regulate the dissemination of works that contain pornography or promote violence or cruelty.
III FREE SPEECH AND MEDIA FREEDOM
i Protected forms of expression
According to the Constitution of Estonia, everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means.8 This right may be restricted by law to protect public order, public morality and the rights and freedoms, health, honour and good name of others. Restrictions may also occur regarding public servants employed by the national government and local authorities to protect state secrets.
The most frequently emerging issue in the Estonian media has been finding a balance between freedom to disseminate ideas and protecting a person’s family and private life.
The Supreme Court of Estonia has stated that a person who is regarded as a public figure is not fully extended this protection as they must endure a higher amount of public scrutiny due to the position they hold in society.9
Interpreting this statement has become somewhat problematic, as in certain cases it can be difficult to determine whether the person in question is a public figure or not. Furthermore, to scrutinise the personal life of a public figure, there needs to be actual public interest for the matter as well.
When the previous President of Estonia, Toomas Hendrik Ilves, was about to marry Ieva Ilves (née Kupce), a press statement was released by the Office of the President, announcing that, after marrying the president, Ieva would not become a public figure. The Supreme Court has stated that a person cannot be regarded as a public figure simply because of their relationship to a public figure (e.g., through marriage).10 For Ieva Ilves, this, of course, was not a possibility since the President’s spouse is also regarded a state representative in Estonia.
There have also been times when journalism has overstepped the line with persons that are not public figures. For example, prior to the 2019 parliamentary elections, one of the biggest newspapers in Estonia published a story about one particular party and its members who had been criminally convicted.11 Some of the people on the list were not actively participating in politics and were just enlisted as party members, therefore, they could not have been regarded as public figures and there was no actual overriding public interest to announce the criminal convictions of these people. What is more, some of the members’ convictions had already expired from the Criminal Records Database, so, according to the law, they had already been given a ‘clean slate’.
Other forms of expression that are restricted are advertising, commercial communications and hate speech, the latter of which is prohibited.
Commercial communications are a form of expression that is restricted by the Media Services Act, the Electronic Communications Act and the Information Society Services Act.
Commercial communications broadcast by a media service provider must be clearly recognisable and distinguishable from the other part of the programme service; surreptitious commercial communication is not allowed.
Furthermore, a media service provider must establish a code of conduct by means of self-regulation regarding inappropriate audiovisual commercial communication that would accompany or be included in children’s programmes. This regards commercial communications of foods and beverages containing nutrients and substances with a nutritional or physiological effect; in particular, those such as fat, trans-fatty acids, salt, sodium and sugars, excessive intake of which in the overall diet is not recommended for children. If the media service provider fails to establish a self-regulating code of conduct, a regulation will be established by the minister responsible for the area instead.
The acts also regulate television and radio advertising and teleshopping, information regarding sponsorship and product placement, which, with certain exceptions, is prohibited.
There are very few legal acts that specifically regulate newsgathering, and in most cases the general legal framework applies.
In addition to laws, the Estonian Newspaper Association has established a code of ethics for the Estonian press.12
Journalists cannot enter onto someone’s property without their permission or conduct covert surveillance, conduct electronic eavesdropping or obtain information in any other unlawful way. Filming and taking photos in public places is allowed, as long as the processing of personal data rules, which come from the Personal Data Protection Act13 (PDPA) and the General Data Protection Regulation,14 are followed. The PDPA states that permission from a data subject for audio or visual recording need not be obtained if, instead, the data subject is notified of the recording in a manner that allows them to understand the fact of recording and gives them an opportunity to prevent the recording if they so wish. The notification obligation does not apply in the case of public events, recording of which for the purposes of disclosure may be reasonably presumed.
Under the PDPA, personal data may be processed and disclosed in the media for journalistic purposes without the consent of the data subject; in particular, the personal data may be disclosed in the media if there is public interest thereof and this is in accordance with the principles of journalism ethics. Disclosure of personal data must not cause excessive damage to the rights of any data subjects.
A method in investigative journalism known as the ‘journalistic experiment’ can be used as a last resort when all other recognised methods have been exhausted yet the public interest on the matter remains high.
There is no recent case law against journalists using the journalistic experiment method. The last case where there is a mention of a journalistic experiment being used comes from a 2012 judgment from Harju County Court, where a man was sentenced to one year and three months’ imprisonment for trying to persuade what he thought was an 11-year-old girl in an online chat room to meet with him and perform sexual acts with him. The girl was actually an adult journalist, performing a journalistic experiment.15
iii Freedom of access to government information
The freedom to access government information is regulated by the Public Information Act.16 Public information is information that is recorded and documented in any manner and on any medium and that is obtained or created upon performance of public duties provided by law or legislation issued on the basis thereof.
Holders of public information are required to ensure access to the information in their possession under the conditions and pursuant to the procedure provided by law in the quickest and easiest manner possible.
The law outlines the basis upon which a request for information can be refused by the holder (e.g., if the person requesting the information has not made evident enough which information the request has been made for).
The head of an agency, who is a holder of public information, may establish a restriction on access to information and classify information as information intended for internal use.
Case law on the matter includes a recent ruling from the Tallinn Administrative Court where a journalist requested documentation from the Estonian Social Security Agency (SSA) about the discontinuance of special pension payments to a person who had been accused of committing treason.17 The journalistic interest behind this request was to find out whether the current legislation is sufficient enough to enable the discontinuance of distributing the state’s budget to traitorous persons.
The SSA denied the request, stating that while treason itself does not per se provide a basis for the discontinuation of pension payments, there are other legitimate bases for that. Nevertheless, making public the pension information of a specific data subject would not be necessary for that type of analysis. In addition, the SSA did not find an exception for the request under the PDPA to grant the journalist access to the personal data of this certain data subject.
The journalist filed a complaint to the Estonian Data Protection Agency, and afterwards, a lawsuit against both government agencies to the Tallinn Administrative Court. The complaint claimed that if the SSA’s decision to deny the requested information was based on insufficient reasoning on the journalist’s part, the SSA should have provided guidelines on which grounds such information would be released. The Administrative Court ruled that the holder of the information is not responsible to provide this type of guidance.
Other legislation that regulates access to government information is the Response to Memoranda and Requests for Explanations and Submission of Collective Proposals Act, which stipulates that the state or local government authorities shall provide explanations free of charge to questions concerning the legislation and drafts thereof prepared by such authorities, the legislation that is the basis for the operation thereof, and their competence and legislative activities. The Archives Act governs the activities of the National Archives and access thereto.
iv Protection of sources
The MSA gives protection to sources of information, stating that a person who is processing information for journalistic purposes shall have the right not to disclose the information that would enable identification of the source of information. Furthermore, consent of the source is required in order to disclose any information that would enable identification of the aforementioned.
This requirement is dismissed if the source has knowingly provided false information. In this case, a journalist and a source are seen as having a contractual relationship and if one of the parties breaches his or her duties, the other one is no longer bound by his or hers either.
The Code of Criminal Procedure18 provides certain grounds for a journalist to be obligated to disclose information about his or her sources.
Estonia does not have any relevant case law on the matter.
v Private action against publication
The case law in Estonia awards claimants with non-patrimonial damages, but in most cases the awarded amounts are quite low.
The Estonian Law of Obligations Act19 states that, in the case of violation of personality rights, including defamation of a person, the aggrieved person shall be paid a reasonable amount of money as compensation for non-patrimonial damage.
When interpreting this ‘reasonable amount’, the Supreme Court has repeatedly stated that the amount of non-patrimonial damage has to reflect and be in accordance with the general well-being of society.20 Therefore rewarded amounts have remained rather low, as general income rates in Estonia are low compared with other western countries.
When patrimonial damages are awarded, the aim is to place the aggrieved person in a situation as close as possible to that which the person would have been, had the damage not occurred. For non-patrimonial damages, the bases on how much damages can be awarded are the gravity and scope of the violation, the conduct and attitude of the person who caused the damage and the need to exert influence upon the person who caused the damage to avoid causing further damage.21
The Supreme Court has stated, in a case concerning two plaintiffs who had filed a lawsuit against a publisher asking for damages for breach of their private lives, that the burden of proof lies on the plaintiff and the court needs to be able to determine that some sort of moral damage has occurred, the damage has been caused unlawfully, no circumstances overruling the unlawfulness have occurred and the defendant is at fault for causing the damage.22
In this case, the court stated that where a newsgatherer has unlawfully breached someone’s privacy, to determine the amount of non-patrimonial damages to be awarded, the scope of the violation should first be analysed. For example, whether the information was published only in a paper edition or also on the internet needs to be taken into account, as the news is more likely to reach a bigger audience through the internet. The court also stated that in these types of cases where the defendant is a journalistic publisher, persons need to be protected from a forced commercialisation of their lives and the motive for publishing needs to be determined, since someone’s privacy cannot be violated simply with the aim of making a profit.
Noteworthy in this case is also the fact that one of the plaintiffs was a minor and neither one of the plaintiffs had given his or her permission to publish the story. In their suit they asked the court of the lowest instance to award a fair amount of damages. Both plaintiffs were awarded damages in the amount of €2,500, so the defendant had to pay damages of €5,000 in total. The plaintiffs appealed the decision, stating that, given the circumstances, this was not a fair amount and that the fact that the defendant was a business was not fairly taken into account. The Court of Appeal and the Supreme Court did not change the ruling and found the damages fair and reasonable.
vi Government action against publication
No government action against publication has been initiated in Estonia. Sputnik, a pro-Russian propaganda publisher, has been condemned by the government, and politicians are not allowed to give interviews to the publisher, but no other examples can be found at this time.
IV INTELLECTUAL PROPERTY
i Copyright and related rights
According to the Estonian Copyright Act,23 literary, artistic and scientific works are protected by copyright. Works protected by copyright are an original result in an objective form, and can be perceived and reproduced in this form either directly or by means of technical devices. A work is original if it is the author’s own intellectual creation. Works are protected by copyright regardless of the purpose, value, specific form of expression or manner. This also means that the registration or deposit of a work or completion of other formalities is not required for the work to be protected by copyright. Copyright in a work is created in the moment of expression of the work in any objective form that allows the perception and reproduction of fixation of the work. Content of copyright is constituted by moral and economic rights. Authors’ moral rights are inseparable from the author’s person and, therefore, non-transferable. The economic rights, however, can be transferred as a single right or as a set of rights for a charge or free of charge. There are some forms of works that are not protected by copyright under Estonian law, such as:
- ideas, images, notions, theories, processes, systems, methods, concepts, principles, discoveries, inventions and other results of intellectual activities that are described, explained or expressed in any other manner in a work;
- works of folklore, legislation and administrative documents (acts, decrees, regulations, statutes, instructions, directives, etc.) and official translations thereof;
- official symbols of the state and insignia of organisations (flags, coats of arms, orders, medals, badges, etc.);
- news of the day;
- facts and data; and
- ideas and principles that underlie any element of a computer program.
The term of copyright is the life of the author and 70 years after his or her death, irrespective of the date the work is lawfully made available to the public.
Jill Greenberg filed an action against Estonian political party Keskerakond and against non-profit organisation Vaba Ajakirjandus with a claim of indemnification of monetary loss of €37,500 and non-patrimonial damage of €20,000. Jill Greenberg is a notable portrait and animal photographer in the United States whose most famous work is photo series End Times, containing 32 photo portraits depicting toddlers crying. Newspaper Kesknädal used a banner from 31 August 2011 to 30 September 2011 on its website illustrated with one of Jill Greenberg’s crying toddler photos without any reference to the photographer. Furthermore, the photo had been cropped, flipped and modified without her prior authorisation. To top it all, the newspaper banner was reproduced as a screen caption to the political party’s Facebook page. Therefore, the moral and economic rights belonging to Jill Greenberg had been breached by the newspaper and by the political party.
Keskerakond argued that it is not obliged to indemnify Jill Greenberg because it merely reposted the newspaper’s banner and this did not constitute a new breach. The newspaper argued that the plaintiff has not substantiated the sum of her claim. Obtaining a photo similar to the plaintiff’s photo online would not cost more than €20, therefore the licence fee using the plaintiff’s photo would not have been as high, as the plaintiff claims it to be. In addition, Estonian case law does not recognise indemnification for non-patrimonial damage in relation with such breach. The Supreme Court found that the defendants’ argument that similar photo could have been obtained for €20 is not a valid argument, because only the value of the specific piece is relevant when calculating the hypothetical licence fee. With regard to indemnification for non-patrimonial damage, the Supreme Court stated that according to Estonian law non-patrimonial damage can, indeed, be indemnified. However, in terms of intellectual property breach the non-patrimonial indemnification requires a culpable act by the breaching party. The mere breach is a sufficient basis for indemnification. Indemnification for non-patrimonial damage on the other hand is based on a culpable act. The Supreme Court sent the case back to lower courts for a review and the dispute has still not been resolved.24
ii Personality rights
Personality rights are rights that are acknowledged in the legal system of many states. In these legal systems, an individual’s name, likeness or other indication of identity are recognised as publicity rights, a type of property interest (i.e., intellectual property) that can be assigned or licensed.25 In Estonia, however, personality rights do not belong in the sphere of intellectual property law. Rather, personality rights have remained where they originated – in the sphere of privacy rights.
Under Estonian law, copyrights protect the work or intellectual creation of an author. Since a person’s name, identity and image are not a creation or a work, these traits are not protected as intellectual property. This does not, however, mean that an individual possesses no control of his or her name, identity, etc. Indeed, protection regarding personality rights is regulated under tort law. Unjustified use of a person’s name, image or breach of the inviolability of the private life is a tort under Estonian regulation. This means that commercialising someone’s identity without his or her authorisation can bring about an action for compensation of damage and a claim to stop the behaviour causing the breach of personality rights.
The other tort considered as breach of personality rights is the disclosure of incorrect information by incomplete or misleading disclosure of factual information concerning a person or his or her activities. This regulation can be enforced in a situation where, for example, a product is promoted with a claim that a certain famous person endorses the product in question. In such case, the certain famous person has the right to demand the refuting or correction of such information.26
There have been two interesting cases where personality rights were breached in the realm of film production.
The film Magnus was made about a boy who had committed suicide in 2000. The mother of the young man who had committed suicide filed an action with the court to prohibit any public screening of the film in Estonia, and, in 2007, the screening of the film was prohibited in Estonia. Regardless, the film was entered into the Cannes Film Festival in the same year. In 2008, the court prohibited any public screening in any country for seven years. Nevertheless, the film was screened in some Estonian cinemas. Due to the breach of prohibition, a new proceeding was commenced, with a potential 30-year long screening prohibition on the film.27 A circuit court ruling came into force on 27 April 2010, which prohibited any screening or any publication of the film globally until 2025.28
The publication of the film was prohibited because the event and persons in the film were too easily traceable to the real-life persons; especially because the role of the protagonist’s father was played by the boy’s actual biological father, who was engaged in the events that led to the boy’s suicide. Since the courts ruled that the film was intruding on the personal life of the mother and causing her mental damage, the release of the film was prohibited.29
In another case, however, the courts ruled in favour of the director and producer of the film.30 Sangarid, a film telling the story of four young men escaping from Soviet Estonia to Sweden, was produced and screened in Estonia. Since the film was loosely based on the lives of actual real-life persons, three of them filed an action with a claim of €25,000 for non-patrimonial damage for breach of their privacy. The courts ruled that the plaintiffs were insincere and wished to profit from the director’s intellectual property. In addition, the courts found that the events in the film relating to the life of the plaintiffs were too ambiguous and unspecific to be traced back to these plaintiffs, arguing that many Estonians in that era led similar lives and experienced similar destinies. Moreover, the film was mainly composed of fictitious events and details, therefore the plaintiffs were not identifiable, and the average audience was unable to tell which events could have been based on real-life events and which events were fictitious.31
iii Unfair business practices
The most common unfair business practices in intellectual property law are related to unlawful reproduction of someone’s work (intellectual property) and failure to pay authors remuneration when using someone else’s works. The following are some noteworthy cases regarding these problems.
Sanoma Baltics v. Eesti Ajalehed and Delfi
Sanoma Baltics owned the web platform www.auto24.ee where users can upload advertisements for selling vehicles. The defendants reproduced the advertisements from the plaintiff’s website to advertise the same vehicles on their own websites. Sanoma Baltics filed an action against Eesti Ajalehed and Delfi for unlawful reproduction of the advertisements, demanding €9,600 for loss of licence fees. The plaintiff stated that, even though photos and advertisements are created by users, the users transferred the copyright to the plaintiff when they agreed with the plaintiff’s terms of service. The plaintiff owns the copyrights to the objects created on the basis of his investment: the database, the software and the graphic design of the website, and the photos for which copyright was assigned to him by users. The plaintiff found that it is both a database protected as an original work (including a collective work) and a database with sui generis protection.
The defendants argued that the database is not protected with copyright because of its lack of originality. They found that it is an objective collection of data, lacking any decision-making or one person’s personal style. Second, they found that the database does not fall in the scope of sui generis protection because compiling such data did not need any significant investments from the plaintiff. The Supreme Court ruled that the website is to be deemed as original work and, therefore, it is protected with copyright, in addition the website constituting a database with sui generis protection. The court found the determining factor for ruling the database as an original work was the fact that www.auto24.ee users had transferred the copyright to the plaintiff and this fact was uncontested by the defendants. The database was protected with sui generis protection because the court found that creating such a website, maintaining the servers for the advertisements and the effort of the staff put into servicing the website, is to be considered as a significant investment.32
Estonian Authors’ Society v. Viasat
The Estonian Authors’ Society (EAÜ) filed an action against Viasat to either refrain from retransmitting the Estonian TV channels (ETV, ETV2, Kanal2, TV and Kanal11) or pay an author’s remuneration of €285,346 to EAÜ for satellite retransmissions of these channels.
The EAÜ stated that Viasat unlawfully retransmitted Estonian broadcasters’ TV shows to Latvian audiences.
Viasat argued that it does not commit any act deemed as communicating work to the public (i.e., transmit), it merely provides technical solutions as a service to broadcasters who transmit their signal via Viasat’s satellite, using microwave technology. The first and second instant courts ruled in favour of the EAÜ. The Supreme Court, however, dismissed the former rulings and sent the case back to circuit court for a review. In the end, the courts ruled in favour of Viasat, arguing that the input of TV programmes’ signals is under the control of broadcasters and, therefore, it is broadcasters that communicate the channels to the end-user. According to the Estonian Copyright Act, only persons who communicate a work to the public are obligated to pay an author’s remuneration. Therefore, the courts found that Viasat, as a technical service provider, is not obliged to pay an author’s remuneration to the EAÜ for the retransmission of the Estonian TV channels.33
EAÜ v. City of Tartu
The EAÜ filed an action against the city of Tartu with a claim to pay remuneration of €81.55 to an author. A Tartu municipal secondary school held a concert where the students, the alumni and the employees of the school performed different songs but did not pay the standard fee that is required for publicly performing songs created by someone else. The city of Tartu built its case on the fact that using authors’ works in the direct teaching process in educational institutions by the teaching staff and students is not prohibited. The problem was, however, that the concert was held outside the school’s premises. In addition, tickets for the concert were sold publicly. Therefore, the courts ruled in favour of the EAÜ and found that the city of Tartu is obliged to pay the author’s remuneration of €81.55.34
V COMPETITION AND CONSUMER RIGHTS
During the past year, some prominent mergers of large and medium-sized media companies operating in Estonia took place.
The merger control of Estonian entities is carried out by the Estonian Competition Authority (ECA), unless the threshold established under the EU law35 is reached and, in this case, the competent authority for merger control is the European Commission. The mergers of nine media companies, which took place between September 2018 and September 2019, were inspected by the ECA and all were cleared without any additional conditions.
The reasons for media companies’ merger and acquisition (M&A) transactions are diverse; for instance:
- the aspiration to enter into the media market, as it was for the Alexela Varahalduse AS and its parent company Alexela Group OÜ. The group operates in the field of energy, real estate, metalworking and financial investment administration and has now acquired control over the newspaper publishing company AS Õhtuleht Kirjastus;36
- the termination of business activity, as it was for Osaühing Põlva Koit, which sold its intellectual property to a huge media company, AS Postimees Grupp;37
- when the telecommunications, radio and printed media company AS Eesti Meedia acquired the advertisement company Baltic Media Services OÜ, it justified the transaction with simplification of workflow processes since the acquired company had already been providing radio advertisement services to the buyer;38
- AS Eesti Meedia acquired the majority stake in (at that time yet-to-be-established) Eesti Audiovisuaalse Kultuuripärandi OÜ, with the intention of bringing various classic Estonian TV series and films to the Estonian viewer;39
- the desire to expand businesses within, or into, whole new markets in the media and marketing communications sectors;
- the intention to contribute more to local film industry development; and
- to instigate sector-based financial investments.
The increasing trend of M&A transactions in the media and telecommunications sector shows the interest of both Estonian and foreign media companies to invest in the sector and, therefore, provide better quality media, entertainment and advertisement content to Estonian viewers. The Estonian television and motion picture industry develops rapidly, with more quality and high-budget pieces of entertainment emerging every year. Hence, the continuing growth in investments and M&A transactions can be expected in the future.
Considering the media and entertainment sector in Estonia is still relatively small, no major or remarkable regulations in respect of consumer rights have emerged in the past few years. Estonia is an avid supporter of net neutrality; hence, no consumer disputes have arisen on that ground and no significant advancements have taken place. The ECA has, nevertheless, expressed its view on plans to establish the 5G network and regulatory matters that entail its establishment.40 Once available, the 5G network will without a doubt influence how Estonians consume media and entertainment, which, in turn, will precipitate developments in both sectors.
VI DIGITAL CONTENT
The requirements for information society service providers, and the organisation of supervision and liability that lies upon them are set forth in the Information Society Services Act.41 In practice, this Act concerns apps and other service providers, including those in the media and entertainment sectors. The Act implements the rules on advertising, notification obligations, data transmission and disclosure for such services. Pursuant to the Act, a service provider is not obliged to monitor information upon the mere transmission, provision of access, temporary storage in cache memory or at the request of the recipient of the service, nor is the service provider obliged to actively seek facts or circumstances indicating illegal activity. In respect of the Act, one court case has been tried in the Supreme Court of Estonia.42 The plaintiff of the case filed the lawsuit against an internet forum for disclosing false data about the person who allegedly posted insulting commentaries about the plaintiff on that respective forum. This resulted in a dismissed court case against that person, therefore, causing not only non-patrimonial damage to the plaintiff as a result of such commentaries, but also patrimonial damage (i.e., procedural costs of the ‘false’ defendant that the plaintiff had to bear). While the plaintiff did not use the Information Society Services Act as the basis for her claim, the Supreme Court expressed that, in theory, it could be a basis for similar claims.
Another case concerning the Act took place at the Tallinn Circuit Court,43 where the court sought a preliminary ruling from the European Court of Human Rights44 for the definition of ‘information society service’ in the context of IP law. The most famous court case in connection with liability of a website – in particular, a news portal – is the Delfi case that has made its way to the European Court of Human Rights. This landmark case found that Estonia has acted in compliance with the law for holding Delfi liable for defaming comments posted on its news portal and has since been cited in several other court cases that followed.45
No other remarkable case law developments have taken place recently. It can be anticipated, however, that with the upcoming implementation of European Union law,46 new case law and regulatory provisions will be initiated.
VII CONTRACTUAL DISPUTES
In the Estonian jurisdiction, the majority of disputes related to the media and entertainment sector are non-contractual disputes rather than contractual disputes. These disputes usually relate to the unlawful reproduction of authors’ work and trademark issues. Another notable segment in case law regarding the media and entertainment sector are breaches of advertisement law; however, these breaches are processed in administrative proceedings.
VIII YEAR IN REVIEW
In the past 12 months, the most notable events in the Estonian entertainment sector have certainly taken place in the film industry.
In 2016, the Estonian Ministry of Culture launched a pilot project, Film Estonia, to support film and series production in Estonia based on foreign capital. The aim of the programme is to further cooperation opportunities of Estonian and foreign film producers for making films in Estonia. A producer can be reimbursed with up to 30 per cent of local production costs.
The most notable example of the programme attracting a foreign production to Estonia is the film Tenet, directed by Christopher Nolan, which is scheduled to be released by Warner Bros Pictures in July 2020. Filming in Estonia took place in June and July 2019 in the streets of Tallinn and the Tallinn city government permitted temporary road closures and detours to enable the filming.
The production costs in Estonia amounted to €16 million, so the estimated return from Film Estonia will be almost €5 million. In addition to enhancing cooperation with foreign film producers, the Estonian government believes that other sectors, such as tourism, will also benefit from these investments, as film fans tend to visit production locations.47
Another noteworthy event in the Estonian entertainment sector concerns the ‘empty cassette remuneration’. The current problem is Estonia’s outdated legislation from 2006, which stipulates that the manufacturer and importer of empty cassettes, such as DVDs and VHSs, are charged with an empty cassette fee.48 The idea is to collect the fees from different authors’ societies and reimburse owners of copyright for their creation (film, music video, song, etc.) being recorded for personal use by the buyer of the empty cassette. Nowadays, no one buys DVDs or VHSs, but the creators’ empty cassette fee system remains the same, while users have moved on to more modern platforms (apps such as Spotify). Estonian artists have initiated a claim against the Estonian government for loss of profit for €38 million for the past four years, for which a judgment has not yet been rendered.49
In the coming year, the main issues and legal developments for Estonia will be to adopt two new directives into legislation by 2021: the Directive on Copyright in the Digital Single Market50 and the Directive laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes.51
Discussions on how the government shall adopt the directives into Estonian legislation have started, but no public draft acts are yet available. Furthermore, adopting the Directive on Copyright in the Digital Single Market may prove to be a challenge for Estonia, as many politicians have openly opposed it, and during the vote in the European Parliament, Estonia remained impartial with only one of its MEPs voting for the Directive.
1 Mihkel Miidla is a partner and Kirsi Johanna Koistinen is an associate at Sorainen.
4 European Audiovisual Observatory, Brexit report, Strasbourg, 28 June 2018, available at www.obs.coe.int/en/web/observatoire/home/-/asset_publisher/9iKCxBYgiO6S/content/29-of-all-european-tv-channels-are-based-in-the-uk?_101_INSTANCE_9iKCxBYgiO6S_viewMode=view/.
5 Broadband TV News, ‘Levira makes post-Brexit pitch’, www.broadbandtvnews.com/2019/05/02/levira-makes-post-brexit-pitch/.
7 Available in English at https://www.riigiteataja.ee/en/eli/501042019011/consolide.
8 Available in English at https://www.riigiteataja.ee/en/eli/521052015001/consolide.
9 Supreme Court of Estonia, 13 May 2005, Case 3-2-1-17-05.
10 Supreme Court of Estonia, 26 August 1997, Case 3-1-1-80-97.
11 Joosep Tiks, ‘Praegused ja endised kriminaalid Eesti 200-s. Kaks visati välja, üks lahkus ise, ülejäänutele andestatakse’, Eesti Päevaleht, 16 January 2019.
15 Harju County Court, 17 December 2012, Case 1-12-11607/4.
16 Available in English at https://www.riigiteataja.ee/en/eli/529032019012/consolide.
17 Tallinn Administrative Court, 22 February 2019, Case 3-18-544.
18 Available in English at https://www.riigiteataja.ee/en/eli/515052019002/consolide.
19 Available in English at https://www.riigiteataja.ee/en/eli/507032019001/consolide.
20 For example, Supreme Court of Estonia, 25 September 2013, Case 3-2-1-80-13.
21 https://www.riigiteataja.ee/en/eli/507032019001/consolide, Section 134.
22 The Supreme Court of Estonia, 26 June 2013, Case 3-2-1-18-13.
23 Available in English at https://www.riigiteataja.ee/en/eli/504042019001/consolide.
24 The Supreme Court, 29 November 2017, Ruling 2-14-56641.
25 B Beebe, et al. Trademarks, Unfair Competition, and Business Torts. Aspen Publishers, 2011, Chapter 3.
26 P Varul, et al. Võlaõigusseadus III. Kommenteeritud väljaanne (Law of Obligations Act III. Commented edition). Juura, 2009, p. 664.
27 Estonian Film Database’s article about Magnus, available at www.efis.ee/et/filmiliigid/film/id/775/huvitavat-lugemist.
28 ‘“Magnus” keelu all 2025 aastani’, Eesti Päevaleht, 28 April 2010.
29 D Hanschmidt, ‘Kohus keelas filmi “Magnus” näitamise seitsmeks aastaks’, Postimees, 13 May 2008.
30 R Ernits, ‘Mängufilmi “Sangarid” tegijad said riigikohtus võidu’, ERR news, 18 June 2019.
31 Tallinn Circuit Court, 9 January 2019, Decision 2-16-16730.
32 The Supreme Court, 6 June 2012, Decision 3-2-1-71-12.
33 The Supreme Court, 29 May 2013, Decision 3-2-1-50-13.
34 The Supreme Court, 27 February 2017, Decision 3-2-1-159-16.
35 Council Regulation (EC) No. 139/2004, Article 1.
36 Competition Authority, 19 June 2019, Decision 5-5/2019-031.
37 Competition Authority, 14 June 2019, Decision 5-5/2019-030.
38 Competition Authority, 18 October 2018, Decision 5-5/2018-065.
40 Competition Authority, 10 July 2019, Decision 5-5/2019-035.
42 Supreme Court of Estonia, 6 June 2018, Case 2-16-14655.
43 Tallinn Circuit Court, 26 November 2018, Case 2-14-6942.
44 European Court of Human Rights, 10 October 2013, Delfi AS v. Estonia (Application No. 64569/09).
45 Columbia University Global Freedom of Expression, Delfi AS v. Estonia (case significance), available at https://globalfreedomofexpression.columbia.edu/cases/delfi-as-v-estonia/.
46 For example, Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services. Available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L0770&from=EN.