In Lithuania, the media and entertainment industry enjoys an adequate level of freedom, a well-balanced legal regulation and an overall environment conducive to innovation and development.
Television, radio and news websites are the most popular forms of media, whereas the consumption of print media is undergoing the global downward trend. In June 2019, there were 2.6 million internet users – almost 91 per cent of the population.2 The large number of internet users has led to a rapid growth of alternative forms of media, such as social networks, streaming portals and crowdfunded projects.
Media companies operate under market economy conditions. The ownership of national and regional media is concentrated among a small number of domestic and foreign companies. Private broadcasters compete with the public networks run by Lithuanian National Radio and Television. The state supports media by providing partial financing for cultural, media security, media literacy and educational projects.
In 2019, Lithuania ranked 30th out of 180 countries in the Press Freedom Index,3 outranking such states as France, the United Kingdom and the United States. Although the media are free and operate independently of the state, anti-Western rhetoric from Russian media targeting the Baltic states has prompted tighter controls.4
II LEGAL AND REGULATORY FRAMEWORK
The LPIP establishes the procedure for collecting, producing, publishing and disseminating public information and the rights, duties and liability of producers and disseminators of public information, their participants, journalists and institutions regulating their activities. The law establishes licensing and notification requirements for broadcasting (TV, radio) organisations, limitations on ownership, requirements for media content, programme composition, language, advertising restrictions, ethics, etc.
Other relevant provisions reside in:
- the Constitution;7
- the Civil Code;8
- the Law on Copyright and Related Rights;9
- the Law on Information Society Services;10
- the Law on the Right to Obtain Information From State and Municipal Institutions and Agencies;11
- the Law on Legal Protection of Personal Data12 (in conjunction with the General Data Protection Regulation (GDPR));13
- the Law on the Protection of Minors Against the Detrimental Effect of Public Information;14 and
- the Code of Ethics of Lithuanian Journalists and Publishers.15
The Law on the Protection of Minors against the Detrimental Effect of Public Information is sometimes seen as a tool for censorship, and the amendment to the LPIP introducing penalties for spreading information that is considered war propaganda, encouragement to change the country’s constitutional order, or an encroachment on the country’s sovereignty, may also be considered as non-typical regulation.
To ensure the freedom of information, the LPIP prohibits exerting pressure on the producer or disseminator of public information, their participant or a journalist, to present information in the media in an incorrect and biased manner. The producer, disseminator of public information, their participants and journalists have the right to keep the confidentiality of the source of information and not to disclose it, except where a court orders disclosure.
In terms of intellectual property, journalists enjoy both economic and moral rights regarding their articles, publications, audiovisual works, and radio and television broadcasts as provided in the Law on Copyright and Related Rights. Pursuant to Article 9 of the Law, an author’s economic rights in a work created by him or her as an employee in the execution of his or her duties or fulfilment of work functions is transferred to the employer for a period of five years, unless otherwise provided for by an agreement.
The media is supervised by an independent regulatory authority – the Radio and Television Commission (RTC). The RTC is responsible for the licensing of radio and television broadcasting and rebroadcasting activities, notification procedures, approval of ownership transfers, monitoring and supervision of content control, and advertising requirements.
Other regulatory bodies that may exercise supervision over electronic communication service providers pursuant to their competence include (not exhaustively) the State Consumer Rights Protection Authority, the State Data Protection Inspectorate, the Competition Council and the Inspector of Journalist Ethics.
III FREE SPEECH AND MEDIA FREEDOM
i Protected forms of expression
Article 25 of the Constitution of the Republic of Lithuania provides that everyone shall have the right to have his or her own convictions and freely express them; no one must be hindered from seeking, receiving or imparting information and ideas.
To ensure the freedom of the media, Article 44 of the Constitution adds that the censorship of mass information is prohibited. The state, political parties, political and public organisations, and other institutions or persons are not allowed to monopolise the mass media.
The freedom to express beliefs, as well as to receive and spread information, may be limited only by law when:
- this is necessary to protect human health, honour or dignity, private life or morals;
- this is necessary to defend the constitutional order; and
- it concerns incitement to national, racial, religious or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation.
The LPIP specifies that publication in the media of information is prohibited when it:
- incites change to the constitutional order of the Republic of Lithuania through the use of force;
- instigates attempts against the sovereignty of the Republic of Lithuania, its territorial integrity and political independence;
- spreads war propaganda, instigates war or hatred, ridicule, humiliation, discrimination, violence or physical violent treatment of a group of people or a person belonging thereto on grounds of age, sex, sexual orientation, ethnic origin, race, nationality, citizenship, language, origin, social status, belief, convictions, views or religion;
- disseminates, promotes or advertises pornography or propagates or advertises sexual services and paraphilias;
- promotes or advertises addictions and narcotic or psychotropic substances;
- is slanderous and offensive to a person or degrades his or her honour and dignity; or
- violates the presumption of innocence and impedes the impartiality of judicial authorities.
The Law on the Protection of Minors against the Detrimental Effect of Public Information imposes additional restrictions on the dissemination of information that has a ‘detrimental effect on minors’. Such information includes, for instance, information that:
- encourages ‘aggressiveness and disrespect for life’ or ‘destruction or damage of property’;
- ‘shows close-ups of the body of a deceased, dying or cruelly mutilated person’;
- ‘promotes gambling, encourages or offers participation in gambling and other games that create an impression of an easy gain’;
- ‘demonstrates staged paranormal phenomena creating an impression that these phenomena are real’;
- ‘promotes bad eating and hygiene habits and lack of physical exercise’;
- ‘shows mass hypnosis sessions in which the influenced object is the audience of a mass medium’; or
- ‘expresses contempt for family values, encourages the concept of entry into a marriage and creation of a family other than stipulated in the Constitution of the Republic of Lithuania and the Civil Code of the Republic of Lithuania’.
The latter provisions serve as the main tool to prohibit positive information relating to LGBT+ people from being displayed in places accessible to minors.
Advertising and commercial communications are also subject to certain restrictions imposed by special laws (mainly in the field of customer protection).
In practice, the most common problems involve the questionable balance between the freedom of expression and the individual’s right to dignity and privacy. The case law regarding these matters is exceptionally broad, though not heterogeneous enough.
As the LPIP reads, every person has the right to collect information and publish it in the media. However, to avoid violation of a person’s rights and to protect his or her honour and dignity, in collecting and publishing information, it is prohibited to:
- film, photograph or make audio or video recordings without a person’s consent within the residential premises of the natural person, the private domain of the natural person and a fenced or otherwise clearly marked territory belonging thereto, regardless of whether that person is present in the aforementioned places;
- film, photograph or make audio or video recordings during non-public events without the consent of organisers who have the right to hold the events;
- film or photograph a person and use his or her images for advertising purposes in the media without the consent of that person;
- film or photograph a person with evident physical disabilities without that person’s consent or to film or photograph a person in a helpless state due to a health impairment;
- film or photograph a child or to make audio or video recordings of him or her without the consent of at least one of the parents, guardians or custodians and the child himself or herself. It shall be prohibited to use photographs, audio or video recordings of children in the information of an erotic, pornographic or violent nature; and
- film or photograph close-ups of a deceased or fatal casualty without the consent of the family members of the deceased or the fatal casualty or to make video recordings of him or her.
In producing and disseminating public information, a person’s right to protection of information of a private nature must be ensured. Information about a person’s private life may be published only with the consent of that person, except for the following cases, where:
- the publication of such information contributes to revealing violations of law or criminal acts;
- the information is presented in open court proceedings; or
- the information discloses the circumstances of the aforementioned person’s private life or his or her personal characteristics, which are of public importance.
In any case, the collecting and processing of personal data must meet the strict requirements of the Law on Legal Protection of Personal Data in conjunction with the GDPR.
The following acts form the basis for bringing an action for repairing the property and non-pecuniary damage incurred by the acts:
- making public announcements of facts of private life, however truthful they may be;
- making private correspondence public in violation of the procedure prescribed above;
- invasion of a person’s dwelling without his or her consent;
- keeping a person’s private life under observation or gathering information about him or her in violation of law; and
- other unlawful acts that infringe the right to privacy.
In addition, criminal liability may be imposed in the event of an unlawful violation of a person’s private life.
iii Freedom of access to government information
The Law on the Right to Obtain Information From State and Municipal Institutions and Agencies ensures the right of persons to obtain information from state and municipal institutions and agencies, defines the procedure for the implementation of the right and regulates actions of state and municipal institutions and agencies in relation to the provision of information to persons.
Generally, institutions (i.e., representative, executive and judiciary authorities, as well as the institution of the head of state, law enforcement institutions and agencies, institutions and agencies exercising audit and control (supervision), and other state and municipal institutions and agencies financed from the state or municipal budgets and state monetary funds) are obliged to provide applicants with information upon their request. Information is provided free of charge, except for the cases where either a state levy or fee defined by laws is charged for the provision of information. Laws and other legal acts may define distinct conditions of the provision and use of information for commercial or non-commercial purposes; however, they shall not be discriminatory in respect of applicants using information for the same purpose.
The institution may refuse to provide information if:
- the request of the applicant would necessitate creating documents or information files, which would entail disproportionately large amounts of work and time;
- the content of the request is not specific;
- the same information is requested by the same applicant for the second time;
- the requested information has already been published; in this case, the institution, within five working days of receipt of the request, shall inform the applicant of the source of publication; or
- the institution discontinues the collection and processing of certain information as a result of a change of its functions.
In the event of the refusal of an institution to provide information, the applicant shall be given a notice thereof specifying the reason for the refusal and the procedure for appealing against the decision.
In the most prominent recent case regarding access to government information, the Lithuanian Journalists’ Union and journalists from several media outlets sued the government after it refused to release the audio recording of a Cabinet meeting in which ministers discussed legislative amendments to give the media free access to public registry data. The plaintiffs asked the court to rule that the government’s refusal to provide the audio recording was unfounded and to order it to recover the deleted recording and release it to journalists. The first instance dismissed the journalists’ complaint; however, the plaintiffs have appealed the ruling. Following the row with the media, the government initiated amendments to make all Cabinet meetings public. These amendments came into force in January 2019.
iv Protection of sources
According to the LPIP, the producer, disseminator of public information, their participants and journalists have the right to maintain the confidentiality of the source of information and not to disclose it, unless a court decision orders disclosure of the source of information for vitally important or otherwise significant public reasons, or to ensure that the constitutional rights and freedoms of a person are protected and that justice is served.
The Code of Ethics of Lithuanian Journalists and Publishers adds that protecting the confidentiality of the source shall be considered not only the journalist’s right, but rather his or her obligation. If the source of information requests a journalist not to disclose his or her name, the journalist and public information organiser has no right to disclose it. In this case, the journalist and public information organiser assume legal and moral responsibility for the published information.
There is no recent case law regarding this matter.
v Private action against publication
In terms of defamation, a person has the right to demand refutation in judicial proceedings of the publicised data that abased his or her honour and dignity and that are erroneous, as well as redress of the property and non-pecuniary damage incurred by the public announcement of the said data. Case law to date has imposed a very low ceiling on compensation for non-pecuniary damage; the amounts awarded by courts rarely exceed €5,000.
The data that was made public is presumed to be erroneous unless the person who publicised them proves the opposite.
Where erroneous data is publicised by a mass medium (press, television, radio, etc.), the person about whom the data was publicised has the right to file a refutation and demand the given mass medium to publish the said refutation free of charge or make it public in some other way.
Infringing the right to privacy forms the basis for bringing an action for repairing the property and non-pecuniary damage incurred by the unlawful acts. If the breach concerns the violation of the GDPR rules, penalties including administrative fines may be imposed. Criminal liability may also be applied in certain cases.
Breach of confidentiality gives rise to a civil claim. A successful claimant is entitled to either an inquiry into damages and possibly injunctive relief, prohibiting further use or disclosure of the information. It is possible for a trade secret holder to apply to court for an injunction prohibiting the alleged or potential infringer from using or disclosing the trade secret or requiring them to cease any such activities on a provisional basis.
vi Government action against publication
There have been no recent state attempts to suppress publication or retaliate against journalists or publishers.
IV INTELLECTUAL PROPERTY
i Copyright and related rights
The protection of copyright and related rights is regulated by the Law of the Republic of Lithuania on Copyright and Related Rights, which is harmonised with international and European Union legal acts. Its last revision came into effect on 1 January 2019. The Law defines the authors’ economic and moral rights, establishes the objects and subjects of copyright and related rights, the terms of protection of copyright and related rights and the functions of collective administration association supervision by the Ministry of Culture. The liability for the breach of copyright and related rights is also established by the Criminal Code of the Republic of Lithuania and the Administrative Code of the Republic of Lithuania.
Under Lithuanian legislation, authors’ moral rights cannot be waived, transferred to other persons or inherited.
The Law on Copyright and Related Rights provides an exhaustive list of limitations on authors’ economic rights. The list includes:
- the reproduction of works for personal use;
- the reproduction of works for teaching or scientific research purposes;
- the use of works for information purposes (including the reproduction by the press, communication to the public or making available published articles on current economic, political or religious topics or of broadcast works of the same character, in cases where such use is not expressly reserved by the authors or other owners of copyright in such works, and as long as the source, including the author’s name, is indicated); and
- the use of works for the purpose of caricature or parody, etc.
As for the duration of copyright, authors’ economic rights run for the life of the author and for 70 years after his or her death, irrespective of the date when the work was lawfully made available to the public. The protection of the author’s moral rights is of unlimited duration.
During the past year, no significant developments in copyright law have taken place.
ii Personality rights
Lithuanian law provides for protection of personality rights of physical persons; namely, the right to a person’s name, the right to image, the right to inviolability and integrity of the body, the right to private life, and the right to protection of honour and dignity. As regards Lithuanian law, personality rights belong in the sphere of civil law; however (in contrast to some other jurisdictions), they are not considered as intellectual property rights.
iii Unfair business practices
There is no recent noteworthy case law regarding this matter. However, these practices usually consist of unlawful reproductions of work and failures to pay authors’ remuneration.
V COMPETITION AND CONSUMER RIGHTS
It is assumed that an open internet and net neutrality that guarantee fair competition and stimulate innovation are essential principles. To ensure the end users’ right to open internet access services, the Communications Regulatory Authority of the Republic of Lithuania has performed numerous actions during the past year, including an assessment of current practices. The completed assessment indicates no major concerns or restrictions for end users’ rights to distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end user’s or provider’s location or the location, origin or destination of the information, content, application or service, via their internet access service. Most internet service providers (ISPs) provided the required transparency information in their contracts or informed their customers about the changes to the terms of provision of internet access. Almost all ISPs ensured the end users’ right to apply via email, post or directly to the office. ISPs have an obligation established in the Law on Electronic Communications of the Republic of Lithuania to respond to complaints within 14 days of the complaint being received.
In the scope of competition law, controlling the mergers or acquisitions in the media and telecommunications sector is a prerogative of the Competition Council of the Republic of Lithuania.
VI DIGITAL CONTENT
As a general rule, it is prohibited to use any content without the owner’s permission. The owner has exclusive rights to authorise or to prohibit any mode of the exploitation of his or her work, including broadcasting and retransmission of a work, as well as communication to the public of a work in any other way, including making a work available (hosting, aggregating, linking, etc.) to the public via computer networks (on the internet).
Owners of copyright, related rights and sui generis rights, with the aim of defending their rights, are entitled to apply to court to demand:
- recognition of rights;
- an injunction with the aim of prohibiting the continuation of unlawful acts;
- prevention from carrying out acts due to which rights may be infringed or damage may be caused;
- redress of the infringed moral rights (injunction to make appropriate amendments, to announce the infringement in the press, or any other way);
- exaction of unpaid remuneration for unlawful use of a work, objects of related rights or sui generis rights;
- compensation for property damage, including lost income and other expenses, and, in certain cases, non-pecuniary damage;
- payment of compensation; and
- application of other measures for defence of the rights, provided for by the Law on Copyright and Related Rights and other laws.
There is no law that directly deals with ISPs’ or social media platforms’ civil liability in Lithuania. Certain aspects of it are regulated by the Law on Electronic Communication; however, this Law relates exclusively to the technological side of the intermediation process and vaguely addresses the relationships between the ISPs and other parties; for instance, the owners of the content transmitted through the networks. Certain exceptions regarding ISPs’ liability are set out in the Law on Information Society Services. The case law concerning this matter also lacks clarity; the liability of ISPs is applied based on different criteria, such as activity of an intermediator, the context of content and effectiveness of measures taken.
In terms of linking and aggregating, there has been no case law as yet; therefore, the law of the Court of Justice of the European Union should be applied.
The most prominent case in terms of digital content refers to Linkomanija.net, the most visited torrent (peer-to-peer) site in Lithuania. For more than 10 years, the site has been a major force in the sharing of unlicensed content. The Lithuanian Copyright Protection Association began taking legal measures against Linkomanija in 2016, when it filed a lawsuit at the Regional Court of Vilnius demanding that several local ISPs prevent their subscribers from accessing the site. In 2017, the Court issued an order that required the country’s largest internet providers, including Telia, Bitė, LRTC, Cgates, Init and Balticum TV, to start blocking access to the popular torrent tracker. Following an appeal, the Supreme Court took the final decision that ISPs must begin blocking Linkomanija with immediate effect.
VII CONTRACTUAL DISPUTES
Contractual disputes in the media and entertainment sector are infrequent. The disputes typically involve copyright infringements (licensing and royalty disputes) and contractual disputes with artists and performers.
Disputes are usually settled through bilateral negotiation or judicial institutions (the Supreme Court of Lithuania, the Court of Appeal of Lithuania, regional courts and district courts are the courts of general jurisdiction dealing with civil and criminal cases). Although alternative dispute resolution methods, such as mediation and arbitration, continue to grow in popularity, they are still relatively rare.
VIII YEAR IN REVIEW
The past year has not been productive in terms of legal regulatory, judicial practice or general developments in the media and entertainment sector in Lithuania. The most important innovation concerns enabling RTC to block sites administratively.
In the coming year, the main legal issues will regard the implementation of the following European Union directives:
- Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC; and
- Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 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, and amending Council Directive 93/83/EEC.
1 Stasys Drazdauskas is a counsel and Paulius Mockevičius is a legal assistant at Sorainen.
5 Lithuanian version, as amended, available at www.e-tar.lt/portal/lt/legalAct/TAR.065AB8483E1E/UJIFyNlPSJ. English version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/2865241206f511e687e0fbad81d55a7c?jfwid=1clcwosx33.
6 Lithuanian version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.232036/fcaHrJiztL. English version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/7092f502c43811e5a141fecd4d43d786?jfwid=-fxdp786k.
7 Lithuanian version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.1890/asr. English version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.275302?jfwid=-wd7z8ivg5.
8 Lithuanian version, as amended, available at www.e-tar.lt/portal/lt/legalAct/TAR.8A39C83848CB/htnZUlRbvd. English version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.404614?jfwid=pffih3t2r.
9 Lithuanian version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.81676/GJrgHCUrve. English version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/5a34cbb04fe611e5a4ad9dd3e7d17706?jfwid=9tq147ogj.
10 Lithuanian version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.277491/FGVmSopPwK.
11 Lithuanian version, as amended, available at www.e-tar.lt/portal/lt/legalAct/TAR.FA13E28615F6/QwCYWKrpeY. English version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.440732?jfwid=rivwzvpvg.
12 Lithuanian version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/bc0837f27f9511e89188e16a6495e98c. English version, as amended (substantially different from the latest version), available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.435305?jfwid=nz8qn7vvf.
14 Lithuanian version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.183129/asr. English version, as amended, available at https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.410974?jfwid=pffih3unx.
15 Lithuanian version, as adopted on 29 February 2016, available at http://www.zeit.lt/lt/teisine-informacija/visuomenes-informavimo-etikos-kodeksas/41.