The Media and Entertainment Law Review: Estonia

Overview

Estonia is a country that favours a 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 (EU) media policy and in 2021 Estonia ranked 15th in the world in the Press Freedom Index.2

Estonia has a growing film industry: Christopher Nolan filmed Tenet on the streets of Tallinn in the summer of 2019, bringing a turnover of almost €16 million to Estonia and involving almost 700 small enterprises,3 and there are ongoing discussions between project leaders and the state about building the region's largest film industry centre in Tallinn by 2022.

According to a Tallinn city press release dated 25 November 2019, the Tallinn Film Wonderland project will have three phases. The first phase, to be completed by 2022, will include building three studios and auxiliary spaces on Paljassaare peninsula in north Tallinn. The second phase will comprise an area that is open to the public, as well as spaces for auxiliary services for film production and offices. In the longer term, a new contemporary urban space, along with residential and commercial buildings, will be created.4 Although the project was excluded from the list of cultural objects of national importance in May 2021, the cultural affairs committee of the Estonian parliament is seeking to add the film campus to the list in autumn 2021, which would allow the film studios to open in a year or two.5

Estonia also values its history and cultural heritage. The Ministry of Culture has drawn up an action plan for the years 2020 to 2023 to digitise Estonia's cultural heritage. This plan is mainly focused on the era from 1900 to 1940. Documents, prints, photos, films, artworks and objects will be digitised, with an estimated 33 per cent of Estonian cultural heritage being digitalised in total.6

In recent years Estonian artists, and especially music artists, have been struggling for viewers and listeners because of the consolidation of market position by major digital platforms such as Spotify and YouTube. Although there is no publicly available data on how much Estonian artists are earning from their content from these platforms, some experts estimate that earnings are very low. Currently, artists have a choice either to upload their content to these platforms or risk being unable to reach any listeners.7 However, despite the current somewhat unfair situation, there are signs that the situation is improving. Estonian entrepreneurs have started a project to ensure artists fair and transparent remuneration for their creative work through a new music streaming platform, Fairmus. Several well-known Estonian artists have already indicated their support for the initiative with the objective of protecting the community of Estonian artists.8

Legal and regulatory framework

Broadcasting and video on-demand is regulated by the Media Services Act (MSA).9

The MSA provides the procedure and principles for the provision of audiovisual media services and radio services, and for the issuing of activity licences. The MSA also sets out the principles for the protection of persons who have provided information for journalistic purposes (protection of sources).

The Estonian public service broadcaster, ERR, is regulated by the Estonian Public Broadcasting Act (EPBA).10 The EPBA sets out the legal status, objectives, functions, financing and organisation of management and activities of the ERR. The EPBA states that public broadcasting must be independent in the production and transmission of 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 EPBA, monitors the conformity of the operation of the ERR with professional ethics and journalistic best practice.

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 independence have at times received criticism as it operates under the broadcaster's authority rather than as an independent entity outside the organisation, which could better claim to be an unbiased arbitrator for both sides. The adviser could, therefore, be accused of looking out for the interests of the ERR. Draft legislation to make the ethics adviser's position obsolete, with a suggestion of creating a new third-party adviser, 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:

  1. the General Part of the Economic Activities Code Act, which regulates general conditions and procedures for exercising economic activities;
  2. the Advertising Act, which sets out the general rules of advertising (specific overriding terms are found under the MSA);
  3. the Child Protection Act;
  4. the Consumer Protection Act; and
  5. 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.11 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 apply regarding public servants employed by the national government and local authorities, to protect state secrets.

    As established in recent case law by the Supreme Court of Estonia, the right to disclose all testimony given during court hearings generally outweighs the potential for witness information disclosed in this way to affect those witnesses who have yet to be heard. The Supreme Court justified its position by stating that the effect of published information (including disclosure of statements given during pretrial proceedings) can generally be balanced by the procedure of cross-examination.12 As a result, journalists have been able to provide more substantive media coverage on various ongoing cases.

    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 granted this protection to its fullest extent as he or she must endure a greater degree of public scrutiny because of the position he or she holds in society.13

    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 former 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).14 Of course, for Ieva Ilves this was not a possibility, since the president's spouse is also regarded as 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, some of whom had been criminally convicted.15 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 in publicising 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 restricted forms of expression are advertising, commercial communications and hate speech, the last of which is prohibited.

    Commercial communications are a form of expression restricted by the MSA, 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 its 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 concerns commercial communications regarding 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 a 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 above-mentioned Acts also regulate television (TV) and radio advertising and teleshopping, information regarding sponsorship and product placement, which, with certain exceptions, is prohibited.

    ii Newsgathering

    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.16

    Journalists cannot enter anyone's property without their permission, or conduct covert surveillance or 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 Act17 (PDPA) and the General Data Protection Regulation,18 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 him or her to understand the fact of the recording and is given the opportunity to prevent the recording if he or she so wishes. The notification obligation does not apply in the case of public events, the 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 a data subject; in particular, 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 'journalistic investigation' can be used as a last resort when all other recognised methods have been exhausted yet public interest in the matter remains high.

    At the end of November 2020, in a case of significant public interest involving a journalistic investigation, the Prosecutor's Office decided not to initiate criminal proceedings against journalists from newspaper Õhtuleht after they collected data about the former Minister of Education and Research Mailis Reps' personal use of her official state car. It was concluded that the journalists had not conducted any unauthorised private surveillance activities in the course of their work as their purpose was to collect data on the use of state-owned property and not on a specific person, and this does not meet the law's definition of unauthorised surveillance. As a result of this journalistic investigation, an article was published alleging that the car has been used for unofficial purposes, which subsequently caused the resignation of the minister.19

    There is no recent case law regarding journalistic investigations. In the most recent case where there was mention of such an investigation being conducted, and which caused wider social debate, a man was sentenced to imprisonment for a year and three months in a 2012 judgment of Harju County Court 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, conducting an investigation.20

    iii Freedom of access to government information

    The freedom to access government information is regulated by the Public Information Act.21 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 a holder (e.g., if the person requesting the information has not specified clearly enough which information the request is for).

    The head of an agency that 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 ruling from the Tallinn Administrative Court where a journalist requested documentation from the Estonian Social Insurance Board (SSA) about the discontinuance of special pension payments to a person who had been accused of committing treason.22 The journalistic interest behind this request was to find out whether the current legislation is sufficient to enable the discontinuance of the distribution of the state's budget to traitorous persons.

    The SIB 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 doing so. Nevertheless, making public the pension information of a specific data subject would not be necessary for that type of analysis. In addition, the SIB did not find an exception for the request under the PDPA to grant the journalist access to the personal data of the data subject concerned.

    The journalist filed a complaint with the Estonian Data Protection Agency and subsequently a lawsuit against both government agencies with the Tallinn Administrative Court. The complaint claimed that if the SIB's decision to deny the requested information was based on insufficient reasoning on the journalist's part, the SIB should have provided guidelines about the grounds on which such information could be released. The Administrative Court ruled that the holder of such information is not responsible for providing this type of guidance.

    In another notable judgment, the Supreme Court held that after the conclusion of criminal proceedings, access to the criminal case file can be requested even if the court session was held in camera (i.e., without public access). However, the Supreme Court emphasised that in these circumstances journalists have no grounds for challenging the session itself being held in camera, as refusing such a challenge would not limit the journalists' eventual access to the criminal file.23 In this regard, the Code of Criminal Procedure24 allows courts to impose restrictions on press coverage during the hearings and courts have actively used this right.

    The Supreme Court has further clarified in a recent judgment on the same subject that the collection of information is an essential part of journalistic activity and particularly compelling reasons are necessary to justify restricting access to information to which the public is entitled. Also in relation to restricting access, the Supreme Court held that public authorities, including the courts, have no basis for interfering with the right of journalists to determine which topics may be of public interest. Journalists have a wide margin of discretion in determining the topics of public interest. In this regard, the journalistic interest in inspecting court documents does not have to be linked to the specific circumstances of a particular case – it is sufficient that the general subject of the corresponding investigation relates to a specific case and that the necessary information can indeed be obtained from the documents.25

    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 those authorities, the legislation that is the basis for their operation, and their competence and legislative activities. The Archives Act governs the activities of the National Archives of Estonia 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 information that would enable identification of the source of information. Furthermore, consent of the source is required to disclose any information that would enable identification of the aforementioned.

    This requirement is dismissed if a source has knowingly provided false information, in which case the journalist and source are seen as having a contractual relationship, and if one of the parties breaches his or her duties, the other is no longer bound by his or her duties either.

    The Code of Criminal Procedure26 provides certain grounds for a journalist to be obligated to disclose information about his or her sources.

    Estonia does not have any notable case law on the matter.

    v Private action against publication

    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 Act27 states that, in the case of a 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.28 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 in which the person would have been in had the damage not occurred. For non-patrimonial damages, the bases regarding the amount of damages that can be awarded are the gravity and scope of a 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.29

    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.30

    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 of a publication 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 was also the fact that one of the plaintiffs was a minor and neither 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 an 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 had not been fairly taken into account. The Court of Appeal and the Supreme Court did not change the ruling and found the damages fair and reasonable.

    In a precedent-setting judgment in 2019, the Tallinn Circuit Court, for the first time, held two journalists personally liable for what was published in a journal. The journalists published a false allegation about the victim using deliberately chosen derogatory language, in particular to increase the sales of the journal. Ultimately, the negligence of the journalists in verifying the facts proved decisive in the success of the claim for compensation by the victim. The journalists had failed to comply with their duty to verify the tip-off, which they received from an anonymous source. Both the media company and the authors of the article were considered to be publishers, notwithstanding the journalists' argument that they were merely employees of the media company performing their work duties with no independent power to publish articles and news. The journalists did not exercise their right to appeal the decision to the Supreme Court.31

    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,32 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 the fixation of the work. Content of copyright is constituted by moral and economic rights. Authors' moral rights are inseparable from an author's person and, therefore, are non-transferable. 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:

  6. 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;
  7. works of folklore, legislation and administrative documents (acts, decrees, regulations, statutes, instructions, directives, etc.) and official translations thereof;
  8. official symbols of the state and insignia of organisations (flags, coats of arms, orders, medals, badges, etc.);
  9. news of the day;
  10. facts and data; and
  11. ideas and principles that underlie any element of a computer program.

    The term of copyright is the life of the author plus the 70 years after his or her death, irrespective of the date the work is lawfully made publicly available.

    Jill Greenberg filed an action against Estonian political party Keskerakond and non-profit organisation Vaba Ajakirjandus, publisher of the party's newspaper Kesknädal, 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 the photo series End Times, containing 32 photo portraits depicting toddlers crying. 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 on the political party's Facebook page. Therefore, Jill Greenberg's moral and economic rights had been breached by both the newspaper and the political party.

    Keskerakond argued that it was 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 had not substantiated the amount of her claim: obtaining a photo similar to the plaintiff's photo online would not cost more than €20, therefore the licence fee for using the plaintiff's photo would not have been as high as the plaintiff claimed; in addition, the defendant argued that Estonian case law does not recognise indemnification for non-patrimonial damage in relation to breaches of this kind. The Supreme Court found to the contrary: the defendants' argument that a similar photo could have been obtained for €20 was 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 such damage can in fact be indemnified, although in terms of an intellectual property breach, non-patrimonial indemnification requires a culpable act by the breaching party.

    While a breach alone is a sufficient basis for indemnification, indemnification for non-patrimonial damage as a result of an intellectual property breach must be based on a culpable act. The Supreme Court therefore sent the case back to the lower court for review, but no judgment was necessary as a settlement was reached.33

    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.34 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 mean, however, that an individual possesses no control over his or her name, identity, etc. Indeed, protection regarding personality rights is regulated under tort law. Unjustified use of a person's name or image, or a breach of the inviolability of his or her private life, are torts under Estonian regulation. This means that commercialising someone's identity without his or her authorisation can bring about an action for compensation for damage and a claim to stop the behaviour causing the breach of personality rights.

    The other tort considered as a 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 false claim that a certain famous person endorses the product in question. In this situation, the famous person has the right to demand the refutation or correction of the false information.35

    There have been two interesting cases where personality rights were breached in the realm of film production.

    Magnus was a film made about a young man 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. Because of the breach of the prohibition, a new proceeding was commenced, with potential for a 30-year-long screening prohibition to be imposed on the film.36 A circuit court ruling came into force on 27 April 2010 prohibiting any screening or public release of the film globally until 2025.37

    The public release of the film was prohibited because the event and persons depicted in the film were too easily traceable to the real-life persons, in particular the role of the protagonist's father (which 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 harm, the release of the film was prohibited.38

    In another case, however, the courts ruled in favour of a film's director and producer.39 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 lives of the escapees were too ambiguous and unspecific to be traced back to the plaintiffs, arguing that many Estonians in that era led similar lives and had similar experiences. Moreover, the film was mainly composed of fictitious events and details, therefore the plaintiffs were not identifiable and the average audience would be unable to tell which events could have been based on real-life events and which events were fictitious.40

    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 owns 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 owned 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 held that it was 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 was not protected by copyright because of its lack of originality. They held that it was an objective collection of data, lacking any element of decision-making or one person's personal style. They further argued that the database did not fall within the scope of sui generis protection because compiling the data did not need any significant investment from the plaintiff. The Supreme Court ruled that the website was to be deemed an original work and therefore protected by copyright and, in addition, the website constituted a database with sui generis protection. The Court found that the determining factor for ruling that the database was an original work was 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 the staff put into servicing the website were to be considered a significant investment.41

    Estonian Authors' Association v. Viasat

    The Estonian Authors' Association, the 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 the 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., transmission) and that 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 the circuit court for review. Ultimately, the courts ruled in favour of Viasat, arguing that the input of TV programme signals is under the control of broadcasters and, therefore, it is broadcasters that communicate the channels to the end-users. According to the Estonian Copyright Act, only persons who communicate a work to the public are obliged to remunerate the work's author. 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.42

    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, alumni and 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 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 was obliged to pay the author's remuneration of €81.55.43

    V Competition and consumer rights

    During the past few years, 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 EU law44 is reached, in which 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' mergers and acquisitions (M&A) transactions are diverse. For instance:

  12. an aspiration to enter the media market, as was the case 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;45
  13. the termination of business activity, as was the case for Osaühing Põlva Koit, which sold its intellectual property to a huge media company, AS Postimees Grupp;46
  14. when the telecommunications, radio and printed media company AS Eesti Meedia acquired the advertisement company Baltic Media Services OÜ, it justified the transaction with a simplification of workflow processes since the acquired company had already been providing radio advertisement services to the buyer;47
  15. 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;48
  16. Megameedia Grupp OÜ acquired a part of the Best Propaganda OÜ business entity (together with its assets and contracts) whose field of activity is related to advertisements displayed on public transport digital screens;49
  17. the desire to expand businesses within, or into, whole new markets in the media and marketing communications sectors;
  18. the intention to contribute more to local film industry development; and
  19. to instigate sector-based financial investments.

In addition to successful mergers, the ECA has also issued a contrary decision in this field, to prohibit the merger of two film theatre businesses. In February 2021, the largest cinema chain in Estonia, MM Grupp OÜ, withdrew its merger notification to add three additional cinemas to its chain, as it was apparent from the ECA's decision that the merger would have been prohibited if the notifying party had not withdrawn it. In this case, the ECA concluded that the traditional market definitions would have led to very high combined market shares in two local cinema exhibition services markets, causing competition law issues. According to the ECA's calculations based on box office revenues, the combined market shares would have been over 70 per cent and 90 per cent respectively in the two local markets. The ECA's concerns about the horizontally overlapping markets were amplified by the notifying party's high market share in the theatrical film distribution services market in Estonia. Consequently, the merger control proceedings did not result in a clearance decision, despite the notifying party's suggested commitments to ease the market situation and ensure compliance with competition law. In addition to considering the topic of the merger, the ECA concluded that, from a competition law perspective, video streaming platforms are not deemed to compete with cinemas for viewers.50

The increasing trend for M&A transactions in the media and telecommunications sector shows the interest of both Estonian and foreign media companies in investing in this area and, therefore, in providing better quality media, entertainment and advertisement content to Estonian viewers. The Estonian TV and motion picture industry is developing rapidly, with more quality and high-budget pieces of entertainment emerging every year. Hence, 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 notable 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.51 Once available, the 5G network will without doubt influence how Estonians consume media and entertainment, which, in turn, will precipitate developments in these sectors. Auction of the first 5G frequency permits has been significantly delayed because of disputes and the government's decision to change the auction rules.

At the time of writing, the Electronic Communications Amendment Act52 had been withdrawn from the parliamentary adoption procedure, having reached its third and final reading before the Estonian parliament. The reason for the postponement was procedural, as adoption of the Act in its existing form would have led to its unconstitutional retroactive entry into force between its second and third reading. The date of entry into force was therefore subject to review. According to the Minister of Entrepreneurship and Information Technology, technical changes will be introduced and the draft act will be resubmitted; however, it is currently unclear when exactly this will be carried out.53

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.11 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 apply regarding public servants employed by the national government and local authorities, to protect state secrets.

As established in recent case law by the Supreme Court of Estonia, the right to disclose all testimony given during court hearings generally outweighs the potential for witness information disclosed in this way to affect those witnesses who have yet to be heard. The Supreme Court justified its position by stating that the effect of published information (including disclosure of statements given during pretrial proceedings) can generally be balanced by the procedure of cross-examination.12 As a result, journalists have been able to provide more substantive media coverage on various ongoing cases.

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 granted this protection to its fullest extent as he or she must endure a greater degree of public scrutiny because of the position he or she holds in society.13

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 former 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).14 Of course, for Ieva Ilves this was not a possibility, since the president's spouse is also regarded as 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, some of whom had been criminally convicted.15 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 in publicising 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 restricted forms of expression are advertising, commercial communications and hate speech, the last of which is prohibited.

Commercial communications are a form of expression restricted by the MSA, 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 its 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 concerns commercial communications regarding 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 a 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 above-mentioned Acts also regulate television (TV) and radio advertising and teleshopping, information regarding sponsorship and product placement, which, with certain exceptions, is prohibited.

ii Newsgathering

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.16

Journalists cannot enter anyone's property without their permission, or conduct covert surveillance or 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 Act17 (PDPA) and the General Data Protection Regulation,18 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 him or her to understand the fact of the recording and is given the opportunity to prevent the recording if he or she so wishes. The notification obligation does not apply in the case of public events, the 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 a data subject; in particular, 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 'journalistic investigation' can be used as a last resort when all other recognised methods have been exhausted yet public interest in the matter remains high.

At the end of November 2020, in a case of significant public interest involving a journalistic investigation, the Prosecutor's Office decided not to initiate criminal proceedings against journalists from newspaper Õhtuleht after they collected data about the former Minister of Education and Research Mailis Reps' personal use of her official state car. It was concluded that the journalists had not conducted any unauthorised private surveillance activities in the course of their work as their purpose was to collect data on the use of state-owned property and not on a specific person, and this does not meet the law's definition of unauthorised surveillance. As a result of this journalistic investigation, an article was published alleging that the car has been used for unofficial purposes, which subsequently caused the resignation of the minister.19

There is no recent case law regarding journalistic investigations. In the most recent case where there was mention of such an investigation being conducted, and which caused wider social debate, a man was sentenced to imprisonment for a year and three months in a 2012 judgment of Harju County Court 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, conducting an investigation.20

iii Freedom of access to government information

The freedom to access government information is regulated by the Public Information Act.21 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 a holder (e.g., if the person requesting the information has not specified clearly enough which information the request is for).

The head of an agency that 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 ruling from the Tallinn Administrative Court where a journalist requested documentation from the Estonian Social Insurance Board (SSA) about the discontinuance of special pension payments to a person who had been accused of committing treason.22 The journalistic interest behind this request was to find out whether the current legislation is sufficient to enable the discontinuance of the distribution of the state's budget to traitorous persons.

The SIB 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 doing so. Nevertheless, making public the pension information of a specific data subject would not be necessary for that type of analysis. In addition, the SIB did not find an exception for the request under the PDPA to grant the journalist access to the personal data of the data subject concerned.

The journalist filed a complaint with the Estonian Data Protection Agency and subsequently a lawsuit against both government agencies with the Tallinn Administrative Court. The complaint claimed that if the SIB's decision to deny the requested information was based on insufficient reasoning on the journalist's part, the SIB should have provided guidelines about the grounds on which such information could be released. The Administrative Court ruled that the holder of such information is not responsible for providing this type of guidance.

In another notable judgment, the Supreme Court held that after the conclusion of criminal proceedings, access to the criminal case file can be requested even if the court session was held in camera (i.e., without public access). However, the Supreme Court emphasised that in these circumstances journalists have no grounds for challenging the session itself being held in camera, as refusing such a challenge would not limit the journalists' eventual access to the criminal file.23 In this regard, the Code of Criminal Procedure24 allows courts to impose restrictions on press coverage during the hearings and courts have actively used this right.

The Supreme Court has further clarified in a recent judgment on the same subject that the collection of information is an essential part of journalistic activity and particularly compelling reasons are necessary to justify restricting access to information to which the public is entitled. Also in relation to restricting access, the Supreme Court held that public authorities, including the courts, have no basis for interfering with the right of journalists to determine which topics may be of public interest. Journalists have a wide margin of discretion in determining the topics of public interest. In this regard, the journalistic interest in inspecting court documents does not have to be linked to the specific circumstances of a particular case – it is sufficient that the general subject of the corresponding investigation relates to a specific case and that the necessary information can indeed be obtained from the documents.25

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 those authorities, the legislation that is the basis for their operation, and their competence and legislative activities. The Archives Act governs the activities of the National Archives of Estonia 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 information that would enable identification of the source of information. Furthermore, consent of the source is required to disclose any information that would enable identification of the aforementioned.

This requirement is dismissed if a source has knowingly provided false information, in which case the journalist and source are seen as having a contractual relationship, and if one of the parties breaches his or her duties, the other is no longer bound by his or her duties either.

The Code of Criminal Procedure26 provides certain grounds for a journalist to be obligated to disclose information about his or her sources.

Estonia does not have any notable case law on the matter.

v Private action against publication

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 Act27 states that, in the case of a 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.28 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 in which the person would have been in had the damage not occurred. For non-patrimonial damages, the bases regarding the amount of damages that can be awarded are the gravity and scope of a 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.29

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.30

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 of a publication 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 was also the fact that one of the plaintiffs was a minor and neither 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 an 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 had not been fairly taken into account. The Court of Appeal and the Supreme Court did not change the ruling and found the damages fair and reasonable.

In a precedent-setting judgment in 2019, the Tallinn Circuit Court, for the first time, held two journalists personally liable for what was published in a journal. The journalists published a false allegation about the victim using deliberately chosen derogatory language, in particular to increase the sales of the journal. Ultimately, the negligence of the journalists in verifying the facts proved decisive in the success of the claim for compensation by the victim. The journalists had failed to comply with their duty to verify the tip-off, which they received from an anonymous source. Both the media company and the authors of the article were considered to be publishers, notwithstanding the journalists' argument that they were merely employees of the media company performing their work duties with no independent power to publish articles and news. The journalists did not exercise their right to appeal the decision to the Supreme Court.31

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.

Intellectual property

i Copyright and related rights

According to the Estonian Copyright Act,32 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 the fixation of the work. Content of copyright is constituted by moral and economic rights. Authors' moral rights are inseparable from an author's person and, therefore, are non-transferable. 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:

Competition and consumer rights

During the past few years, 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 EU law44 is reached, in which 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' mergers and acquisitions (M&A) transactions are diverse. For instance:

Digital content

The requirements for information society service providers, their liability and the organisation of their supervision are set out in the Information Society Services Act.54 In practice, this Act concerns app 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 these services. Pursuant to the Act, a service provider is not obliged to monitor information upon mere transmission, provision of access or 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.55 The plaintiff in the case filed a lawsuit against an internet forum for disclosing false data about a person who allegedly posted insulting commentaries about the plaintiff on that forum. This resulted in a court case against that person being dismissed, therefore causing not only non-patrimonial damage to the plaintiff as a result of the commentaries, but also patrimonial damage (i.e., the procedural costs of the 'false' defendant, which 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 it could in theory provide a basis for similar claims.

Another case concerning the Act took place at the Tallinn Circuit Court,56 where the Court sought a preliminary ruling from the European Court of Human Rights57 for the definition of information society service in the context of intellectual property law. The most famous court case in connection with the liability of a website – in particular, a news portal – is the Delfi case, which 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.58

No other notable case law developments have taken place recently. However, it is to be expected that the upcoming implementation of EU law59 will result in new case law and regulatory provisions being initiated.

Contractual disputes

In the Estonian jurisdiction, the majority of disputes related to the media and entertainment sector are non-contractual rather than contractual. These disputes usually relate to the unlawful reproduction of authors' work, and trademark issues. Breaches of advertising law are another notable segment in case law regarding the media and entertainment sector; however, these breaches are processed in administrative proceedings.

Year in review

In the past 12 months, as in the previous corresponding period, most of the public debate has been caused by the restrictions imposed by the government to limit the spread of covid-19.

Health and safety measures meant that cinemas and other public places of entertainment were forced to close from 3 March to 24 May 2021. Since then, covid-19 restrictions have gradually been eased. On 23 June, the 50 per cent room-occupancy restriction was also abolished and as a result the media and entertainment industry has gradually been reviving.

Most public gatherings such as concerts and festivals, which in 2020 were cancelled or rescheduled, have taken place in 2021.

After taking a major hit in 2020, the internet and TV advertising sector has been showing signs of recovery, although this is not the case for traditional print media, mainly because of declining sales volumes.60 This in turn has resulted in higher delivery prices and caused conflict between the state-owned postal service and the Estonian Association of Media Enterprises (EML), which acts as a representative of private media companies. A delivery price increase of 8.7 per cent has been agreed for 2021 and any increase potentially puts print media under the threat of bankruptcy. Notably, the Postal Act requires a minimum of one periodical delivery per day, six days a week, with the objective of keeping people who are unable to obtain news online informed.61

According to the statistics for 2020, TV remains the largest component of the local advertising market in Estonia, with a 27 per cent market share, although it is only slightly ahead of the local online market (26.3 per cent market share, worth €21.3 million). Outdoor billboard advertising had a 14.7 per cent market share (€12 million), while radio had an 11.4 per cent market share (€9.22 million in advertising revenue). Magazine advertising had a 4.3 per cent market share (€3.5 million) and direct mail advertising stood at 9.4 per cent (€7.67 million in value). The rest of the local advertising market is divided among multiple small sectors with no significant market share.62

Over the past years, global tech giants such as Google and Facebook have acquired an ever greater part of the general Estonian advertising market, while at the same time local companies' turnover has stagnated. This has caused a situation where the advertising revenue flows out of Estonia, as companies without a local permanent establishment do not have to pay locally applicable taxes.63

A dispute has arisen between the Estonian Association of Journalists (EAJ) and the Minister of Culture as, in June 2021, the latter rejected the EAJ's request to be recognised as an artistic association, which would entitle its members to certain support pursuant to the Creative Persons and Artistic Associations Act, such as that provided when, for example, an author or performer loses his or her means of income. The Minister justified the decision on the grounds that art is a direct expression of an author's personality whereas journalism does not fall into this category. However, the EAJ disagrees with this argument and maintains that journalistic texts are artistic. Negotiations between the two parties are still ongoing.64

The Estonian parliament has passed a draft act (the Amendment Act) introducing changes to the Copyright Act by amending the blank-media levy system and extending the functions of the Estonian Patent Office (EPO). The Amendment Act entered into force as of 4 January 2021.65 With these amendments, the Estonian parliament finally reformed the country's outdated legislation concerning the blank-media levy system. The problem with the former legislation, which dated from 2006, was that manufacturers and importers of media such as DVDs and VHS tapes were charged a blank-media fee66 and the fees were to be collected and distributed to different authors' rights societies to reimburse copyright owners (for films, music videos, songs, etc.) for their creations being recorded for personal use by buyers of blank media. However, consumers have moved on to more modern media and platforms (apps such as Spotify) and no longer buy DVDs or VHS tapes, but the creators' blank-media fee system had remained unchanged.

Because of the limitations of the outdated legislation, Estonian artists were forced to initiate a claim against the government for a loss of profit of €38 million for the years from 2014 to 2018. On 30 June 2020, the Tallinn Circuit Court rendered a judgment ordering the state to pay compensation of €3.5 million to the artist associations. According to the Circuit Court, Estonian authors are entitled to compensation of €0.45 per capita. Subsequently, the artist associations filed an appeal with the Supreme Court, because according to the applicable laws the compensation should actually have been around €46 million. In recent years, authors' fees around the world have been on the rise and, in 2015, the average remuneration in EU Member States for copying works for personal use was €1.42 per capita.67 On 8 December 2020, the original judgment finally entered into force as the Supreme Court decided not to accept the appeal in cassation, rejecting the application for higher compensation.68

The Amendment act also resolved the issue of ensuring fair compensation for the producers of the first release of a film, which the regulations did not guarantee previously. Furthermore, the Amendment Act extended the functions of the EPO by transferring to it some of the functions of the Estonian Ministry of Justice in the field of copyright and related rights. The newly adopted legislation is in line with the Estonian Ministry of Justice programme for 2020 to 2023, which envisages the transformation of the EPO into a modern centre with competence for intellectual property rights and therefore expanding the authority's remit in the field of copyright was necessary.

Additionally, as noted above, the Amendment Act established an updated blank-media fee system to allow right holders to receive fair compensation. This includes remuneration for people copying authors' works and other rights objects for personal use. Adopting the new legislation also ensures Estonia's compliance with the EU Information Society Directive.69

A dispute has arisen between Estonian film directors and the state because the government plans to reduce funding for Estonian films by 42 per cent in the state budget for 2022, and the film directors are of the opinion that the domestic film culture will inevitably disappear as a result.70

In addition to the entertainment sector, a dispute has risen between one public and several private broadcasters. The EML submitted a complaint to the EC against the ERR on 7 September 2020. According to the EML's statement, the funding of ERR's online news via the state budget harms fair competition. ERR is strongly expanding its online media with the support of state financing, but the private sector will never be able to compete with the state at this financial level. As at 2021, the EC has yet to make an announcement regarding the complaint.71

On 30 October 2020, the EC sent Estonia a letter of formal notice for having failed to transpose into national law the criminalisation of specific forms of hate speech, namely the public condoning, denying or gross trivialisation of international crimes and the Holocaust when this conduct aims to incite violence or hatred.72 In this regard, there has been debate between political parties as coalition partners have been unable to agree on whether to change the current legislation so that national laws would allow public incitement to violence to be punished by actual imprisonment. At present, a response from the EC is awaited as to whether it accepts the current political circumstances in Estonia and whether it will decide to end the infringement procedure. In particular, the EC is deliberating whether the legislation on hate speech in Estonia is considered to be sufficient to comply with the standards of EU legislation.73

Outlook

This year, two Estonian legislative amendments are nearing completion: the draft on amendments to the MSA and related regulations,74 and the draft on amendments to the Copyright Act (the transposition of the EU Directive on copyright in the Digital Single Market75 and the Directive on copyright and related rights applicable to transmissions and retransmissions76 (together, the Copyright Directives)) ensuring better access for consumers to copyright-protected content while also protecting the rights of authors and performers.77

As of September 2021, the draft act to amend the MSA and related regulations has been sent for its second reading before the Estonian parliament, where additional motions to amend it can be presented. By means of this draft act, the revised Audiovisual Media Services Directive78 is to be transposed into Estonian legislation and the MSA will also regulate the provision of various services provided by modern video sharing platforms and social media channels.

With the draft on amendments to the Copyright Act, the Copyright Directives are going to be transposed into Estonian legislation. Currently, the draft act has been sent for its second reading before the Estonian parliament. However, adopting the Directive on copyright in the Digital Single Market may prove to be a challenge for the Estonian parliament, in particular with regard to the final vote at the third reading, in which the adoption of the draft act is ultimately decided. Previously, many politicians have openly opposed this legislation and, during the vote in the European Parliament, Estonia remained impartial, with only one of its European Parliament members voting for the Directive.

Footnotes

1 Mihkel Miidla is a partner and Kirsi Johanna Koistinen is an associate at Sorainen.

2 Reporters Without Borders, 'Data of press freedom ranking 2021', available at https://rsf.org/en/ranking_table.

12 Supreme Court of Estonia, 4 December 2020, order 1-17-9149.

13 Supreme Court of Estonia, 13 May 2005, case 3-2-1-17-05.

14 Supreme Court of Estonia, 26 August 1997, case 3-1-1-80-97.

15 Joosep Tiks, 'Praegused ja endised kriminaalid Eesti 200-s. Kaks visati välja, üks lahkus ise, ülejäänutele andestatakse', Eesti Päevaleht, 16 January 2019.

16 Available in English at http://vana.meedialiit.ee/code.html.

20 Harju County Court, 17 December 2012, case 1-12-11607/4.

22 Tallinn Administrative Court, 22 February 2019, case 3-18-544.

23 Supreme Court of Estonia, 16 April 2020, case 1-19-8262.

25 Supreme Court of Estonia, 14 June 2021, case 3-17-62.

28 For example, Supreme Court of Estonia, 25 September 2013, case 3-2-1-80-13.

30 The Supreme Court of Estonia, 26 June 2013, case 3-2-1-18-13.

31 Tallinn Circuit Court, 4 October 2019, case 2-17-9739.

34 B Beebe, et al. Trademarks, Unfair Competition, and Business Torts. Aspen Publishers, 2011, Chapter 3.

35 P Varul, et al. Võlaõigusseadus III. Kommenteeritud väljaanne (Law of Obligations Act III. Commented edition). Juura, 2009, p. 664.

36 Estonian Film Database's article about Magnus, available at www.efis.ee/et/filmiliigid/film/id/775/huvitavat-lugemist.

37 '“Magnus” keelu all 2025 aastani', Eesti Päevaleht, 28 April 2010.

38 D Hanschmidt, 'Kohus keelas filmi “Magnus” näitamise seitsmeks aastaks', Postimees, 13 May 2008.

39 R Ernits, 'Mängufilmi “Sangarid” tegijad said riigikohtus võidu', ERR news, 18 June 2019.

40 Tallinn Circuit Court, 9 January 2019, decision 2-16-16730.

41 Supreme Court of Estonia, 6 June 2012, decision 3-2-1-71-12.

42 Supreme Court of Estonia, 29 May 2013, decision 3-2-1-50-13.

43 Supreme Court of Estonia, 27 February 2017, decision 3-2-1-159-16.

44 Council Regulation (EC) No. 139/2004, Article 1.

45 Competition Authority, 19 June 2019, decision 5-5/2019-031.

46 Competition Authority, 14 June 2019, decision 5-5/2019-030.

47 Competition Authority, 18 October 2018, decision 5-5/2018-065.

48 Competition Authority, 19 June 2019, decision 5-5/2019-033.

49 Competition Authority, 8 April 2021, decision 5-5/2021-027.

50 Competition Authority, 19 February 2021, decision 5-5/2020-013.

51 Competition Authority, 10 July 2019, decision 5-5/2019-035.

55 Supreme Court of Estonia, 6 June 2018, case 2-16-14655.

56 Tallinn Circuit Court, 26 November 2018, case 2-14-6942.

57 European Court of Human Rights, 10 October 2013, Delfi AS v. Estonia (Application No. 64569/09).

58 Columbia University Global Freedom of Expression, Delfi AS v. Estonia (case significance), available at https://globalfreedomofexpression.columbia.edu/cases/delfi-as-v-estonia/.

59 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.

69 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society; available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001L0029&from=EN.

75 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; available at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019L0790&from=EN.

76 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; available at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2019.130.01.0082.01.ENG.

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