EMR_ Remit of Public Service Media_final

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PUBLIC SERVICE MEDIA ACCORDING TO
CONSTITUTIONAL JURISPRUDENCE
—
THE HUMAN RIGHTS AND CONSTITUTIONAL
LAW DIMENSION OF THE ROLE, REMIT AND
INDEPENDENCE
Study Based on Reports and Comparative Analysis
(Europe (Council of Europe & European Union), France,
Germany, Hungary, Italy, Poland and Spain)
Saarbrücken, 2 July 2009
FINAL REPORT
PUBLIC SERVICE MEDIA ACCORDING TO
CONSTITUTIONAL JURISPRUDENCE
—
THE HUMAN RIGHTS AND CONSTITUTIONAL LAW
DIMENSION OF THE ROLE, REMIT AND INDEPENDENCE
Study
prepared by the
Institut für Europäisches Medienrecht (EMR), Saarbrücken/Brüssel
with the assistance of
Karol Jakubowicz; Pascal Kamina; Mark Lengyel; Roberto
Mastroianni & Amedeo Arena; and Julián Rodríguez-Pardo
on behalf of the
European Broadcasting Union/Union Européenne de Radio-Télévision
Institut für Europäisches Medienrecht e.V. (EMR)
Franz-Mai-Straße 6
D-66121 Saarbrücken
T. +49 (0) 681/9927511
F. +49 (0) 681/9927512
W. http://www.emr-sb.de
E. [email protected]
Preface/Disclaimer/Acknowledgements
The Institute of European Media Law (EMR), Saarbrücken/Brussels, has been
commissioned by the European Broadcasting Union (EBU) to prepare a study, based on
the collection of information at the European level and from a number of countries, on
“Public Service Media According to Constitutional Jurisprudence”, including an
analytical summary.
The contractor has opted for the preparation of six country reports covering France,
Germany, Hungary, Italy, Poland and Spain in order to be able to provide information
on systems having different traditions as regards public service media, representing
different stages in the implementation and development of public service media, and
being characterised by a variety of legal approaches vis-à-vis the remit. Furthermore, a
report on the relevant case-law and additional instruments both of the Council of Europe
and the European Union has been included.
Whereas this short study is designed to provide accurate and authoritative information
in regard to the subject matter covered, the EMR assumes no legal responsibility for the
personal views of the authors of the respective country reports. Nor can the EMR
guarantee the accuracy of the data included in this study, or accept responsibility for any
use made thereof. Although every effort has been made to ensure the accuracy of the
material and the integrity of the analysis presented herein, EMR cannot accept liability
for any action taken on the basis of the information.
The Institute of European Media Law wishes to express its gratitude to the national
experts who have offered their assistance in the preparation of the present study.
Saarbrücken, 2 July 2009
5
Table of Contents
PREFACE/DISCLAIMER/ACKNOWLEDGEMENTS ........................................................................ 5
EXECUTIVE SUMMARY ........................................................................................................................ 9
INTRODUCTION .................................................................................................................................... 13
EUROPE ................................................................................................................................................... 15
I.
II.
1.
2.
3.
4.
III.
1.
2.
IV.
1.
2.
3.
4.
5.
V.
1.
2.
3.
4.
5.
VI.
INTRODUCTION ............................................................................................................................. 15
JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS ................................................... 16
Human Rights guarantees’ context of public service media.................................................... 16
Case law regarding the freedom of broadcasting ................................................................... 19
Capacity of public service broadcasters to apply before the Court ........................................ 26
Summary .................................................................................................................................. 28
CONVENTION, RECOMMENDATIONS, RESOLUTIONS AND DECLARATIONS OF THE
COUNCIL OF EUROPE .................................................................................................................... 28
Elaborating on the Art. 10 protection for public service media .............................................. 28
Summary .................................................................................................................................. 36
JURISPRUDENCE OF THE COURTS OF THE EUROPEAN COMMUNITIES............................................. 37
Introduction ............................................................................................................................. 37
Article 10 ECHR and its importance for measures aimed to protect pluralism ...................... 39
Admissibility of actions/the direct and individual concern for the purposes of
Article 230 EC ......................................................................................................................... 44
Remit and Supervision ............................................................................................................. 44
Summary .................................................................................................................................. 47
PRIMARY AND SECONDARY LAW OF THE EUROPEAN UNION/COMMUNITY ................................... 49
The Amsterdam Protocol on the system of public broadcasting.............................................. 50
The Resolution of the Council and of the Member States ........................................................ 51
The Audiovisual Media Services Directive .............................................................................. 51
The Revised Commission Communication on the application of State aid rules to
public service broadcasting..................................................................................................... 52
Summary .................................................................................................................................. 53
CONCLUSION AND PERSPECTIVES .................................................................................................. 53
FRANCE ................................................................................................................................................... 57
I.
INTRODUCTION ............................................................................................................................. 57
Short overview of the (electronic) media market ..................................................................... 57
Legal framework for PSM ....................................................................................................... 62
II. JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND
INDEPENDENCE OF PSM ............................................................................................................... 67
1.
General lines of the relevant jurisprudence ............................................................................ 67
2.
Mission of PSM in detail ......................................................................................................... 73
III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...................................................... 82
1.
2.
GERMANY ............................................................................................................................................... 85
I.
1.
2.
II.
1.
2.
III.
1.
2.
INTRODUCTION ............................................................................................................................. 85
Short overview of the (electronic) media market ..................................................................... 85
Legal framework for PSM ....................................................................................................... 87
JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND
INDEPENDENCE OF PSM ............................................................................................................... 92
General lines of the relevant jurisprudence ............................................................................ 92
Mission of PSM in detail ....................................................................................................... 101
POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS .................................................... 109
Constitutional context of the public service online activities ................................................ 109
Conclusions and implementation in the 12th Amending Treaty ............................................. 110
6
HUNGARY ............................................................................................................................................. 113
I.
INTRODUCTION ........................................................................................................................... 113
Short overview of the (electronic) media market ................................................................... 113
Legal framework for PSM ..................................................................................................... 115
INDEPENDENCE OF PSM ............................................................................................................. 119
1.
General lines of the relevant jurisprudence .......................................................................... 119
2.
III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS .................................................... 130
1.
2.
ITALY ..................................................................................................................................................... 133
I.
INTRODUCTION ........................................................................................................................... 133
1.
2.
1.
2.
POLAND ................................................................................................................................................. 155
I.
INTRODUCTION ........................................................................................................................... 155
1.
2.
1.
2.
SPAIN ...................................................................................................................................................... 171
I.
INTRODUCTION ........................................................................................................................... 171
Short overview of the (electronic) media market. .................................................................. 171
1.
2.
III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS. ................................................... 191
1.
2.
COMPARATIVE ANALYSIS/CONCLUSION .................................................................................. 193
I.
1.
2.
II.
1.
2.
3.
4.
5.
III.
IV.
INTRODUCTION ........................................................................................................................... 193
The (electronic) media market............................................................................................... 193
The legal framework for PSM ............................................................................................... 193
JURISPRUDENCE OF THE EUROPEAN AND NATIONAL COURTS ON THE ROLE, REMIT AND
Remit ..................................................................................................................................... 195
Scope of protection ................................................................................................................ 198
Requirements made for, and limits set on, the implementing legislation .............................. 200
Supervision (limits)................................................................................................................ 204
Summary ................................................................................................................................ 206
POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS .................................................... 207
CONCLUSION .............................................................................................................................. 208
AUTHORS .............................................................................................................................................. 211
7
8
Executive Summary
The Institute of European Media Law (EMR), Saarbrücken/Brussels, has been
commissioned by the European Broadcasting Union (EBU) to prepare a study, based on
the collection of information at the European level and from a number of countries, on
“Public Service Media According to Constitutional Jurisprudence”, including an
analytical summary.
The contractor has opted for the preparation of six country reports covering France,
Germany, Hungary, Italy, Poland and Spain in order to be able to provide information
on systems having different traditions and representing different stages in the
implementation and development of public service media (PSM), and being
characterised by a variety of legal approaches vis-à-vis the role, remit and
independence. Furthermore, a report on the relevant case-law and additional instruments
both of the Council of Europe and the European Union has been included.
Public service media are recognised as an important instrument to realise pluralism,
which in turn builds the base of a democratic society. Having this in mind the
jurisprudence is of particular interest because it elaborates on the role and remit of PSM.
It is not only important to provide a picture of the present state-of-the-art in terms of
protecting the freedom of broadcasting, particularly with a view to PSM; it also has to
be taken into account by any legislation on public service media especially against the
background of recent developments in new media services.
The study comes to the following main conclusions:
1. The European Court of Human Rights recognises the importance of the audiovisual
media for pluralism and diversity of opinion and the role of the press and the
audiovisual media as a “public watchdog”.
2. The Committee of Ministers and the Parliamentary Assembly of the Council of
Europe confirm the role of public service media for political and cultural pluralism
and their contribution to the diversity of opinion and democracy.
3. The Court of Justice of the European Communities acknowledges freedom of
expression as one of the fundamental principles of a democratic society; the Court
of First Instance also underlines the important role of public service broadcasting in
view of its cultural, social and democratic functions and its vital significance for
ensuring democracy, pluralism, social cohesion, and cultural and linguistic diversity.
4. The principle of pluralism and the essential role of public service broadcasting in
this context are also explicitly recognised by primary and secondary law of the
European Community.
5. The European Court of Human Rights recognises the possibility of the legislator to
take implementation measures which restrict the freedom of broadcasting, but only
insofar as they can be justified by a legitimate aim. By defining and concretising
legitimate aims to restrict the freedom of broadcasting the Court implies a remit of
9
broadcasting. The State is put in a position to act as a guarantor, having the
obligation to develop the national media order according to these requirements, to
guarantee that the public service broadcasting system provides for a pluralistic
audiovisual service and to protect the whole communication process - not only in
terms of the individual exercise of the freedom but also in terms of a guarantee of
the pluralism of opinions.
6. The ECJ guarantees the protection of the freedom of expression within the
fundamental freedoms of the EC Treaty. It derives from the freedom of expression
as guaranteed inter alia by Article 10 ECHR the possibility to justify a restriction on
these fundamental freedoms with the legitimate objective of maintaining pluralism
and preserving the diversity of opinions.
7. In its recent case law and decision-making practice, the Courts of the European
Communities and the Commission reiterated the view that public service
broadcasting was a service of general economic interest under the EC Treaty. The
Court highlighted the specificity of public service broadcasting, in particular the
need for editorial independence. Therefore, although public funding - via the licence
fee or direct grants - would in general be considered as State aid under Article 87(1)
EC Treaty, it benefits from the derogation for service of general economic interest
on the basis of Article 86 (2) EC Treaty in so far as the former prevents public
service organizations from fulfilling their remit. Public funding should remain
proportionate to the cost of discharging the public service remit.
8. The freedom of broadcasting is protected by the constitution in all mentioned
countries. Even though it is sometimes not explicitly mentioned in the relevant
constitutional law, the freedom was developed mostly as a corollary of the freedom
of expression.
9. The countries’ ordinary laws all concretise the remit of public service broadcasting,
the structure and organisation of the broadcasting system and of the public service
broadcasters as well as its funding and supervision.
10. The constitutional courts all assign public service media an essential role for
pluralism and democracy through an offer of balanced diversity and by representing
the current opinions in society to the greatest possible extent. They further stress
their availability to provide comprehensive and objective information. Besides, the
contribution of public service media to culture and linguistic diversity is often
pointed out by the courts. Some courts further deduced a remit of public service
media to provide the “essential” services in the area of audiovisual communication.
11. The constitutional courts all recognise the principle of independence as a central
subject matter of the protection afforded by the fundamental freedom.
10
12. Based on the principle of independence, a number of constitutional courts explicitly
confirm the necessity to ensure absence of governmental or one-sided private
influence, and explicitly guarantee the freedom of programming which, according to
most courts, also results in the requirement of an adequate funding system. The
German Constitutional Court further deduces a guarantee of existence and
development.
13. The jurisprudence in virtually all cases entrusts the legislator with implementing the
freedom of broadcasting by a positive order.
14. Most of the constitutional courts place the legislators’ implementation measures
explicitly under the requirement that the positive order established has to enable the
public service broadcasters to fulfil their remit, i.e. it has to ensure pluralism and to
secure the provision for an adequate funding system. Few of the constitutional
courts did not explicitly define those requirements but implicitly relied on them in
judgments that surrounded the issue.
15. Most of the constitutional courts at the same time set explicit limits for the legislator
which primarily results from the principle of independence of public service
broadcasters. In most cases they referred to the central element of freedom of
programming, and in some cases also the right to functionally appropriate funding.
16. The constitutional courts also judged on some specific and also different situations
regarding the competences of supervision; they essentially confirm the principle of
independence. Some of the limits to supervisory action which have been stated are
based on the guarantee of absence of governmental influence, others on the freedom
of programming. Some courts also state explicitly the need for a clear legal basis for
any supervisory action.
17. With respect to new media services and the extent to what the remit of PSM also
requires them being active in this field, the German Constitutional Court has clearly
stressed that there is an important role to be played by PSM when it comes to the
provision of their offers in new formats and/or via new platforms.
18. The legal acts of the European Community as well as the Recommendations,
Resolutions and Declarations of the Council of Europe (Committee of Ministers and
the Parliamentary Assembly) manifest a comprehensive understanding of the
mission of public service broadcasters and explicitly foresee, and even demand, the
public service broadcasters’ participation in new media services. They explicitly
recognise the necessity for public service organisations to use diverse platforms and
to offer various services to fulfil the public service remit. They furthermore
emphasise the importance of an appropriate institutional and financial framework
for digital television and Internet activities of public service broadcasters and their
possibility to adapt and “upgrade” themselves to the digital era. Increasingly, these
requirements are being implemented in national legislation.
11
12
Introduction
At the present stage, and not least owing to recent developments in different countries,
it is of particular importance to intensify research into the jurisprudence on the role and
remit of public service media (PSM) and their independence. In many European states,
constitutional courts in particular have elaborated on the role and mission of public
service media, which are recognised as being of fundamental importance for society and
democracy. Specific focus has very often been laid on the independence of PSM and
their functions which relate to the preservation and promotion of (cultural and
linguistic) diversity and pluralism of opinion, while attributing to PSM inter alia an
enhanced task in terms of objectivity in, and comprehensiveness of, the information
provided. Therefore, Article 10 of the European Convention on Human Rights and
Fundamental Freedoms and the related jurisprudence of the European Court of Human
Rights, as well as the instruments adopted in the framework of the Council of Europe,
will be considered as a common denominator for assessments of the topic at national
level; hence, analysis of this body of law seems of paramount importance as well.
Furthermore, the judgments of the Court of Justice of the European Communities and of
the Court of First Instance that have a bearing on the present topic shall be summarised
and an overview of the relevant legal acts will be provided as well.
This study is based on reports that have been elaborated by national experts in the
countries concerned on the basis of a questionnaire. These reports, therefore, follow
cum grano salis a single pattern: in the first place, the interest for present purposes was
focussed on the way in which constitutional courts develop the constitutional law
foundation of public service media. How these institutions are positioned in the context
of contributing to constitutionally-founded interests and guarantees, i.e.: what is the role
attributed to them with regard to issues of paramount importance such as democracy,
culture and education, and, particularly, freedom of expression and freedom of the
media? Of similar impact is the way in which constitutional courts define the scope of
protection afforded to PSM. Here, freedom from state intervention, the guarantee of
functionally-adequate funding as well as freedom of organisation are the relevant aspects. The main part of the respective reports is dedicated to the jurisprudence on the
mission or mandate of PSM: what do constitutional courts decide when the most
important constituent elements of the remit are at hand which have to be both ensured
and respected by the legislator? And, accordingly, in which manner is the supervision of
the execution of the tasks of PSM limited? Finally, points for further discussion are addressed, where appropriate, in particular with a view to more recent developments in
respect of the public service mission in the new media sector. In the fields researched,
description and analysis of the relevant legislation/regulation are integrated into the reports; in many instances the respective provisions shed considerable light on how, in
concrete terms, the constitutional law requirements are understood - and it is also sometimes clarified, vice versa, what the position of the courts is when assessing the constitutionality of those norms. Each national report is introduced by a short overview of the
market in which PSM operate, accompanied by a brief description of the constitutional
and ordinary law foundations for the present topic.
13
The study concludes with a comparative approach, an analysis of the main common
threads that, on the one hand, reflect on the European law requirements for the
definition and protection of the remit as well as independence, and, on the other,
represent important approaches towards the national constitutional law requirements for
the public service institutions.
14
Europe
The contribution of public service media to freedom of expression and pluralism
and the obligations on states to safeguard the remit and independence of PSM
Alexander Scheuer/Julia Maus
I.
Introduction
The jurisprudence of the European Court of Human Rights (hereafter the “Court”) in
respect to the remit of PSM is based on Art. 10 of the European Convention on Human
Rights (ECHR), which constitutes the fundamental right of freedom of broadcasting.
Article 10 ECHR reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This article shall not prevent States from
requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may
be subject to such formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or the rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.”
There is a substantial quantity of case law of the European Court of Human Rights that
concretises the character and the specific content of Article 10 in respect of the scope of
protection as well as to any resulting obligations on the legislator or (public service and
commercial) broadcasters. It will be described and analysed below (Part II). In addition,
the recommendations, resolutions and declarations of the Parliamentary Assembly and
the Committee of Ministers have a great impact on the topic, particularly because and
insofar as the latter express the will and intention of the Contracting Parties of the
Council of Europe to concretise the scope of protection and the relevant obligations for
its member states in the present context; thus these acts will be described in Part III.
Finally, Parts IV and V give a review of the relevant jurisprudence of the Court of the
European Communities (ECJ) and of the Court of First Instance (CFI), and provide an
overview over the relevant legal acts of primary and secondary Community law on the
topic.
15
II.
Jurisprudence of the European Court of Human Rights
1.
Human rights guarantees’ and public service media
The Court’s judgment of 7 December 1976 in the Handyside case1 described freedom of
expression as one of the basic conditions for the progress of democratic societies and
for the development of each individual:
“Freedom of expression constitutes one of the essential foundations of such a society, one
of the basic conditions for its progress and for the development of every man. Subject to
§ 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably
received or regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb the State or any sector of the population. Such are the demands of
that pluralism, tolerance and broadmindedness without with there is no democratic
society.2”
While the freedom of broadcasting is not explicitly named, Article 10 § 1 sentence 3
sets a limit for the rights mentioned in § 1 sentences 1 and 2 and thereby explicitly
refers to broadcasting. Though the relation of § 1 sentence 3 to § 2 is contentious
because they both have a limiting character, the former does make it clear that the
freedom of expression guaranteed in § 1 sentences 1 and 2 includes the freedom to
receive and impart information and ideas through broadcasting, and thus the freedom of
broadcasting.3
It can therefore be noted that Article 10 ECHR constitutes an individual right of free
transmission and reception of information independent from the means of technical
transmission. This understanding is confirmed by various decisions of the Court.
The Court also confirmed that Article 10 § 2 leaves to the Contracting States a margin
of appreciation which does not, however, mean an unlimited power of appreciation:
“The Court ... is empowered to give the final ruling on whether a ‘restriction’ [...] is
reconcilable with freedom of expression as protected by Article 10. The domestic margin
of appreciation thus goes hand in hand with a European supervision“ which “covers not
only the basic legislation but also the decision applying it, even one given by an
independent court.”4
In its subsequent judgments, the Court confirmed and expanded upon its statements on
the freedom of expression as one of the essential foundations of a democratic society
and the respective role of mass media. In the Sunday Times (No. 1) case (26.04.1979)5
the Court delivered its first judgment relating to freedom of expression and information
1
Handyside v. the United Kingdom, judgment of 7 December 1976, Series A No. 24.
2
Handyside v. the United Kingdom, judgment of 7 December 1976, Series A No. 24, § 49.
3
See application No. 6452/74, Sacchi v. Italy, decision of 12 March 1976, DR5, p. 43.
4
Handyside v. the United Kingdom, judgment of 7 December 1976, Series A No. 24, § 48.
5
Sunday Times v. the United Kingdom (No. 1), judgment of 26 April 1979, Series A No. 30, § 65.
16
in the press. The Court confirms the principles relating to freedom of expression defined
in the Handyside case and points out their importance for the press:
“As the Court remarked in its Handyside judgment, freedom of expression constitutes one
of the essential foundations of a democratic society; subject to paragraph 2 of Article 10, it
is applicable not only to information or ideas that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the
State or any sector of the population (p. 23, para. 49).These principles are of particular
importance as far as the press is concerned.”
The Court also concretised the function of mass media:
“Furthermore, whilst the mass media must not overstep the bounds imposed in the interests
of the proper administration of justice, it is incumbent on them to impart information and
ideas concerning matters that come before the courts just as in other areas of public
interest. Not only do the media have the task of imparting such information and ideas: the
public also has a right to receive them.”6
In the case in question, the Court held that there had been a violation of Article 10 by
reason of an injunction restraining publication of an article concerning a medical drug
and the litigation about its use. The injunction, based, at that time, on the English law on
contempt of court, was not found to be “necessary in a democratic society”.
In the Jersild case (23.09.1994)7 the Court re-emphasises the statements of the Sunday
Times case with respect to the function of mass media and assigns the press the role of a
“public watchdog”:
“The Court reiterates that freedom of expression constitutes one of the essential
foundations of a democratic society and that the safeguards to be afforded to the press are
of particular importance. Whilst the press must not overstep the bounds set, inter alia, in
the interest of "the protection of the reputation or rights of others", it is nevertheless
incumbent on it to impart information and ideas of public interest. Not only does the press
have the task of imparting such information and ideas: the public also has a right to receive
them. Were it otherwise, the press would be unable to play its vital role of "public
watchdog".”8
The Court also recognises the application of these principles in the area of audio-visual
media:
“Although formulated primarily with regard to the print media, these principles doubtless
apply also to the audio-visual media.”9
It further acknowledges the institutional role of the press in the process of opinionforming in a democracy and the granting of privileged protection to the press. The
6
Sunday Times v. the United Kingdom (No. 1), judgment of 26 April 1979, Series A No. 30, § 65.
7
Jersild v. Denmark, judgment of 23 September 1994, Series A No. 298.
8
Jersild v. Denmark, judgment of 23 September 1994, Series A No. 298, § 31.
9
17
privileged protection thereby includes special protection for the forum as an agent for
passing on opinion and information.10
In the case in question the Court found a violation of Article 10 by a Danish domestic
courts’ conviction of a journalist for interviewing a group of young people in the course
of which they had made racist remarks. The Court stated that the purpose of the report
could not objectively be regarded as having been to propagate racist ideas and opinions.
It holds that the methods of objective and balanced reporting may vary considerably
depending among other things on the media in question, but that it was not for that
Court, or for the national courts for that matter, to substitute their own views for those
of the press as to what technique of reporting should be adopted by journalists. The
Court clarifies the protection afforded by Article 10 which includes not only the
substance of the ideas and information expressed but also the form in which they are
conveyed, and refers to its judgment in the Oberschlick v. Austria case11. According to
the Court
“the punishment of a journalist for assisting in the dissemination of statements made by
another person in an interview would seriously hamper the contribution of the press to
discussion of matters of public interest and should not be envisaged unless there are
particularly strong reasons for doing so”.12
The Court thereby sets the main principle that the messenger is protected even if he
brings bad news, and builds the foundation for its further jurisprudence in which it
confirms the protection of the news-gathering process by protecting the sources and
editorial offices (Goodwin case13 and Ernst and others case14), and states that the press
cannot be held automatically liable for publishing confidential or secret information
(Fressoz case15, Plon case16, Dammann case17, Stoll case18).
10
See Egbert Dommering, Comments on Art. 10 ECHR, in: Castendyk/Dommering/Scheuer, European
Media Law, Alphen a/d Rijn: Kluwer Law International, 2008, p. 46.
11
Oberschlick v. Austria, judgment of 23 May 1991, Series A no. 204, p.25, § 57.
12
13
Goodwin v. the United Kingdom, judgment of 22 January 2008, No. 65723/01.
14
Ernst and others v. Belgium, judgment of 15 July 2003, No.33400/96.
15
Fressoz and Roire v. France, judgment of 21 January 1999, No. 29183/95).
16
Éditions Plon v. France, judgment of 18 May 2004, No. 58148/00).
17
Damann v. Switzerland, judgment of 25 April 2006, No. 77551/01).
18
In Stoll v. Switzerland, judgment of 25 April 2006, No. 69698/01, the Court highlights the
accordance of the journalists acting with professional standards and assigns the monitoring of the
compliance with journalistic ethics an added importance on the backdrop of the vast quantities of
information which circulate via traditional and electronic media involving an ever-growing number
of players. Though the Grand Chamber of the Court judged in the request contrary to the judgment
of the fourth section of 25 April 2006 - that there has been no violation of Article 10 ECHR;
judgment of 10 December 2007, No. 69698/01.
18
2.
Case law regarding the freedom of broadcasting
a)
Scope of protection
aa)
Groppera Radio AG and others (28.03.1990)
In the judgment on the Groppera Radio AG and others case19 the Court clarified that the
protection afforded by Article 10 also includes the technical installations. It furthermore
acknowledged that light music and advertising are also programme content and are
therefore protected by Article 10.
Still, in the case the Court did not confirm a violation of Article 10 because it held the
view that the Swiss authorities’ ban on rebroadcasting of programmes from Italy by
Swiss cable network operators had not gone beyond the margin of appreciation allowing
national authorities to interfere with the exercise of freedom of expression and did not
infringe those companies’ right to impart information and ideas as guaranteed by Article
10: it was not a form of censorship directed against programmes’ content or tendencies
but a measure taken against a station which it was reasonable for the Swiss authorities
to regard as, in reality, a Swiss station operating from the other side of the border in
order to circumvent the statutory telecommunications system in force in Switzerland.
The Court furthermore clarified the relation between the “reservation of licensing” in
Article 10 § 1 sentence 3, and § 2: § 1 sentence 3 builds the legal basis for the
regulation of (particularly) technical aspects, whereas § 2 builds the legal basis and
conditions for all other aspects of the licensing, which means that the refusal to grant a
licence has to be judged by the conditions of Article 10 § 2. As a direct consequence it
can be noted that a general refusal to licence private broadcasters would not be covered
by Article 10 § 1 sentence 3 and would have to be justified under the conditions of
Article 10 § 2.
bb)
Autronic AG (22.05.1990)
In the judgment on the Autronic AG case20 the Court confirmed that the protection of
Article 10 refers not only to the content of information but also to the reception
medium. Thus limitations in respect of the reception media are at the same time an
encroachment on the right to receive and to deliver information. According to the
Court’s statements, the protection of Article 10 includes all kinds of communication
channels and all kinds of transmission and reception media.
The subject matter of the proceeding was the use of a satellite dish by a home
electronics company to receive uncoded television programmes from a Soviet
telecommunications satellite to demonstrate this capacity in Swiss tradeshows. The
Court concluded that the Swiss authorities’ refusal to allow the demonstrations
constitutes a violation of Article 10. While noting that the refusal pursued legitimate
19
20
Groppera Radio AG and others v. Switzerland, judgment of 28 March 1990, Series A No. 173.
Autronic AG v. Switzerland, judgment of 22 May 1990, Series A No. 178.
19
aims - preventing disorder in telecommunications and preventing disclosure of
confidential information -, the Court held that the Swiss authorities’ action fell outside
the margin of appreciation allowing them to interfere with freedom of expression.
These principles regarding the scope of protection of Article 10 ECHR were also
applied by the Court in the field of terrestrial radio and cable television in its subsequent
decisions in the Informationsverein Lentia and others case and the Tele 1
Privatfernsehgesellschaft mbH case (21.09.2000)21.
b) The role of broadcasting
The Court’s statements in the subsequent judgments refer primarily to the conditions
and possibilities for national legislators and authorities to restrict the freedom of
broadcasting. The Court thereby indicates that the legitimate aims - such as: the aim to
serve to a certain extent the public interest and to secure and improve output quality and
balance; or to prevent a competitive advantage in politics and the commercial exertion
of influence on the process of formation of opinion by financially strong groups; or to
provide accurate and reliable information in accordance with the ethics of journalism may not only serve as a justification for a restriction of the freedom of broadcasting but
at the same time imply a remit of broadcasting. Thereby, the Court does not only define
the scope of protection of Article 10 ECHR, but also refers to the role of broadcasting.
aa)
Informationsverein Lentia and others (24.11.1993)
In this case, the Court examined for the first time a public monopoly on broadcasting
(which concerned Austria).22 Although the Court ascribed the Austrian monopoly the
capacity to contribute to the quality and balance of programme output and therefore
acknowledged that the system followed an aim consistent with Article 10 § 1 sentence 3
ECHR, it found a violation of Article 10. The Court held that the interference which the
monopoly occasioned to the applicants was "not necessary in a democratic society”.
First, the Court stated that the Member States are free to set up conditions for the
authorisation of broadcasting corporations on the basis of Article 10 § 1 sentence 3
ECHR which are not restricted to technical aspects and also can refer to the character
and the objectives of a programme, the potential audience and its expectations as well as
to reasons resulting from international obligations. This is also valid if an aim explicitly
named by Article 10 § 2 ECHR cannot be claimed to be followed; Article 10 § 1
sentence 3 ECHR hence constitutes a self-contained basis for provisions setting up
conditions for the authorisation of broadcasting corporations.
But the Court also points out that the restrictions based on Article 10 § 1 sentence 3
ECHR have to be validated in the light of the aims stipulated in Article 10 § 2 ECHR:
“This [the grant or refusal of a licence which may also be made conditional on other than
technical considerations] may lead to interferences whose aims will be legitimate under
the third sentence of paragraph 1, even though they do not correspond to any of the aims
21
Tele 1 Privatfernsehgesellschaft mbH v. Austria, No. 32240/96, judgment of 21 September 2000.
22
Informationsverein Lentia and others v. Austria, judgment of 24 November 1993, Series A No. 276.
20
set out in paragraph 2. The compatibility of such interferences with the Convention must
nevertheless be assessed in the light of the other requirements of paragraph 2.”23
If States establish other than technical limitations, any measure must stand the
justification test provided for by Article 10 § 2 ECHR which includes an examination
whether the restrictions introduced are necessary in a democratic society. In the decision
the Court furthermore concretised and pointed out the fundamental role of freedom of
expression in a democratic society, and in particular where, through broadcasting/the
press, it imparted information and ideas of general interest which the public, moreover,
was entitled to receive. The Court recognises explicitly the principle of pluralism and
the function of the State as a supreme guarantor to secure pluralism and particularly in
the area of audio-visual media, whose programmes are often broadcast very widely.
Therefore, a public monopoly would impose a far-reaching restriction on the freedom of
expression which is not justified by a pressing need. The Court came to this conclusion
(inter alia) in consideration of the technical progress in recent decades and the scarcity
of frequencies and channels, and referred to the possibility of finding equivalent, less
restrictive solutions (for example, licences on specified conditions of variable content)
and measures to prevent the development of private monopolies.
bb)
Tele 1 Privatfernsehgesellschaft mbH case (21.09.2000)
The Court followed these principles in the Tele 1 Privatfernsehgesellschaft mbH case.24
It concluded that there had been a violation of Article 10 by the Austrian authorities’
refusal to grant a private company a licence to set up and operate a terrestrial television
transmitter, but only during the period from 1993 to 1996, when there had been no
provision in the law for a television broadcasting licence to be granted to anyone but the
national broadcasting corporation. For the years 1996 and 1997 private broadcasting
companies had been free to create and transmit programmes by cable without
restriction, while terrestrial broadcasting remained the reserve of the national
broadcasting corporation. The Court confirmed that this regulation does not violate
Article 10 because almost every home in Vienna could be connected to the cable
network. This led the Court to the view that cable was a viable alternative to terrestrial
television for private broadcasters and that the interference with the applicant’s right
under Article 10 was therefore appropriate in respect to the aims followed.
cc)
Vgt Verein gegen Tierfabriken (28.06.2001)
The judgment in the Vgt Verein gegen Tierfabriken case25 confirmed the possibility to
justify a prohibition of political advertising with the aim of preventing a competitive
advantage in politics and the commercial exertion of influence on the process of
formation of opinion by financially strong groups.
23
Informationsverein Lentia and others v. Austria, judgment of 24 November 1993, Series A No. 276,
§ 32.
24
Tele 1 Privatfernsehgesellschaft mbH v. Austria, No. 32240/96, judgment of 21 September 2000.
25
Vgt Verein gegen Tierfabriken v. Switzerland, No. 24699/94, judgment of 28 June 2001.
21
However, in the particular case the Court stated that the Swiss authorities’ refusal to
broadcast a television advertisement via the Swiss Radio and Television Company
because of its “manifestly political nature” was not justified with relevant and sufficient
arguments and did not answer a particularly pressing social need. The Court did not see
a financially powerful group in the applicants’ association, bent on restricting the
broadcasters’ independence, unduly influencing public opinion or compromising
equality of opportunity between the different social forces. Consequently the refusal had
not been “necessary in a democratic society” and contravened Article 10 ECHR.
The Court pointed out that the Swiss authorities had a certain margin of appreciation to
decide whether there was a “pressing social need” to refuse the broadcasting of the
commercial and that this margin of appreciation is particularly essential in commercial
matters, and especially in an area as complex and fluctuating as that of advertising.26
However, the Court attributed to the applicants’ spot a political character since it did not
incite the public to purchase a particular product and since the protection of animals and
the manner in which they are treated is the subject of debates in society.27 As a result the
Court stated that the extent of the margin of appreciation is reduced, “since what is at
stake is not a given individual’s purely ‘commercial’ interests, but his participation in a
debate affecting the general interest.”28
In principle, a restriction on freedom of expression requires convincing evidence of a
pressing social need. The Contracting States have a certain margin of appreciation in
assessing whether such a need exists. But the Court clarified, that the extent of the
“margin of appreciation” depends on the regulated subject referring to its judgment in
the Hertel case29, in which it stated:
“Such a margin of appreciation is particularly essential in commercial matters, especially
in an area as complex and fluctuating as that of unfair competition. [...] It is however
necessary to reduce the extent of the margin of appreciation when what is at stake is not a
given individual’s purely ‘commercial’ statements, but his participation in a debate
affecting the general interest, for example, over public health.”30
While for types of artistic and commercial speech a broad margin of appreciation is
allowed, it is thus reduced in the case of political speech.
26
Vgt Verein gegen Tierfabriken v. Switzerland, No. 24699/94, judgment of 28 June 2001, § 69,
referring to the following cases: markt intern Verlag GmbH and Klaus Beermann v. Germany,
judgment of 20 November 1989, Series A no. 165, pp. 19-20, § 33 and Jacubowski v. Germany,
judgment of 23 June 1994, Series A no. 291-A, p. 14, § 26.
27
Vgt Verein gegen Tierfabriken v. Switzerland, No. 24699/94, judgment of 28 June 2001, § 70.
28
Vgt Verein gegen Tierfabriken v. Switzerland, No. 24699/94, judgment of 28 June 2001, § 71,
referring to Hertel v. Switzerland, judgment of 25 August 1998, No. 59/1997/843/1049.
29
Hertel v. Switzerland, judgment of 25 August 1998, No. 59/1997/843/1049.
30
Hertel v. Switzerland, judgment of 25 August 1998, No. 59/1997/843/1049, § 47.
22
dd)
Demuth (05.11.2002)
In the Demuth case31 the Court confirmed the possibility of the States to place the
granting of a licence under conditions which are justified by being necessary in a
democratic society, here the aim to improve output quality and balance.
The case concerned a refusal by the Swiss Federal Council to grant a licence for cable
distribution of a specialist television programme about cars which the Court held
compatible with Article 10 ECHR. The Court considered the broadcast licensing system
in Switzerland based on the Radio and Television Act to be consistent with Article 10 §
1 sentence 3. The conditions of the Radio and Television Act rely on the premise that
television programmes must to a certain extent also serve the public interest and thereby
help to improve output quality and balance. These legitimate aims therefore justify the
refusal of the Swiss’ authorities as the applicant’s proposed programme did not meet
the conditions of the Radio and Television Act, taking into account the fact that the
refusal decision also stated that the applicant might be granted a licence if certain
changes were made to the programme’s content. The authorities had therefore not
exceeded their margin of appreciation.
ee)
Murphy (10.07.2003)
In a judgment delivered in July 2003 the Court held that a prohibition on broadcasting a
radio advertisement for a religious meeting could be justified under Article 10 ECHR.32
The Court assigns the Member States a wider margin of appreciation when regulating
freedom of expression in the context of religious advertising than in the context of
political speech or questions of public interest. The Court points out that there is no
uniform European conception of the requirements of "the protection of the rights of
others" in relation to possible attacks on their religious convictions, and considers the
state authorities in a better situation than the international judge to give an opinion on
the exact content of these requirements with regard to the rights of others, as well as on
the "necessity" of a "restriction" intended to protect from such material those whose
deepest feelings and convictions would be seriously offended. In the case in question it
found that there were “relevant and sufficient” reasons justifying the interference with
the applicant's freedom of expression.
ff)
Radio France and others v. France (30.03.2004)
In this case33 the Court re-emphasises the essential role played by the electronic media
in a democratic society and reiterated that
“although the press must not overstep certain bounds, in particular in respect of the
reputation and rights of others, its duty is to impart - in a manner consistent with its
obligations and responsibilities - information and ideas on all matters of public interest,
31
Demuth v. Switzerland, No. 38743/97, judgment of 5 November 2002, Reports 2002-IX.
32
Murphy v. Ireland, No. 44179/98, judgment of 10 July 2003, Reports 2003-IX (extracts).
33
Radio France and others v. France, judgment of 30 March 2004, Application no. 53984/00.
23
and that not only does the press have the task of imparting such information and ideas, the
public also has a right to receive them.”34
Furthermore the Court points out, that the national authorities’ margin of appreciation is
circumscribed by the interest of the democratic society in enabling the press to play its
vital role of “public watchdog” and confirms again that these principles are applicable
to the audio-visual media.
The Court also refers to the Bladet Tromso case35 and to its statements there with respect
to duties and responsibilities of journalists:
“The Court reiterates that by reason of the ‘duties and responsibilities’ inherent in the
exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in
relation to reporting on issues of general interest is subject to the proviso that they are
acting in good faith in order to provide accurate and reliable information in accordance
with the ethics of journalism. Moreover, a general requirement for journalists
systematically and formally to distance themselves from the content of a quotation that
might insult or provoke others or damage their reputation is not reconcilable with the
press's role of providing information on current events, opinions and ideas.”36
In the case in question Radio France journalists had been convicted of defamation for
repeating in several news bulletins information that had appeared in a weekly magazine
to the effect that a former deputy prefect had supervised the deportation of Jews during
the Second World War. The Court found that the journalistic had acted in accordance
with journalism ethics in repeating information published in a weekly magazine. By
stating that the deputy prefect had admitted guilt, however, they had put out incorrect
information not published elsewhere. Considering the “duties and responsibilities” of a
journalist and the great impact and the immediate and powerful effect of audio-visual
media the Court considered that there was a “pressing social need” to take the measures
in question against the applicants. The Court concluded that there had been no violation
of Article 10.
gg)
Faccio (31.03.2009)
In this case37 the applicant claimed a violation of his right to receive information as
protected by Article 10 ECHR (as well as his right to respect for his private and family
life as guaranteed by Article 8 ECHR and his right of property, enshrined in the First
Protocol to the Convention) by the police’s action in locking and packing up the
applicant’s television to make it unserviceable. This measure was taken by the police
after the applicant asked for a cancellation of his subscription to public service
television and to be relieved of the payment of the licence fee while he, at the same
time, intended to continue watching - only - commercial channels.
34
Radio France and others v. France, judgment of 30 March 2004, Application no. 53984/00, § 33.
35
Bladet Tromso and Stensaas v. Norway, judgment of 20 May 1999, No. 21980/93.
36
Radio France and others v. France, judgment of 30 March 2004, Application no. 53984/00, § 37.
37
Faccio v. Italy, decision of 31 March 2009, No. 33/04.
24
The Court declared the applicant’s appeal inadmissible, explaining that it considered the
measure to have the legitimate objective of preventing individuals from cancelling their
subscription to public service television or from the non-payment of a fee which aims to
finance public service broadcasting. It further states that a system making it possible to
watch only commercial channels without paying the public service licence fee would
contradict the nature of the licence fee as contribution to a public service. The Court
states that the payment of the licence fee is not a consideration for the provision of a
given channel, but a contribution to the financing of a community service.
The Court assumes that in the case in question the violation of the right to receive
information (to respect for private and family life and the right of property) is
proportional to the legitimate aim to guarantee the funding of public service
broadcasting and also confirms the possibility for Member States’ to tie the obligation
to pay the licence fee to the availability of a television independently of the viewer’s
wish to watch public service channels.
hh)
Kaleta (16.07.2009)
In this case38, Helena Kaleta - a journalist employed by the Polish public television
company Telewizja Polska Spółka Akcjna (TVP) - claimed a violation of Article 10
ECHR because of the reprimand from her employer which she received after criticising
the programming of TVP in an interview published in a national newspaper. The Court
weighed up the right to freedom of expression on matters of general interest, the
applicant’s professional obligations and responsibilities as a journalist on the one hand
and, on the other, the duties and the responsibilities of employees towards their
employers. It concluded that the interference was not necessary in a democratic society
and that there has been a violation of the applicant’s freedom of expression protected by
Article 10 ECHR.
Apart from the argument that the applicant as a journalist has the role of contributing to
and encouraging the public debate on matters of general public interest - such as the
issues involved in the case in question - and that the applicant’s criticism relied on a
sufficient factual basis and did not represent defamatory accusations or personal attacks,
the Court also drew on the State’s role of guaranteeing pluralism when declaring:
“Where a State decides to create a public broadcasting system, the domestic law and
practice must guarantee that the system provides a pluralistic audiovisual service.”
The Court thereby explicitly assumes the States’ obligation to guarantee a pluralistic
audiovisual service by the established public service broadcasting system.
c)
Obligation to protect the communication process
As a consequence of these judgments, it can be noted that the jurisprudence of the Court
primarily intervenes to reject interference with the subjective guarantees of Article 10
ECHR and is not, to the same extent, concerned with the objective character of the
freedom. Nevertheless, by defining and concretising legitimate aims to restrict the
freedom of broadcasting, the Court implies a remit of broadcasting which may result in
38
Kaleta v. Poland, judgment of 16 July 2009, No. 20436/02.
25
an objective guarantee. Especially according to the statements in the Kaleta case, where
the Court explicitly drew on the States’ obligation to guarantee a pluralistic audiovisual
public service and the Informationsverein Lentia and others case, where the Court
recognises explicitly the function of the State as a supreme guarantor to secure
pluralism, it can be concluded that Article 10 ECHR not only constitutes an individual
right of free transmission and reception of information but also gives the States the
possibility to develop their national media regimes according to these requirements and
thereby obliges them to protect the whole communication process not only in terms of
the individual exercise of the freedom but also in terms of a guarantee of the pluralism
of opinions.
This conclusion is reaffirmed by a recent judgment of the Court regarding a prohibition
of political advertising:39 The Court recognised the maintenance of the political debates’
quality, the maintenance of the broadcasters’ independence from political parties, the
prevention of greater opportunities for financially powerful groups to market their
opinions, the guarantee of pluralism and the support of the integrity of democratic
processes as legitimate aims of the Norwegian prohibition of political advertising.
3.
Right of public service broadcasters to apply to the Court
In the decision of 23 September 2003 in the Radio France and others case40 the Court
clarified that public service broadcasters can be qualified as “non-governmental
organisations” in the meaning of Article 34 of the Convention and can therefore apply
to the Court. Article 34 reads as follows:
“The Court may receive applications from any person, non-governmental organisation or
group of individuals claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the protocols thereto. The
High Contracting Parties undertake not to hinder in any way the effective exercise of this
right.”
The Court concluded in the decision of Radio France and others v. France that the
national company Radio France is a “non-governmental organisation” within the
meaning of Article 34 of the Convention.
The Court defines - on the basis of the Convention’s case law relating to the question of
whether territorial authorities and other public law entities should be qualified as
“governmental organisations” - the category of the term:
“[...] the category of 'governmental organisation' includes legal entities which participate in
the exercise of governmental powers or run a public service under government control. In
order to determine whether any given legal person other than a territorial authority falls
within that category, account must be taken of its legal status and, where appropriate, the
rights that status gives it, the nature of the activity it carries out and the context in which it
is carried out, and the degree of its independence from the political authorities.”41
39
TV Vest SA and Rogaland Pensjonistparti v. Norway, judgment of 11 December 2008,
No. 21132/05.
40
Radio France and others v. France, decision of 23 September 2003, Application no. 53984/00.
41
Radio France and others v. France, decision of 23 September 2003, Application no. 53984/00.
26
Regarding Radio France the Court concluded that it has been entrusted with public
service missions and depends to a considerable extent on the State for its financing, but
that the legislature has devised a framework which is plainly designed to guarantee its
editorial independence and its institutional autonomy.
The Court outlined that the legal framework guarantees freedom of audio-visual
communication by stipulating that Radio France is under the control of an “independent
authority” (here the Conseil supérieur de l’audiovisuel, CSA), which should also
preserve the independence and impartiality of the public radio, and does not come under
the aegis of the State. The independence also results from the organisation of Radio
France stipulated by the Act (for example: only four out of twelve members of its board
of directors represent the State, and its Chairman is appointed by the CSA).
Although the Court states that some difference can be noted between Radio France and
the companies operating “private” radio stations, it does not assign a dominant position
or a monopoly over radio broadcasting to Radio France owing to the legal framework
which clearly places radio broadcasting in a competitive environment. Based on these
considerations the Court concludes that the national company Radio France is a nongovernmental organisation in the meaning of Article 34 of the Convention.
The Court applies these principles also in the case of Österreichischer Rundfunk v.
Austria.42 The Court observes that the Österreichischer Rundfunk (ORF) is, or more
precisely has been, transformed into a public law foundation without an owner, so that
its capital (though stemming from public means) is no longer held by the State. The
Court considers that the fact that a public broadcaster is largely dependent on public
resources for the financing of its activities, is no decisive criterion.
Although the public authorities exercise a certain level of control (since the Federal
Government and the Länder appoint a majority of the members of the Foundation
Council, i.e. 18 out of 35) the Court assigns ORF the necessary independence resulting
from the legal framework which requires: objectivity and diversity of reporting;
preservation of ORF’s independence from the State and the parties: a guarantee of the
independence of the editorial and journalistic work of ORF’s staff members. The
structural rules guarantee the necessary in stipulating that the members of the
Foundation Council as well as the Director General of ORF are only bound by law in
the exercise of their functions and do not receive any instructions. Furthermore the
monitoring of ORF’s compliance with the legal framework (of the 2001 Act) is operated
by an independent body consisting of a majority of judges, the Federal Communication
Senate. Finally the Court considered ORF not to hold a broadcasting monopoly and
recognised the fact that it operates in a sector open to competition.
Consequently, the Court acknowledged that the legal framework guarantees Austrian
Broadcasting’s editorial independence and institutional autonomy which led the Court
to the conclusion to qualify ORF as a non-governmental organisation in the meaning of
Article 34 of the Convention.
42
Österreichischer Rundfunk v. Austria, judgment of 7 December 2006, Application number
35841/02.
27
4.
Summary
The European Court of Human Rights recognises freedom of expression as one of the
basic conditions for the progress of democratic societies and for the development of
each individual. It stresses the institutional role of the press as a “public watchdog”. It
further confirms that the principles relating to the freedom of expression are also valid
in the area of audio-visual communication. It highlights in this context the principle of
pluralism and the function of the State as a supreme guarantor to secure pluralism, and
particularly in the area of audio-visual media which is explicitly confirmed by the
Court’s judgments in the Informationsverein Lentia and others and the Kaleta cases (in
respect of public service broadcasting). Against this background it further acknowledges
the possibility to derogate the freedom of expression on condition that the restriction
follows a legitimate aim and is necessary in a democratic society. In the Faccio case the
Court states that an infringement of the subjective right to receive information is
proportional to the legitimate aim of guaranteeing the funding of public service
broadcasting and confirms that Member States’ may tie the obligation to pay the licence
fee to the availability of a television set independently of the viewer’s wish to watch
public service channels.
The other judgments concerned an applicant’s claim of a violation of his subjective
right under Article 10 ECHR; they did not concern directly a possible objective
character of Article 10 ECHR. Nevertheless, the Court - by recognising the possibility
to justify restrictions of the freedom of expression with legitimate aims which mainly
refer to the maintenance of pluralism - recognised the positive obligation of the States to
establish a legal framework which allows operators to act and make use of their freedom
and, moreover, which secures pluralism. There is additionally an aspect which could be
characterised as “cross-relationship” between both elements included in Article 10:
when the legitimacy of restrictive measures is verified, the aim of realising the freedom
of expression and the maintenance of pluralism must be taken into account.
III. Convention, Recommendations, Resolutions and Declarations of
the Council of Europe
The Council of Europe made statements on, and concretised, the role, remit and
independence of public service broadcasting not only through judgments of the
European Court of Human Rights but also through numerous Recommendations,
Resolutions and Declarations of the two institutions the first of which acts as a standardsetting body: the Committee of Ministers and the Parliamentary Assembly.
1.
Elaborating on the Art. 10 protection for public service media
The Prague Resolution No. 1 on the future of public service broadcasting was adopted
at the 4th European Ministerial Conference on Mass Media Policy in Prague on 7 and 8
December 1994 and sets very specific requirements for, in particular, public service
broadcasting.
28
“The public service broadcasting missions shall include the provision of
-
a reference point for all members of the public and elements for social cohesion and
integration,
-
a forum for broad public debate,
-
a pluralistic, innovative and varied programming based on high ethical and quality
standards,
-
programme schedules and services of interest to a wide public, also considering
minorities’ interest,
-
some reflection of different philosophical ideas and religious beliefs in society
aimed at enhancing mutual understanding and tolerance and promoting community
relations in pluriethnic and multicultural societies,
-
programming that contributes to diversity of national and European cultural
heritage,
-
programmes with a significant proportion of original productions and use of
independent producers,
-
programme services normally not offered by commercial broadcasters.”43
The Recommendation No. R (97) 21 on the media and the promotion of a culture of
tolerance (Committee of Ministers) notes that
“media can make a positive contribution to the fight against intolerance, especially where
they foster a culture of understanding between different ethnic, cultural and religious
groups in society”44.
The Committee thereby points out the remit of public service broadcasters to promote a
culture of tolerance and understanding while paying particular attention to the needs of
minority groups45:
“While public service broadcasters have a special commitment to promote a culture of
tolerance and understanding [...]”.46
43
Summary by Susanne Nikoltchev in “European Backing for Public Service Broadcasting, Council of
Europe Rules and Standards”, IRIS Special, The Public Service Broadcasting Culture, p. 7-15 (12).
44
Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance.
45
Cf. EMR, The Contribution of Public Service Media to Social Cohesion and to the Promotion of a
Culture of Tolerance, Study on behalf of the Council of Europe, Directorate General of Human
Rights and Legal Affairs, Media and Information Society Division (January 2008), available at:
http://www.emr-sb.de/news/EMR_FinalReport.pdf, with best practice examples from inter alia
France, Poland and Spain.
46
Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance, Point 5.
29
In Recommendation No. R (99) 1 on measures to promote media pluralism the
Committee of Ministers re-emphasises the commitment of public service media and the
media in general to enable different groups and interests in society to express
themselves and to contribute thereby to the diversity of opinion and democracy:
“[...] the media, and in particular the public service broadcasting sector, should enable
different groups and interests in society — including linguistic, social, economic, cultural
or political minorities — to express themselves;”.
The Committee states the general principle that
“Member States should consider possible measures to ensure that a variety of media
content reflecting different political and cultural views is made available to the public.”47
It further recognises the role of broadcasting for political and cultural pluralism:
“In view of the expansion of the telecommunications sector, member States should take
sufficient account of the interests of the broadcasting sector, given its contribution to
political and cultural pluralism [...]”.48
The Committee of Ministers of the Council of Europe in its Recommendation No. R (99) 1
on measures to promote media pluralism also expresses the need for public service
broadcasting to develop in order to participate in new services:
“Member States should maintain public service broadcasting and allow it to develop in
order to make use of the possibilities offered by the new communication technologies and
services.”.49
The Recommendation 1407 (1999) on media and democratic culture was passed by the
Parliamentary Assembly only 3 months after the aforementioned recommendation of
the Committee. The Assembly underlines the important function and variety of public
service broadcasting programmes:
“Public service broadcasting (which should not be confused with state owned media) has
traditionally been considered as a guarantee that all segments of the public, including
minority groups, are provided with programmes that are impartial and varied, free of
government or partisan interference, comprising information, education, culture and
entertainment.”50
The Parliamentary Assembly of the Council of Europe also underlines the importance
of public service broadcasting’s independence, and in particular in view of existing
political and economic pressure and increasing competition from commercial
broadcasters due to the new information technologies. The Assembly demands efforts to
develop public service broadcasting so that it can respond appropriately to new
challenges.
47
Recommendation No. R (99) 1 on measures to promote media pluralism.
48
Recommendation No. R (99) 1 on measures to promote media pluralism, Point V of the appendix.
49
Recommendation No. R (99) 1 on measures to promote media pluralism, Point II.2 of the appendix.
50
Recommendation 1407 (1999) on media and democratic culture, point 8.
30
The Committee of Ministers of the Council of Europe already expressed its insistence
on the editorial independence and institutional autonomy of public service broadcasting
organisations in Recommendation No. R (96) 10 on the independence of public service
broadcasting which further connects the demand for public service broadcasters’
independence with a possible participation in new media services:
“Public service broadcasting organisations should be able to exploit new communications
technologies and, where authorised, to develop new services based on such technologies in
order to fulfil in an independent manner their missions as defined by law.”51
In the Declaration, issued by the Committee of Ministers on 7 December 2000, the
Committee intensifies the idea of involving the public in the making of programmepolicy and again addresses the important role of public broadcasting for the cultural
diversity and its safeguarding.
Based on the key role of public service broadcasting for democracy the Committee of
Ministers of the Council of Europe outlines, in Recommendation (2003) 9 on measures
to promote democratic and social contribution of digital broadcasting, the important
role of public service broadcasting in a democratic society52:
“Stressing the specific role of the broadcasting media, and in particular of public service
broadcasting, in modern democratic societies, which is to support the values underlying the
political, legal and social structures of democratic societies, and in particular respect for
human rights, culture and political pluralism [...]”.53
With reference to this the Committee demands a leading role for the public service
broadcasting in the transition to digital terrestrial broadcasting and therefore claims to
provide the financial support and the legal, economic, technical and other conditions
necessary for the public service broadcasting to be present on the different digital
platforms:
“The Committee of Ministers [...] recommends that the governments of the member states
[...] guarantee that public service broadcasting, as an essential factor for the cohesion of
democratic societies, is maintained in the new digital environment by ensuring universal
access by individuals to the programmes of public service broadcasters and giving it inter
alia a central role in the transition to terrestrial digital broadcasting [...]”.54
In particular public service broadcasting should be enabled to offer new special interest
channels and interactive services such as electronic programme guides and programmerelated online services.
51
Recommendation No. R (96) 10 on the independence of public service broadcasting, Point VII.
52
Cf. EMR, The Public Service Media Promotion and Facilitation of a Wider Democratic
Participation of Individuals, Study on behalf of the Council of Europe, Directorate General of
Human Rights and Legal Affairs, Media and Information Society Division (April 2008), available
at: http://www.emr-sb.de/news/EMR_CoE_Final_Report_28042008_final.pdf, with best practice
examples inter alia from Germany.
53
Recommendation (2003) 9 on measures to promote democratic and social contribution of digital
broadcasting.
54
Recommendation (2003) 9 on measures to promote democratic and social contribution of digital
broadcasting, point e.
31
Recommendation (2003) 9 is also reflected by the commitment of the Kyiv Resolution
No. 2 on cultural diversity and media pluralism adopted at the 7th Ministerial
Conference on Mass Media, which highlights the important role of public service
broadcasting in the digital environment as it represents an element of social cohesion, a
reflection of cultural diversity and an essential factor for pluralistic communication
accessible to all.
With Recommendation 1641 (2004) on public service broadcasting the Parliamentary
Assembly backed the demands of the Committee made in Recommendation (2003) 9. It
summarises the role and remit of public service broadcasting as follows:
“Public service broadcasting, whether run by public organisations or privately-owned
companies, differs from broadcasting for purely commercial or political reasons because of
its specific remit, which is essentially to operate independently of those holding economic
and political power. It provides the whole of society with information, culture, education
and entertainment; it enhances social, political and cultural citizenship and promotes social
cohesion. To that end, it is typically universal in terms of content and access; it guarantees
editorial independence and impartiality; it provides a benchmark of quality; it offers a
variety of programmes and services catering for the needs of all groups in society and it is
publicly accountable.”55
Furthermore, the Assembly emphasised the importance of an appropriate institutional
and financial framework for digital television and Internet activities to public service
broadcasters and their possibility to adapt and “upgrade” themselves to the digital era.
The Recommendation Rec (2007) 3 on the remit of public service media in the
information society of the Committee of Ministers of the Council of Europe takes into
account the existence of new platforms and services in the information society and
acknowledges the public service remit not only in the context of public service
broadcasting but in general in the context of public service media. The
Recommendation therefore embraces to a large extent the main guidelines of
Recommendation 1641 (2004) on broadcasting and recognises in general the necessity
for public service organisations to use diverse platforms and to offer various services to
fulfil the public service remit.
In Recommendation 1855 (2009) on the regulation of audio-visual media services the
Parliamentary Assembly of the Council of Europe observes the increasing conversion of
traditional audio-visual and print media into new forms of electronic media for images,
sound and text which are accessible via different fixed or mobile platforms. The
Assembly particularly refers in this context to broadcasting and to the fact that much of
what is now considered broadcasting may in future be delivered over the Internet. In
this context the Assembly further expresses a demand to ensure the international cooperation, independence of national regulators for the audio-visual media sector from
undue party political, governmental or commercial influence, to preserve the principle
of public service broadcasting in the changing media environment and to extend it
further to audio-visual media services as a whole. This is in accordance with previous
55
Recommendation 1641 (2004) on public service broadcasting, point 2.
32
statements confirming the necessity for public service organisations to use diverse
platforms and to offer various services to fulfil the public service remit.
The Assembly puts forward, in the context of the drafting of an amending protocol to
the European Convention on Transfrontier Television (ECTT), several considerations to
be taken into account. Besides organisational and procedural rules the Assembly calls
for a definition and explanation of the “public service mission” for audio-visual media:
“the ‘public service mission’ for audio-visual media services should be defined and
explained”.56
The European Convention on Transfrontier Television (ECTT)57 contains legally
binding obligations on the States that are parties to the Convention. Article 10a
recognises the importance of media pluralism for the exercise of freedom of expression
and information (as underlined in the Declaration of the Committee of Ministers of 29
April 1982). While emphasising in a more general manner the responsibility of States to
avoid a situation where programme services transmitted or retransmitted within their
jurisdiction endanger media pluralism, it does not specify any measures to be taken by
them.58
Article 10a59 of the Convention reads as follows:
“The Parties, in the spirit of co-operation and mutual assistance which underlies this
Convention, shall endeavour to avoid that programme services transmitted or retransmitted
by a broadcaster or any other legal or natural persons within their jurisdiction, within the
meaning of Article 3, endanger media pluralism.”
An Agreement on the Draft Amendments to the ECTT60 (to be renamed “Council of
Europe Convention on transfrontier audiovisual media services”) as well as a Draft
Explanatory Report to the revised ECTT61 was reached in June 2009. The draft
amendments provide for a further development of Article 10a, which will be
represented in the revised ECTT numbered as Article 12.
Article 12 on media pluralism and diversity adopts the statements by the Committee of
Ministers as laid down in Recommendation Rec (2007) 2 on media pluralism and
diversity of media content as well as in the Declaration of the Committee of Ministers
56
Recommendation 1855 (2009) on the regulation of audio-visual media services, point 10.2.
57
Available at: http://conventions.coe.int/Treaty/en/Treaties/Html/132.htm.
58
Explanatory Report as amended by the provisions of the Protocol (ETS No. 171), point 204,
available at: http://conventions.coe.int/Treaty/en/Reports/Html/132.htm.
59
Article added according to the provisions of the Protocol (ETS No. 171), which entered into force on
1 March 2002.
60
Provisional Agreement on the Draft Amendments to the ECTT of 27 February 2009, available at:
http://www.coe.int/t/dghl/standardsetting/media/T-TT/T-TT_2008_003Rev_en%20Agreements%20
on%20amendts%20ECTT%20_2_.pdf
61
Draft Explanatory Report to the revised ECTT, available at:
http://www.coe.int/t/dghl/standardsetting/media/T-TT/T-TT-GDR_2008_002Rev5_en%20
Preliminary%20Draft%20Expl%20Rep%20ECTT.pdf.
33
on protecting the role of the media in democracy in the context of media concentration,
and
“has been further elaborated to include provisions by which Parties commit themselves to
promote and encourage media pluralism, including by promoting full transparency of
ownership and by encouraging broadcasters with a public service mission to play an active
role in the social cohesion of all members and communities of the society.”62
Article 12 on media pluralism and diversity of content will read:
“1. The Parties, in the spirit of co-operation and mutual assistance which underlies this
Convention, shall endeavour to avoid that audiovisual media services provided by a media
service provider within their jurisdiction endanger media pluralism.
2. To this end Parties will promote full transparency of ownership of media service
providers.
3. Parties shall encourage broadcasters with a public service mission to play an active role
in promoting social cohesion and integrating all communities, social groups and
generations, including minority groups, young people, the elderly, underprivileged and
disadvantaged social categories, disabled persons, etc., while respecting their different
identities and needs. In this context, attention should be paid to the content created by and
for such groups, and to their access to, and presence and portrayal in programmes. Due
attention should also be paid to gender equality issues.”
The article thereby establishes for the first time concrete obligations and at the same
time concretises and outlines the remit of public service broadcasting in the context of
ensuring media pluralism.
Recently, the Ministers of States participating in the 1st Council of Europe Conference
of Ministers responsible for Media and New Communication Services, held in
Reykjavik on 28 and 29 May 2009, adopted a Political Declaration in which they stress
the importance of the public service media’s editorial independence and institutional
autonomy and reaffirm the importance of public service media in the context of a
democratic and pluralistic society.
“Public service media, having genuine editorial independence and institutional autonomy,
contribute to media diversity and help counterbalance the risk of misuse of power in a
situation of strong concentration of the media and new communication services. They are
therefore a fundamental component of the media landscape in our democratic societies.”63
The Ministers further adopted the Resolution “Towards a new notion of media” in
which they point out again that public service broadcasters enjoy genuine editorial
independence and institutional autonomy. In this context they express their support for
technology-neutral public service media, including public service broadcasting.64 They
62
Draft Explanatory Report to the revised ECTT, point 63.
63
Political Declaration of the Ministers of States participating in the 1st Council of Europe Conference
of Ministers responsible for Media and New Communication Services, held in Reykjavik on 28 and
29 May 2009, recital 4.
64
Resolution “Towards a new notion of media” of the Ministers of States participating in the 1st
Council of Europe Conference of Ministers responsible for Media and New Communication
Services, held in Reykjavik on 28 and 29 May 2009, recital 12, paragraph 3.
34
furthermore adopted an Action Plan regarding the next steps in order to achieve the
objectives stipulated in the Political Declaration and the Resolution.
The Action Plan is explicitly backed up by Recommendation 1878 (2009) on the
funding of public service broadcasting of the Parliamentary Assembly of the Council of
Europe which was adopted on 25 June 2009. In the Recommendation the Assembly reemphasises the important role of public service broadcasting for social progress, for the
public interest in democratic processes, intercultural understanding and societal
integration and to meet the needs of individuals and society as a whole with regard to
information, education and culture. The Assembly also reaffirms the demand for the
participation of public service broadcasters in new media services.
It further requests the Member States - parliaments and ministers - to ensure that their
public service broadcasters have a
“clear mission and adequate long-term funding possibilities for fulfilling this mission in
accordance with the Resolution on the future of public service broadcasting of the 4th
European Ministerial Conference on Mass Media Policy (Prague, 1994)”65
as well as
“a sustainable structure of their public service broadcasters, which provides for adequate
safeguards for their editorial and managerial independence in accordance with the
Committee of Ministers’ Recommendation Rec(1996)10 on the guarantee of the
independence of public service broadcasting;”.66
The Recommendation re-emphasises the statements and demands of earlier
Recommendations and Resolutions and can be summarised as follows:
•
Public service broadcasting has an essential role in a democratic society resulting in
a public service mission, i.e. to provide for a comprehensive wide-range programme
service comprising information, education, culture and entertainment which is
accessible to all members of the public and - where appropriate - additional
programme services such as thematic services and to serve also minority viewers
and people with special needs.
•
Their important role and their mission also requires them to make use of new
technologies and offer new additional services including interactive and on-demand
media services on all available platforms so as to reach all audiences, and in
particular young people.
•
During the digital switch-over and after the switch-off of analogue radiofrequencies, Member States must ensure that public service broadcasters are
allocated adequate radio-frequency spectrum.
•
Public service broadcasters’ editorial and managerial independence from
governmental and political interference is a main reason and at the same time an
65
Recommendation 1878 (2009) on the funding of public service broadcasting, point 16.1.
66
Recommendation 1878 (2009) on the funding of public service broadcasting, point 16.2.
35
important condition for the entrustment of public service broadcasting with a certain
mission which therefore has to be guaranteed.
•
2.
To enable them to fulfil their mission, Member States and their regulatory bodies
have to provide for an adequate funding (system or model).
Summary
The Council of Europe outlines the close connection between the concepts of
democracy, human rights, the free circulation of information and the free expression of
opinions, a pluralist and diverse media order and the concept for, and existence of,
public service broadcasting.
It assigns to public service broadcasting a special remit to ensure pluralism and to
contribute to culture, outlines the importance of public service broadcasters’
independence and expresses its demand for participation by public service broadcasters
in new media services:
a) Pluralism
The Committee of Ministers’ Recommendation No. R (99) 1 on measures to promote
media pluralism and the Parliamentary Assembly’s Recommendation 1407 (1999) on
media and democratic culture stress the function of public service broadcasting to
reflect different political and cultural views, to provide a benchmark of quality and to
offer to a wide public and also in consideration of minoritie’s interests a pluralistic,
innovative, impartial and varied programming catering for the needs of all groups in
society. The Council of Europe thereby assigns the public service broadcasting an
essential role for the diversity of opinions and political and cultural pluralism. This is
also confirmed by the Parliamentary Assembly’s Recommendation 1878 (2009) on the
funding of public service broadcasting in which it qualifies public service broadcasting
as a public source of unbiased information and diverse political opinions and stipulates
the possibility and obligation to also serve minority viewers and people with special
needs.
b) Culture
By means of the Prague Resolution as well as in the Committee of Ministers’
Recommendation No. R (97) 21 on the media and the promotion of a culture of
tolerance and the Parliamentary Assembly’s Recommendation 1407 (1999) on media
and democratic culture and Recommendation 1878 (2009) on the funding of public
service broadcasting the Council of Europe underlines the contribution of public service
broadcasting to culture. Both institutions assign public service broadcasting the remit to
reflect cultural diversity and to contribute to the diversity of national and European
cultural heritage and stress the element of social cohesion which is represented by
public service broadcasting They refer to the important role of public service
broadcasting in promoting a culture of tolerance and understanding and to promote
community relations in pluriethnic and multicultural societies.
36
c) Independence and Funding
The principles on the independence of public service broadcasting are pointed out by
the Council of Europe in the Committee of Minister’s Recommendation No. R (96) 10
on the independence of public service broadcasting as well as in the Parliamentary
Assembly’s Recommendation 1641 (2004) on public service broadcasting and backed
up in its Recommendation 1855 (2009) on the regulation of audio-visual media when in
particular the independence of national regulators for the audio-visual media sector
from undue party political, governmental or commercial influences, to preserve the
principle of public service broadcasting in the changing media environment, is
demanded. Also the Ministers of States participating in the Council of Europe
Conference of Ministers responsible for Media and New Communication Services stress
out the importance of public service media’s editorial independence and institutional
autonomy in their Political Declaration and Resolution „Towards a new notion of
media“, adopted at the Conference. The public service broadcasters’ editorial and
managerial independence (from governmental and political interference) as a main
reason and at the same time as an important condition for the entrustment of public
service broadcasting with a certain mission is also expressly outlined in the
Parliamentary Assembly’s Recommendation 1878 (2009) on the funding of public
service broadcasting which also confirms that the principle of independence and the
fulfilment of the mission requires adequate funding of public service broadcasters.
d) New media services
The Committee of Ministers of the Council of Europe in Recommendation No. R (96)
10 on the independence of public service broadcasting, in Recommendation (2003) 9 on
measures to promote democratic and social contribution of digital broadcasting and in
Recommendation Rec (2007) 3 on the remit of public service media in the information
society as well as the Parliamentary Assembly of the Council of Europe in
Recommendation 1641 (2004) on public service broadcasting, Recommendation 1855
(2009) on the regulation of audio-visual media and in Recommendation 1878 (2009) on
the funding of public service broadcasting ask the States to maintain public service
broadcasting also against the background of new communication technologies and to
provide the required economic and legal conditions to enable the public service
broadcasters to make use of new media services which they consider necessary for them
to fulfil their remit.
IV. Jurisprudence of the Courts of the European Communities
1.
Introduction
The European Community (EC) is not (yet) a party to the Council of Europe; nor has it
acceded to the ECHR. However, according to the constant jurisprudence of the
European Court of Justice (ECJ) the general principles of law and in particular the
fundamental rights - in which it includes the ECHR guarantees - are part of the aquis
37
communautaire and have to be taken into account when interpreting Community law.
This is confirmed by Article 6 EU Treaty.
Accordingly, the ECJ stated in its judgment of 26 June 1997 (Vereinigte Familiapress
Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag)67 that, while a
restriction on free movement of goods may be justified with overriding requirements
under Article 30 EEC Treaty, - such as maintaining press diversity -,
“such justification must also be interpreted in the light of the general principles of law and
in particular of fundamental rights.”
In the case in question it was the freedom of expression, as enshrined in Article 10
ECHR, which was concerned, as the legislation prohibited the sale on the Member
States territory of periodicals containing games or competitions for prizes.
The ECJ thereby recognised the system of Article 10 ECHR by stating that the
prohibition detracts from the freedom of expression but that Article 10 does permit
derogations for the purposes of maintaining press diversity, in so far as they are
prescribed by law and necessary in a democratic society.
“Maintenance of press diversity may constitute an overriding requirement justifying a
restriction on free movement of goods. Such diversity helps to safeguard freedom of
expression, as protected by Article 10 of the European Convention on Human Rights and
Fundamental Freedoms, which is one of the fundamental rights guaranteed by the
Community legal order.”68
While this judgment concerned a derogation from the free movement of goods and the
interpretation of Article 30 EEC Treaty in the light of Article 10 ECHR, the ECJ
clarified in its judgment of 30 April 1974 in the case of Giuseppe Sacchi 69 that
“the transmission of television signals including those in the nature of advertisements
comes, as such, within the rules of the treaty relating to services.”70
Through the classification of broadcasting as a service within the meaning of the Treaty
the freedom to provide cross-border broadcasts became a fait accompli in the
Community and Article 10 ECHR was rather used to justify a derogation of the freedom
of services, the argument being that from Article 10 there results a positive obligation to
protect pluralism in democracy by organising the market of broadcasting in a particular
way71.
67
ECJ, Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich
Bauer Verlag, [1997] ECR, p. I-3689.
68
ECJ, Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich
Bauer Verlag, op. cit., § 18 referring to Case C-353/89, Commission v Netherlands, [1991] ECR, p.
I-4069, § 30, and Case C-148/91, Vereiniging Veronica Omroep Organisatie v Commissariaat voor
de Media, [1993] ECR, p. I-487, § 10.
69
ECJ, Case 155/73, Giuseppe Sacchi, [1974] ECR, p. 409.
70
ECJ, Case 155/73, Giuseppe Sacchi, op. cit., § 6.
71
Egbert Dommering, Comments on Article 10 ECHR, in: Castendyk/Dommering/Scheuer, European
Media Law, Alphen a/d Rijn: Kluwer Law International, 2008, § 76.
38
2.
Article 10 ECHR and its importance for measures aimed at protecting
pluralism
In the Bond van Adverteerders case72 the ECJ did not explicitly answer the question of
the national court as to whether the principle of proportionality and the right of freedom
of expression guaranteed by Article 10 ECHR in themselves impose obligations on the
Member States (independently of the applicability of provisions of Community law). It
argued that a reply on the question was not necessary for the referring court to resolve
the dispute, since the ECJ already concluded that the Netherlands’ legislation relating to
advertising and the use of subtitles in Dutch, thereby governing access by cable to
television programmes from other Member States, is incompatible with the Community
rules on freedom to provide services.
First, the ECJ found a conflict with the freedom of services as protected by Article 59
(now Article 49) EEC Treaty. Secondly, the ECJ recognised the general possibility to
justify a derogation on grounds of public policy, namely the maintenance of the noncommercial and, hence, pluralistic nature of the national broadcasting system. However,
as in the case in question only foreign broadcasters were subject to the restrictions, the
Court held that such discriminatory restrictions cannot fall within the derogations
authorised by Article 56 (now it would be Article 55 in connection with Article 46
paragraph 1) EEC Treaty since they are not proportionate to the intended objective.
The argument that Article 10 ECHR implies a positive obligation to protect pluralism in
democracy by organising the market of broadcasting in a particular way did not succeed
in the Collectieve Antennevoorziening Gouda (Mediawet I) case73, which was about a
Dutch provision designed to permit advertising from abroad that was targeted at the
Netherlands, only on condition that the foreign organisation was based on the same
modalities as the Dutch one.
The Court first concluded that the rules relating to the structure of the broadcasters,
(which obliged the broadcasting bodies: (1) to entrust advertising to a legal person
independent of the suppliers of programmes; (2) to use all their advertising revenue for
the production of programmes; (3) not to permit third parties to make a profit; as well as
(4) the conditions relating to the advertisements themselves) constitute restrictions on
the freedom to provide services covered by Article 59 (now Article 49) of the EEC
Treaty.
Secondly, the Court recognised the possibility of justifying those restrictions with the
objective to maintain pluralism as a general interest protected by Article 10 ECHR:
“a cultural policy understood in that sense may indeed constitute an overriding requirement
relating to the general interest which justifies a restriction on the freedom to provide
services. The maintenance of the pluralism which that Dutch policy seeks to safeguard is
connected with freedom of expression, as protected by Article 10 of the European
72
ECJ, Case 352/85, Bond van Adverteerders and others v The Netherlands State, [1988] ECR,
p. 2085.
73
ECJ, Case C-288/89, Gouda v. Commissariaat voor de Media, [1991] ECR, p. I-4007, see also Case
C-353/89, Commission v. Netherlands, [1991] ECR, p. I-4069.
39
Convention on Human Rights and Fundamental Freedoms, which is one of the
fundamental rights guaranteed by the Community legal order.”74
However, in the case in question the ECJ did not hold the restriction regarding the
conditions relating to the structure of broadcasting bodies established in other Member
States to be objectively necessary in order to safeguard the general interest of
maintaining a national radio and television system which secures pluralism. It added:
“In order to secure the pluralism which it wishes to maintain the Netherlands Government
may very well confine itself to formulating the statutes of its own bodies in an appropriate
manner.”75
In respect to the conditions relating to advertising, the ECJ recognised that in principle
they could be justified by overriding reasons relating to the general interest, such as the
protection of the consumer against excessive advertising or, as an objective of cultural
policy, the maintenance of a certain level of programme quality.
Still, in the case in question the ECJ decided that the rules at issue restrict the
competition to which the advertising foundation may be exposed in that market from
foreign broadcasting bodies and thereby protect the revenue of the advertising income
which cannot, since they are based on purely economic considerations, justify
restrictions on the freedom to provide services.76
In another case in 199177 the Court again was asked explicitly (by a Greek Court)
whether the freedom of expression secured by Article 10 ECHR and the social objective
of the EEC Treaty, set out in its preamble and in Article 278, impose per se obligations
on the Member States (independently of the written provisions of Community law in
force), and, if so, what those obligations are.
The ECJ stated that it has no power to examine the compatibility with the European
Convention on Human Rights of national rules which do not fall within the scope of
Community law. Thus, it did not decide explicitly on the aforementioned question. But
it pointed out again that the fundamental rights form an integral part of the general
74
ECJ, Case C-288/89, Gouda v. Commissariaat voor de Media, [1991] ECR, p. I-4007, §§ 23-25
referring to Case 4/73, Nold v Commission, [1974] ECR, p. 491, § 13, see also Case C-353/89,
Commission v. Netherlands, [1991] ECR, p. I-4069, § 30, referring to Case 4/73, Nold v
Commission, [1974] ECR, p. 491, § 13.
75
ECJ, Case C-288/89, Gouda v. Commissariaat voor de Media, [1991] ECR, p. I-4007, §§ 24, 25.
76
The ECJ decided that the rules did not reserve to the “Stichting Etherreclame” (Dutch television
advertising foundation) all the revenue from advertising intended specifically for the Dutch public as
did the rules in the Bond van Adverteerders case. The ECJ argued that, nevertheless, the result and
objective was the same: to protect the revenue of the advertising which cannot justify restrictions on
the freedom to provide services.
77
ECJ, Case C-260/89, Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon
Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and
other, [ECR] 1991, p. I-2925.
78
The constant improvement of the living conditions of the peoples of Europe and the rapid raising of
their standard of living.
40
principles of law and that the ECHR is of special significance in that respect.79 The ECJ
states that the Community cannot accept measures which are incompatible with the
observance of human rights thus recognised and guaranteed.80 It therefore replied to the
question with the statement that
“the limitations imposed on the power of the Member States to apply the provisions
referred to in Articles 66 and 56 of the Treaty on grounds of public policy, public security
and public health must be appraised in the light of the general principle of freedom of
expression embodied in Article 10 of the European Convention on Human Rights.”81
The ECJ confirmed those statements in its judgment of 5 October 1994 in the TV10 SA
v. Commissariaat voor de Media.case82, in which it had to answer the question of the
Dutch court Raad van State whether certain regulations jeopardise the right to freedom
of expression as guaranteed by Article 10 ECHR (or violate Article 14 ECHR, which
prohibits discrimination with reference to the rights and freedoms it guarantees).83
The ECJ re-emphasises that the fundamental rights, including those guaranteed by the
European Convention on Human Rights, form an integral part of the general principles
of law, the observance of which is ensured by the Court. It further refers to its statement
in the judgment of 25 July 199184 when recognising the general possibility to justify
restrictions on the freedom of services on grounds of the maintenance of pluralism, the
diversity of opinions and hence the freedom of expression guaranteed by Article 10
ECHR:
“The maintenance of the pluralism which the Netherlands broadcasting policy seeks to
safeguard is intended to preserve the diversity of opinions, and hence freedom of
79
ECJ, Case C-260/89, Elliniki Radiophonia Tiléorassi AE (ERT) and Panellinia Omospondia
Syllogon Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas
and other, op. cit., § 41 referring to Case 222/84, Johnston v Chief Constable of the Royal Ulster
Constabulary, [1986] ECR, p. 1651, § 18.
80
and other, op. cit., § 41 referring to Case 5/88, Wachauf v Federal Republic of Germany, [1989]
ECR, p. 2609, § 19.
81
and other, op. cit., § 45.
82
ECJ, Case C-23/93, TV10 SA v Commissariaat voor de Media, [1994] ECR, p. I-4795.
83
The regulation prescribed that air time for radio and television programmes on the national network
is to be allocated to broadcasting associations by the Commissariaat voor de Media, that
broadcasting associations are associations of listeners or viewers having legal personality,
established to represent a particular social, cultural, religious or philosophical persuasion set out in
their statutes, that they must provide a varied programme and further provide for a method of
financing intended to maintain the pluralist and non-commercial character of domestic broadcasting
associations. The ECJ answered that the Treaty provisions on freedom to provide services allow a
Member State to treat a foreign broadcaster as a domestic broadcaster, if it was established in
another Member State with the purpose of avoiding the rules which would be applicable to it if it
were established within the first Member State.
84
ECJ, Case C-288/89, Gouda v. Commissariaat voor de Media, op. cit., and Case C-353/89,
Commission v. Netherlands, op. cit.
41
expression, which is precisely what the European Convention on Human Rights is
designed to protect.”85
Also in its judgment of 23 October 2003 in the case RTL v. the Niedersächsische
Landesmedienanstalt für privaten Rundfunk86 regarding regulation on advertising breaks
in audio-visual works such as feature films and films made for television - namely a
single advertising break per period of 45 minutes with an additional break if the
programme’s duration is at least 20 minutes longer than two or more complete periods
of 45 minutes - the ECJ stated that the regulation may restrict freedom of expression as
enshrined in Article 10 § 1 of the ECHR, but that it appears to be justified under Article
10 § 2 of the ECHR. The ECJ thereby refers to the aforementioned Collectieve
Antennevoorziening Gouda case and re-emphasises the statement that the protection of
consumers against abuses of advertising or, as an aim of cultural policy, the
maintenance of a certain level of programme quality are objectives which may justify
restrictions by the Member States on the freedom to provide services in relation to
television advertising. The argument led the Court in the present case to the conclusion
that the restrictions are not contrary to fundamental rights.
In its judgment of 13 December 200787 regarding ‘must-carry’ obligations which require
cable operators to broadcast television programmes transmitted by certain broadcasters,
the ECJ again confirms that
“a cultural policy may constitute an overriding requirement relating to the general interest
which justifies a restriction on the freedom to provide services”
and stresses that
“the maintenance of the pluralism which that policy seeks to safeguard is connected with
freedom of expression, as protected by Article 10 of the European Convention on Human
Rights and Fundamental Freedoms.”88
In the present case the ECJ further assigns the legislation the aim of preserving the
pluralistic programme offer in the bilingual region of Brussels-Capital in order to
safeguard “the freedom of expression of the different social, cultural, religious,
philosophical or linguistic components which exist in that region”89 which basically
represents a legitimate aim to justify a restriction on Article 49 EC Treaty.
85
ECJ, Case C-23/93, TV10 SA v Commissariaat voor de Media, op. cit., § 25.
86
ECJ, Case C-245/01, RTL v. the Niedersächsische Landesmedienanstalt für privaten Rundfunk,
[2003] ECR, p. I-12489.
87
ECJ, Case C-250/06, United Pan-Europe Communications Belgium SA and Others v Belgian State,
[2007] ECR, p. I-11135.
88
op. cit., § 41.
89
op. cit., § 42.
42
The ECJ confirms the possibility of justifying restrictions in order to guarantee the
maintenance of pluralism also in its judgment of 22 December 200890 (Kabel
Deutschland v. NLM) in a preliminary ruling regarding ‘must carry’ obligations, when
stressing that
“the maintenance of the pluralism which the legislation in question seeks to guarantee is
connected with freedom of expression, as protected by Article 10 of the European
Convention on Human Rights and Fundamental Freedoms, which freedom is one of the
fundamental rights guaranteed by the Community legal order.”91
The ECJ further clarifies that the aim of guaranteeing a pluralistic and diverse
programme offer represents a legitimate aim also if it refers to the maintenance of
pluralism on a single transmission platform, i.e. in the present case transmission via
cable.
In its judgment of 5 March 2009 in the case of Unión de Televisiones Comerciales
Asociadas (UTECA) v Administración General del Estado92 - regarding an obligation on
television operators to earmark a certain percentage of their operating revenue for the
pre-funding of European films and to reserve 60% of that funding for the production of
works of which the original language is one of the official languages of the Kingdom of
Spain and of which the majority is produced by the Spanish film industry - the ECJ
further confirms the possibility to justify a restriction on fundamental freedoms
guaranteed by the Treaty with the objective to defend Spanish multilingualism. The ECJ
refers to earlier judgments in which it already accepted that
“the objective, pursued by a Member State, of defending and promoting one or several of
its official languages constitutes an overriding reason in the public interest.”93
An obligation to invest in films in which the original language is one of the official
languages of that Member State appears appropriate to ensure that such an objective is
achieved.94 The ECJ thereby confirms that the aim of a Member State to defend or
promote its official language(s) represents an overriding reason in the public interest.
90
ECJ, judgment of 22 December 2008, Case C-336/07, Kabel Deutschland Vertrieb und Service
GmbH & Co. KG v Niedersächsische Landesmedienanstalt für privaten Rundfunk, nyr.
91
ECJ, Case C-336/07, Kabel Deutschland Vertrieb und Service GmbH & Co. KG v Niedersächsische
Landesmedienanstalt für privaten Rundfunk, op. cit., § 37 refering to Case C-288/89, Collectieve
Antennevoorziening Gouda, op. cit., § 23; Case C-148/91, Veronica Omroep Organisatie, op. cit., §
10; Case C-23/93, TV10, op. cit., § 19; and Case C-250/06, United Pan-Europe Communications
Belgium and Others, [2007] ECR, p. I-11135, § 41.
92
ECJ, judgment of 5 March 2009, Case C-222/07, Unión de Televisiones Comerciales Asociadas
(UTECA) v Administración General del Estado, nyr.
93
ECJ, Case C-222/07, Unión de Televisiones Comerciales Asociadas (UTECA) v Administración
General del Estado, op. cit., § 27 referring to Case C-379/87, Groener, [1989] ECR, p. 3967, § 19,
and Case C-250/06, United Pan-Europe Communications Belgium and Others, op. cit., § 43.
94
ECJ, Case C-222/07, Unión de Televisiones Comerciales Asociadas (UTECA) v Administración
General del Estado, op. cit., § 29.
43
3.
Admissibility of actions/the direct and individual concern for the purposes of
Article 230 EC
The Court of First Instance (CFI) clarified in its judgment of 30 September 2003 in the
case ARD v Commission95 regarding the compatibility of a merger - in the case at hand
the acquisition by BSkyB of joint control together with Kirch Vermögensverwaltungs
GmbH & Co. KG (KVV) of the undertaking KirchPayTV - with the common market that
ARD as a national association of public service broadcasting corporations is directly and
individually concerned by the approval of the merger by the Commission and the action
is therefore deemed admissible:
“It follows from all of the foregoing considerations that, through its specific participation
in the administrative procedure, during which the applicant submitted comments which
partly determined the content of the contested decision and the nature of the commitments,
and the specific effect on its position in the markets in digital television, digital interactive
television services, technical services for digital television and the acquisition of
broadcasting rights, the applicant is directly and individually concerned by the contested
decision. Accordingly, the action is admissible.”96
4.
Remit and Supervision
In the context of (recent) proceedings regarding the funding of public service
broadcasting by Member States and its compatibility with EC competition law the ECJ
and the CFI examined the issue of the remit and the supervision of public service
broadcasting.
First, it is remarkable that the ECJ did not exclude the Member States’ right to establish
a broadcasting monopoly in favour of the public service broadcasting. In the Sacchi
case97 in 1974 the Court stated that the existence of a monopoly also with regard to
television advertising is not in itself contrary to the principle of free movement of
goods, which can be advertised through television spots, on condition that no
discrimination is created between domestic products and imported products to the
detriment of the latter. The Court confirms this statement in the ERT case98 of 1991
when observing that
“Community law does not preclude the granting of a television monopoly for
considerations of a non-economic nature relating to the public interest. However, the
manner in which such a monopoly is organised and exercised must not infringe the
95
CFI, Case T-158/00, Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der
Bundesrepublik Deutschland (ARD) v Commission of the European Communities, [2003] ECR, p.
II-3825.
96
CFI, Case T-158/00, Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der
Bundesrepublik Deutschland (ARD) v Commission of the European Communities, op. cit., § 95.
97
ECJ, Case 155/73, Giuseppe Sacchi, op. cit.
98
other, op. cit.
44
provisions of the Treaty on the free movement of goods and services or the rules on
competition.”99
Also with respect to the rules on competition the Court states that they do not prohibit
monopolies as such, but abusive behaviour. With regard to the granting of exclusive
rights by the Member States the Court emphasised that:
“Article 90(1) of the Treaty prohibits the granting of an exclusive right to transmit and an
exclusive right to retransmit television broadcasts to a single undertaking, where those
rights are liable to create a situation in which that undertaking is led to infringe Article 86
by virtue of a discriminatory broadcasting policy which favours its own programmes,
unless the application of Article 86 obstructs the performance of the particular tasks
entrusted to it.”100
While it may seem questionable at first sight, against the background that the European
Court of Human Rights in 1994 found a violation of Article 10 ECHR by the Austrian
public broadcasting monopoly arguing that the latter would impose a far-reaching
restriction on the freedom of expression which is not justified by a pressing need,101
whether the Community courts would still judge the same way as did the ECJ in 1991, it
is nevertheless to be noted that the CFI referred, in its judgment in the SIC case (see
infra at b)), to the above cited statement made by the ECJ in the Sacchi case on the
legitimacy of a public monopoly, without making any further qualification.
a)
TV2 Danmark
The CFI acknowledged in its judgment TV2 Danmark of 22 October 2008102 the
Member States’ wide margin of appreciation in the definition of a service as a service of
general economic interest (SGEI) and their freedom to decide how to finance these
services:
“[...] the power of the Member States to define broadcasting SGEIs in broad and
qualitative terms, so as to cover the broadcasting of a wide range of programmes, cannot
be disputed; nor can the Member States’ freedom to use advertising revenue to finance
such SGEIs.”103.
With regard to the right of Member States to classify full-spectrum television
programmes as SGEIs the Court refers to the Amsterdam Protocol104, which stipulates
99
other, op. cit., headnote no. 1.
100
other, op. cit., headnote no. 4.
101
Informationsverein Lentia and others v. Austria, judgment of 24 November 1993, Series A No. 276.
102
CFI, judgment of 22 October 2008, Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04, TV 2
Danmark A/S and Others v Commission of the European Communities, nyr.
103
CFI, Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04, TV 2/Danmark A/S and Others v
Commission of the European Communities, op. cit., § 113.
104
The Protocol on the system of public broadcasting in the Member States (OJ 1997 C 340, p. 109,
‘the Amsterdam Protocol’), introduced by the Treaty of Amsterdam and annexed to the EC-Treaty.
45
that
“the system of public broadcasting in the Member States is directly related to the
democratic, social and cultural needs of each society and to the need to preserve media
pluralism”.
Further the Court refers to the Council’s and the Member States’ Resolution of 25
January 1999 concerning public service broadcasting, which reaffirms the importance
of broadcasting SGEIs and states
“that public service broadcasting in view of its cultural, social and democratic functions
which it discharges for the common good, has a vital significance for ensuring democracy,
pluralism, social cohesion, cultural and linguistic diversity”105
and that
“in accordance with its remit as defined by the Member States in order to address society
as a whole; in this context it is legitimate for public service broadcasting to seek to reach
wide audiences.”106
It concludes that the Danish definition of the remit of public service broadcasting fulfils
the requirement under Article 86§ 2 EC Treaty concerning the definition of SGEIs.
Referring to the argument of the European Broadcasting Union (EBU) - intervener in
support of the Commission - the CFI stressed that this conclusion is also justified by the
need to guarantee the public service broadcaster’s editorial independence from public
authorities in the choice of its actual programmes, as the latter is protected by the
freedom of expression guaranteed by Article 11 of the Charter of Fundamental Rights of
the European Union and Article 10 ECHR.107
b)
SIC v. Commission
Also in the judgment of the Court of 26 June 2008108 regarding measures by the
Portuguese Republic for the public service broadcaster RTP in order to finance its
105
Resolution of the Council and of the Member States of 25 January 1999 concerning broadcasting
(OJ 1999 C 30), recital B of the resolution.
106
Resolution of the Council and of the Member States of 25 January 1999 concerning broadcasting,
op. cit., point 7 of the resolution. § 106 of the judgment in the TV2 Danmark case reads:
“In that resolution, Member States, ‘considering the fact that public service broadcasting, in view of
its cultural, social and democratic functions which it discharges for the common good, has a vital
significance for ensuring democracy, pluralism, social cohesion, cultural and linguistic diversity; ...
stressing that the increased diversification of the programmes on offer in the new media
environment reinforces the importance of the comprehensive mission of public service broadcasters;
[and] recalling the affirmation of competence of the Member States concerning remit and funding
set out in the [Amsterdam Protocol]’ noted and reaffirmed that that protocol confirms their ‘will ...
to stress the role of public service broadcasting’ and that ‘public service broadcasting must be able
to continue to provide a wide range of programming in accordance with its remit as defined by the
Member States in order to address society as a whole’ and that ‘in this context it is legitimate for
public service broadcasting to seek to reach wide audiences’.”
107
CFI, Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04, TV 2 Danmark A/S and Others v
108
CFI, judgment of 26 June 2008, Case T-442/03, SIC - Sociedade Independente de Comunicação, SA
v Commission of the European Communities, nyr.
46
public service remit the CFI refers to the Amsterdam Protocol and to the Resolution of
the Council and of the Member States of 25 January 1999 concerning public service
broadcasting, and comes to the same conclusion as in the TV2 Danmark case, i.e. that
“Community law in no way precludes a Member State from defining broadcasting SGEIs
widely to include the broadcasting of full-spectrum programming. That possibility cannot
be called into question by the fact that the public service broadcaster carries on, in
addition, commercial activities, in particular the sale of advertising space.”109
The Court of First Instance further says that State aid is compatible with the EC Treaty
provided that the qualitative requirements set out in the public service remit are
complied with. The Court emphasises that only the Member State has the power to
assess the public service broadcaster’s fulfilment of the remit, and confines itself to
finding in the case in question that there is a mechanism for monitoring by an
independent body.110
5.
Summary
The ECJ acknowledges freedom of expression as one of the fundamental principles of a
democratic society. The aforementioned State aid procedures provided the Court with
an opportunity to acknowledge the important role of public service broadcasting in view
of its cultural, social and democratic functions and its vital significance for ensuring
democracy, pluralism, social cohesion, cultural and linguistic diversity.
The ECJ further derives from the freedom of expression guaranteed by Article 10
ECHR the possibility to justify a restriction on the fundamental freedoms of the EC
Treaty, namely the free movement of goods and services, with the legitimate objective
of maintaining pluralism and preserving diversity of opinions. In the conclusion of the
judgments it also can be noted that the ECJ guarantees the protection of freedom of
expression within the fundamental freedoms of the EC Treaty, i.e. the free movement of
goods and the free provision of services. The ECJ includes the principles connected to
freedom of expression in its appreciation of values in the context of its judgments
regarding obstacles to the EC Treaty freedoms. The ECJ is relying on the ECtHR
jurisprudence, but remains quite reserved in the interpretation of Article 10 ECHR when
it comes to a possible positive obligation on Member States resulting from Article 10
ECHR.
This conclusion corresponds to the view expressed by Advocate General Ruiz-Rarabo
Colomer in his opinion on the Case of François de Coster v. Collège des Bourgmestre
et Echevins de Watermael-Boitsfort111, when he states that the principle of the freedom
of services is a specific manifestation in Community law of the freedom of expression
109
CFI, Case T-442/03, SIC - Sociedade Independente de Comunicação, SA v Commission of the
European Communities, op. cit., §§ 201, 202.
110
CFI, Case T-442/03, SIC - Sociedade Independente de Comunicação, SA v Commission of the
European Communities, op. cit., §§ 211-213.
111
Opinion of Advocate General Ruiz-Jarabo Colomer, delivered on 28 June 2001, Case C-17/00
François de Coster v Collège des Bourgmestre et Echevins de Watermael-Boitsfort, [2001] ECR,
p. I-9445.
47
as guaranteed by Article 10 ECHR and refers to recital 8 of the Council Directive
89/552/EEC which stipulates:
“Whereas this right as applied to the broadcasting and distribution of television services is
also a specific manifestation in Community law of a more general principle, namely the
freedom of expression as enshrined in Article 10 (1) of the Convention for the Protection
of Human Rights and Fundamental Freedoms ratified by all Member States; whereas for
this reason the issuing of directives on the broadcasting and distribution of television
programmes must ensure their free movement in the light of the said Article and subject
only to the limits set by paragraph 2 of that Article and by Article 56 (1) of the Treaty.”112
As a consequence the Advocate General does not hold it necessary to examine the
national legislation in question in the light of Article 10 ECHR, but rather in the light of
Article 49 of the EC Treaty.
Also of relevance here is the opinion in the Centro Europa 7 Srl case113 regarding Italian
legislation, which allows network operators in breach of the limits laid down by media
concentration law to continue to operate. Thereby, other operators were excluded from
entry into the market: several years ago they obtained national broadcasting licences in
a public tender procedure, but the radio frequencies necessary to exercise those rights
were never assigned to them. Advocate General Poiares Maduro stresses that the
relevance of the question (asked by the National Court), whether Article 10 ECHR, as
referred to in Article 6 of the EU Treaty, requires the Member States to secure pluralism
and competition in the sector (based on an antitrust system which, in step with
technological developments, secures network access and a multiplicity of operators and
renders duopolistic market behaviour unlawful) is auxiliary to the issue of whether there
has been a restriction on free movement.114
He comes to this conclusion by consideration of the fact that the ECJ has to examine
whether Member States provide the necessary level of protection in relation to
fundamental rights in order to be able adequately to fulfil their other obligations as
members of the Union. In this context he stresses the principle of pluralism resulting
from the freedom of expression guaranteed by Article 10 ECHR and states that it is being a fundamental right - intrinsic in the EU legal order. The Advocate General
concludes that
112
Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid
down by Law, Regulation or Administrative Action in Member States concerning the pursuit of
television broadcasting activities, Official Journal L 298,17/10/1989, p. 23-30, Recital 8.
113
Opinion of Advocate General Poiares Maduro delivered on 12 September 2007, Case C-380/05
Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le Garanzie nelle
Comunicazioni and Direzione Generale Autorizzazioni e Concessioni Ministero delle
Comunicazioni, [2008] ECR, p. I-349.
114
Comunicazioni, op. cit., § 23.
48
“accordingly, the application of Community law in the area of national broadcasting
services is guided by the principle of pluralism and, moreover, assumes special
significance where it strengthens the protection of that principle.”115
V.
Primary and secondary law of the European Union/Community
The Member States regulation in the area of public service broadcasting generally
concerns two provisions of the EC Treaty: Article 49 which guarantees the free
movement of services (with further guidance in Article 50-55 and exceptions in Articles
45-48 EC Treaty) and Articles 86, 87 et seq. EC Treaty which aim to prevent distortions
of competition.
Broadcasting is qualified as a service which is protected by Article 49 EC Treaty, but according to Article 55 in connection with Article 46 EC Treaty - a restriction may be
justified on grounds of public policy, public security or public health or - according to
the ECJ’s constant jurisprudence - with compelling reasons of public interest.
In the context of the funding of public service broadcasting Article 87 paragraph 1 EC
Treaty is of major importance as it stipulates with respect to State aid measures that
“Save as otherwise provided in this Treaty, any aid granted by a Member State or through
State resources in any form whatsoever which distorts or threatens to distort competition
by favouring certain undertakings or the production of certain goods shall, in so far as it
affects trade between Member States, be incompatible with the common market.”
Nevertheless, Article 86 §2 EC provides for a derogation from State aid rules if the
application of competition rules entails the risk of obstructing the performance of
SGEIs:
“Undertakings entrusted with the operation of services of general economic interest or
having the character of a revenue-producing monopoly shall be subject to the rules
contained in this Treaty, in particular to the rules on competition, in so far as the
application of such rules does not obstruct the performance, in law or in fact, of the
particular tasks assigned to them. The development of trade must not be affected to such an
extent as would be contrary to the interests of the Community.”
The European Courts and the Commission have always regarded public service
broadcasting as a service of general economic interest, and assessed its compatibility
with Article 86 §2 of the EC Treaty. For that provision to be applied, the public service
broadcasters in question must be explicitly entrusted by the Member State with the
provision of an SGEI, and the ban on State aid must obstruct the performance of the
particular tasks assigned to the undertaking.
115
Comunicazioni, op. cit., § 39.
49
For the European Court’s application and interpretation of those provisions in the area
of broadcasting further primary and secondary law and other legal acts of the European
Community’s institutions are of importance, as demonstrated below.
1.
The Amsterdam Protocol on the system of public broadcasting
The interpretative Protocol on the system of public broadcasting in the Member States116
introduced by the Treaty of Amsterdam and annexed to the EC Treaty states
“that the system of public broadcasting in the Member States is directly related to the
pluralism”
It confirms the Member States competence to define the remit of public service
organisations and provide for their funding in order to enable them to fulfil their
remit:117
“The provisions of the Treaty establishing the European Community shall be without
prejudice to the competence of Member States to provide for the funding of public service
broadcasting insofar as such funding is granted to broadcasting organisations for the
fulfilment of the public service remit as conferred, defined and organised by each Member
State, and insofar as such funding does not affect trading conditions and competition in the
Community to an extent which would be contrary to the common interest, while the
realisation of the remit of that public service shall be taken into account.”
The specificity of public service broadcasting was also emphasised by the European
judiciary. In the SIC judgment, the CFI held that
“although the public service of broadcasting is considered to be an SGEI and not a service
of general non-economic interest, it must none the less be pointed out that that
classification as an SGEI is explained more by the de facto impact of public service
broadcasting on the otherwise competitive and commercial broadcasting sector, than by an
alleged commercial dimension to broadcasting.”
This is clear from the Amsterdam Protocol and the Resolution of the Council and of the
Member States of 25 January 1999 (point 153 of the judgment). The CFI added that
“that specific status for public service broadcasting is, moreover, the basis for the freedom
accorded by the Amsterdam Protocol to Member States in the award of broadcasting
SGEIs” (point 154 of the judgment).
116
Protocol on the system of public broadcasting in the Member States (OJ C 310).
117
“The provisions of the Treaty establishing the European Community shall be without prejudice to
the competence of Member States to provide for the funding of public service broadcasting insofar
as such funding is granted to broadcasting organisations for the fulfilment of the public service remit
as conferred, defined and organised by each Member State, and insofar as such funding does not
affect trading conditions and competition in the Community to an extent which would be contrary to
the common interest, while the realisation of the remit of that public service shall be taken into
account.”
50
2.
The Resolution of the Council and of the Member States
The Resolution of the Council and of the Member States of 25 January 1999 concerning
broadcasting118 re-emphasises the statements of the Protocol on the system of public
broadcasting regarding the Member States competence for defining the remit and the
funding of public service broadcasting. It reaffirms public service broadcasting’s
“cultural, social and democratic functions which it discharges for the common good”119
and its
“vital significance for ensuring democracy, pluralism, social cohesion, cultural and
linguistic diversity.”120
In the context of new media services the Resolution further stipulates
“that the increased diversification of the programmes on offer in the new media
environment reinforces the importance of the comprehensive mission of public service
broadcasters.”121
The Resolution expressly requires the involvement of public service broadcasting in
new media services when stating that
“the ability of public service broadcasting to offer quality programming and services to the
public must be maintained and enhanced, including the development and diversification of
activities in the digital age.”122
This requirement to participate in new media services is also confirmed by the notion
that
“the fulfilment of the public service broadcasting’s mission must continue to benefit from
technological progress.”123
and that
“public service broadcasting has an important role in bringing to the public the benefits of
the new audiovisual and information services and the new technologies.”124
118
Resolution of the Council and of the Representatives of the Governments of the Member States,
meeting within the Council of 25 January 1999 concerning public service broadcasting (OJ C 030).
119
Resolution of the Council and of the Member States, op. cit., recital B.
120
Resolution of the Council and of the Member States, op. cit., recital B.
121
Resolution of the Council and of the Member States, op. cit., recital C.
122
Resolution of the Council and of the Member States, op. cit., recital 6.
123
124
51
3.
The Audiovisual Media Services Directive
The Audiovisual Media Services Directive (2007/65/EC)125 confirms that
“[t]he co-existence of private and public audiovisual media service providers is a feature
which distinguishes the European audiovisual media market.”126
The Directive further clarifies that audiovisual media services are as much of economic
as of cultural interest which justifies the application of specific rules to those services:
“Audiovisual media services are as much cultural services as they are economic services.
Their growing importance for societies, democracy - in particular by ensuring freedom of
information, diversity of opinion and media pluralism - education and culture justifies the
application of specific rules to these services.”127
The impact of audiovisual media services on the process of formation of opinion is
stressed by the Directive.128 Considering that all audiovisual media services, both
television broadcasting (i.e. linear audiovisual media services) and on-demand
audiovisual media services (i.e. non-linear audiovisual media services) are subject to the
Directive - and bearing in mind the aforementioned recitals, it can be concluded that the
Directive sees a wide scope of activity for public service broadcasting.129
4.
The Revised Commission Communication on the application of State aid
rules to public service broadcasting
The demand for the involvement of public service broadcasting in the area of new
media services is also expressively confirmed in the revised Communication from the
Commission on the application of State aid rules to public service broadcasting.130 The
text clarifies that
“[The] values of public broadcasting are equally important in the rapidly changing new media
environment.”131
125
Directive 2007/65/EC of the European Parliament and the Council of 11 December 2007 amending
Council Directive 89/552/EEC on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning the pursuit of television
broadcasting activities (OJ L 332).
126
Directive 2007/65/EC of the European Parliament and the Council of 11 December 2007, op. cit.,
recital 9.
127
Directive 2007/65/EC of the European Parliament and the Council of 11 December 2007, op. cit.,
recital 3.
128
See recital 43 of Directive 2007/65/EC of the European Parliament and the Council of 11 December
2007, op. cit.
129
Recitals 9, 3 and 43 of Directive 2007/65/EC, op. cit.
130
Available
at:
http://ec.europa.eu/competition/consultations/2009_broadcasting_review/
broadcasting_review_en.pdf
131
Communication from the Commission on the application of State aid rules to public service
broadcasting of 2 July 2009, Point 14.
52
“public service broadcasters should be able to use the opportunities offered by digitisation
and the diversification of distribution platforms on a technology neutral basis, to the
benefit of society. In order to guarantee the fundamental role of public service broadcasters
in the new digital environment, public service broadcasters may use State aid to provide
audiovisual services over new distribution platforms, catering for the general public as well
as for special interests […]”.132
5.
Summary
The principle of pluralism and the essential role of public service broadcasting in this
context are explicitly recognised by primary and secondary law of the European
Community which further manifests a comprehensive understanding of the mission of
public service broadcasters. The Commission, the Council as well as the Parliament
explicitly demand the public service broadcaster’s involvement in new media services
when stating that “the fulfilment of the mission of public service broadcasting requires
that it continue to benefit from technological progress”133 or that “public service
broadcasters should be able to use the opportunities offered by digitisation and the
diversification of distribution platforms on a technology neutral basis”.134
VI. Conclusion and perspectives
Freedom of expression is enshrined in Article 10 of the European Convention on
Human Rights and recognised by the European Court of Human Rights as well as by the
Courts of the European Communities as one of the essential foundations of a democratic
society. They all acknowledge its contribution to pluralism, tolerance and
broadmindedness without which there is no democratic society. The European Court of
Human Rights stresses the important role of the press as a “public watchdog” and
confirms that also in the area of audio-visual media the principles regarding freedom of
132
broadcasting, Point 81.
Neelie Kroes, the European Commissioner for Competition Policy, explains in the context of the
new Broadcasting Communication that - where genuinely new and important services are offered on
whatever platform - the Amsterdam Protocol requires that the use of State aid may not distort
competition contrary to the common interest and thereby requires to balance the public value of a
State financed offer with its expected market impact. She also explains the necessity to start
assessing not only the public value but also the actual market impact of a new state financed media
activity at the national level in order to avoid interventions by Brussels. The test should guarantee
that a public media service satisfies the social, democratic and cultural needs of society and that its
impact on the market is commensurate. She adds: “To safeguard editorial independence, we are also
open to the possibility that the test is done by a body within the public broadcaster itself, subject to
safeguards to avoid a conflict of interest.” Speech delivered on 19 March 2009 in Den Haag,
available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/09/130&format=
HTML&aged=0&language=EN&guiLanguage=en.
133
Directive 2007/65/EC of the European Parliament and the Council of 11 December 2007 (OJ L
332), Recital 9.
134
broadcasting, Point 81.
53
expression are applicable. Though the Courts do not explicitly affirm the objective
character of freedom of expression, the judgments confirm the possibility of the
Member States to develop their national media regimes according to the requirements
resulting from their function to secure pluralism.
This is evidently confirmed by the recent judgment of the ECtHR in the Faccio case
when it stresses the Member States possibility to tie the obligation to pay the licence fee
to the availability of a television set independently of the viewer’s desire to watch
public service channels. The aim of guaranteeing the funding of public service
broadcasting thereby represents a legitimate aim which justifies an interference with the
applicant's right to receive information. The Informationsverein Lentia and others and
the Kaleta cases indicate that the States not only have the possibility of developing their
national media regimes according to the requirements resulting from their function to
secure pluralism but are also obliged to secure pluralism by the chosen broadcasting
system. The recommendations, resolutions and declarations of the Committee of
Ministers and the Parliamentary Assembly of the Council of Europe as well as primary
and secondary law of the European Community stress the close connection between the
concepts of democracy, human rights, the free circulation of information and the free
expression of opinions and the concept and existence of a public service broadcasting.
They emphasise the principle of independence of public service broadcasting and its
remit to provide a benchmark of quality and to offer a wide variety of programmes and
services catering for the needs of all groups in society. They further address explicitly
the States as guarantors to enable public service broadcasters to fulfil their remit - also
against the background of new communication technologies. The Council of Europe
and the European Community explicitly consider the activity of public service
broadcasting in new media services as part of their remit.
The recommendations, resolutions and declarations of the Committee of Ministers and
the Parliamentary Assembly of the Council of Europe further express the explicit
demand for the provision of adequate economic and legal conditions in order to enable
them to fulfil their remit including the use of new media services135, but also the legal
acts of the European Community, namely the Protocol on the system of public
broadcasting of 10 November 1997, confirm the need to provide adequate funding to
public service broadcasting in order to enable them to fulfil their remit. The legal acts of
the European Community’s institutions also expressly require participation by public
service broadcasting in new media services. The Commission, the Council and the
Parliament point out the comprehensive mission of public service broadcasters and that
135
See Recommendation (2003) 9 on measures to promote democratic and social contribution of digital broadcasting, Recommendation Rec (2007) 3 on the remit of public service media in the information society (both from the Committee of Ministers), Recommendation 1641 (2004) on public
service broadcasting, Recommendation 1855 (2009) on the regulation of audio-visual media services and Recommendation 1878 (2009) on the funding of public service broadcasting (all from the
Parliamentary Assembly of the Council of Europe).
54
the fulfilment of the mission of public service broadcasting requires that it continue to
benefit from technological progress136 which corresponds with the requirement of the
Committee of Ministers and the Parliamentary Assembly of the Council of Europe to
allow public service broadcasters to develop in order to make use of the possibilities
offered by the new communication technologies and services.137
136
See Resolution of the Council and of the Representatives of the Governments of the Member States,
meeting within the Council of 25 January 1999 concerning public service broadcasting (OJ C 030),
Directive 2007/65/EC of the European Parliament and the Council of 11 December 2007 (OJ L 332)
and the Revised Communication from the Commission on the application of State aid rules to public
service broadcasting, op. cit.
137
See Recommendation No. R (96) 10 on the independence of public service broadcasting, Recommendation (2003) 9 on measures to promote democratic and social contribution of digital broadcasting, Recommendation Rec (2007) 3 on the remit of public service media in the information society, Recommendation 1641 (2004) on public service broadcasting, Recommendation 1855 (2009) on
the regulation of audio-visual media and Recommendation 1878 (2009) on the funding of public
service broadcasting.
55
56
France
Pascal Kamina
I.
Introduction
This report takes into account the amendments to the French Broadcasting Act, the Law
of 30 September 1986 on the freedom of communication, which have recently been
effected by the Law on audiovisual communication and on the new public service of
television of 5 March 2009 (hereafter the Law on the New Public Service of
Television).
It also includes reference to the important decision of the French Constitutional Court,
the Conseil constitutionnel, of 3 March 2009, on this new Law.
In this introduction we will give an account of the state of the electronic media market
in which PSM operate and, within this, of the scope of public service media (“PSM”) in
France (1.) and describe the constitutional and legal framework for PSM and how
constitutional freedoms are protected in the field of media (2.).
1.
Short overview of the (electronic) media market
a)
Public service broadcasters
PSM in France are in fact restricted to the field of broadcasting and its extensions. So
far there exist no specific PSM on new media, but, rather, extensions of activities by
public service broadcasters (“PSB”) or their subsidiaries on these media.
The Law of 30 September 1986 defines the so-called “public sector of audiovisual
communication” (Title III of the Act).
Up to the Law on the New Public Service of Television, this sector consisted of the
“national programme corporations” (France 2, France 3, La Cinquième, Réseau France
Outre-mer, Radio France and Radio France Internationale), the company France 4, the
Franco-German channel ARTE, the Chaîne Parlementaire (Parliamentary TV Channel)
and the Institut National de l’Audiovisuel (INA).
The national programme corporations France 2, France 3, La Cinquième, Réseau France
Outre-mer (RFO) and France 4 were subsidiaries of another corporation, the (group or
holding) company France Télévisions, which was in particular in charge of defining the
strategic orientations, of coordinating and promoting the policies of programmes and
the offer of services of these channels.
57
One of the effects of the Law on the New Public Service of Television is to reorganize
the group France Télévisions. France Télévisions has now become a “national
programme corporation” proposing an offer of audiovisual communication services.
Therefore, France Télévisions is now publisher of the television services that were
beforehand published by its subsidiaries (the former companies France 2, France 3,
France 4, La Cinquième and Réseau France Outre-mer (RFO), which have been
absorbed by France Télévisions.
Subsidiaries of France Télévisions which are not subject to missions of public service,
such as TV5 Monde for example, are outside the scope of the “audiovisual public
service”. This is also true for pay channels, which do not serve public service missions,
the latter implying, inter alia, free access. Also, the free French international news
channel, the share capital of which is equally held by France Télévisions and the private
broadcaster TF1, has no specific legislative status. The same is true for the companies
publishing the parliamentary channels (La Chaîne parlementaire-Assemblée nationale et
La Chaîne parlementaire-Sénat), which are not part of the audiovisual public service.
Another national corporation, Radio France, produces and programmes radio
programmes of a national and local nature, intended to be broadcast on the whole or part
of the metropolitan territory.
Lastly, the former Radio France Internationale was replaced by a “société en charge de
l’audiovisuel extérieur de la France” (company in charge of the foreign audiovisual
[sector] of France); it is responsible for contributing to the dissemination of French
culture by radio, television and online public communication services in French or
foreign language intended for foreign audiences and for French persons residing abroad.
Under Article 45 of the Law of 30 September 1986, a company called ARTE-France
conceives and provides the programmes and the means necessary for the exercise of the
missions of the Groupement européen d'intérêt économique ARTE resulting from the
Treaty of 2 October 1990 instituting a European cultural channel. The programming
must take account of the international character, in particular European, of its public.
The capital of this company is held equally by ARTE-France and ARTE Deutschland
TV GmbH, themselves held directly or indirectly by public bodies.
Under Article 49 of the Law of 30 September 1986, the INA, a public corporation, is
responsible for preserving and developing the national audiovisual heritage. The
institute ensures the conservation of the audiovisual archives of the national programme
corporations and contributes to their exploitation. The nature, the tariffs, the financial
conditions of the documentary services and the procedures of exploitation of these
archives are fixed by agreement between the institute and each national programme
corporation. These agreements are approved by decree of the Ministers in charge of the
budget and of the communication. The missions of the INA are specified by decree.
Other public service media would include subsidiaries of the national programmes
corporation that carry a mission of public service under Article 43-11 of the Law of 30
September 1986. These may extend beyond the field of television broadcasting and
include video-on-demand (VoD) services, as expressly acknowledged under Article 44-I
of the Law. However, so far the existing subsidiaries of PSB are not subject to the
58
public service missions defined in Article 43-11 or to similar “cahiers des charges”
(book of administrative obligations) as national programme corporations. Accordingly,
they fall technically outside the scope of the “audiovisual public service” under French
law, and operate under normal market conditions.
b)
Private services and market shares
The market of analogue terrestrial TV is currently shared between seven nation-wide
channels, composed of:
•
6 free channels - four public service television programmes: France 2, France 3,
ARTE and France 5;1 and two commercial generalist channels: TF1 and M6.
•
1 premium channel, Canal+.
The market of digital terrestrial TV (87% of French population covered at the end of
2007) comprises 18 free channels, composed of:
•
five public service television programmes: France 2, France 3, France 4, ARTE and
France 5, twelve commercial channels: TF1, M6, Direct 8, W9, TMC, BT1, NRJ12,
La Chaîne Parlementaire, BFM TV, i>Télé, Virgin 17 and Gulli,
•
1 premium channel, Canal+ (when unencrypted at certain hours),
•
and pay channels.
The following table lists all channels distributed on DTTV. PSM channels are outlined
in grey.
Free
1
Channels
Publishers
France 2
France Télévisions
France 3
France 4
France 5
ARTE
ARTE France
LCP
LCP-AN / Public Sénat
TF1
TF1
ARTE and France 5 sharing the same frequency in analogue terrestrial.
59
Pay
M6
Métropole Télévision
Direct 8
Bolloré Média
W9
Edi TV (M6)
TMC
Télé Monte Carlo (TF1-AB)
NT1
NT1 (AB)
NRJ 12
NRJ TV
BFM TV
BFM TV
i>Télé
SESI (Canal+)
Europe2 TV*
MCM (Lagardère)
Gulli
Jeunesse TV (Lagardère-Fr
Canal+
Télévision
Canal+ Sport
Canal+
Canal+ Cinéma
Canal+
TPS Star
Canal+
Paris Première
TPS Star
AB1
Paris Première (M6)
TF6
AB1 (AB)
LCI
TF6 (TF1-M6)
Eurosport
La Chaîne Info ( TF1)
Planète
Eurosport France (TF1)
Canal J
Planète Câble (Canal+)
The total audience share of public service broadcasters of terrestrial television is
traditionally around 40%, with a decrease from 2000 onwards.
Hence, in February 2009 channels exclusively distributed on terrestrial television have
reached a total share of audience of 27%, against 73% for the main hertzian channels.2
2
Source: AFP news, 2 March 2009, Mediametrie.
60
TF1 remains the leader, with 26.2%, but its share is shrinking (27.5% in February
2008). France 2 achieves a share of 16.4%, against 18.3% a year earlier. France 3
achieves 12.1%, against 13.2% in 2008. France 5 achieves 3.1%, ARTE 1.6% and
France 4 1% (all three stable compared to last year).
The satellite and cable distribution market has been the theatre of mergers between the
main competitors, resulting in one major satellite platform, CanalSat, and one major
cable distributor, Numericable. The penetration of cable and satellite services is limited
in France as most French households access television services through terrestrial
services only (75%). France Télévisions has developed an offer of (pay) thematic
channels on these platforms. In 2004, the thematic channels of the France Télévisions
group achieved 3 % of the total income of the 96 thematic channels analysed by the
broadcasting authority (CSA), against 12% for the channels controlled directly by TF1.
Offers of television service over ADSL networks (IP TV) are proposed by ADSL
operators to their subscribers (Alice, Club internet, Darty, Free, Neuf Cegetel, Noos,
Orange TV). Channels of the group France Télévisions are present on these offers. In
fact, in compliance with its public service missions, France Télévisions proposes its
channels to these services, either free of charge for the terrestrial channels, or against a
fee for its cable and satellite thematic channels.
Offers of TV over mobile networks are also distributed by mobile operators. At the end
of 2007, there were between 8 and 10 million potential users of TV over mobile
networks services, equipped with multimedia terminals (against 5 millions in 2006), of
which more than 1 million were active users of television services on their mobile
phone. PSB channels are also distributed on these platforms.
At present there exist four types of VoD services providers in France:
•
Broadcasters, offering both audiovisual works on their own VoD sites, but also
“catch-up TV” sites. ARTE operates a website dedicated to catch-up TV
(“ARTE+7”);
•
Electronic communications operators (access providers, telecom operators, cable
operators);
•
Independent platforms: pure VoD players, video publishers, retailers (such as Virgin
or Fnac);
•
Institutions in the audiovisual field, such as INA.
A substantial part of current on-demand offerings of audiovisual works in France are
“catch-up” services from the main broadcasters.
France Télévisions proposes a pay VoD offer, launched on the Internet in November
2005. In 2006, the entire VoD offer of France Télévisions on the Internet was
concentrated on the website FranceTVOD.fr. As of 30 June 2008, it included more than
1,700 works.
61
France Télévisions signed in 2007 with Orange an agreement concerning catch up TV,
through the service names “24/24 TV”: it allows the free viewing on several platforms
(computer, television and mobile phone) of programmes from France 2, France 3,
France 4, France 5 and France Ô.
The Law on the New Public Service of Television follows the recommendations made
in 2008 by an ad-hoc Commission on public television, which proposed the
implementation of a “global media” strategy for the public sector, meaning that the
France Télévisions group should be present on all existing and future distribution media
(mobile television, Internet, VoD). This explains, in particular, the reorganisation of the
group around a “unique/single company“, France Télévisions, whose activity is centred
on content.
In application of this strategy, the draft new “cahier des charges” (books of
administrative obligations) of France Télévisions provides that the company
“publishes, co-publishes or distributes on-demand audiovisual media services (catch up
television, video on demand, etc.) which allow either a new delivery to the public of
programmes broadcast on television services, or the display of additional content or
specific content corresponding to the missions of France Télévisions. In particular, these
services will tend to offer an instantaneous and individualized display and access to all
kinds of programming: fiction, series, animation, documentaries, live shows, magazines,
information, sport, religious programmes, entertainment, cultural programmes, etc.
These on-demand audiovisual services will be directed at all publics and will be accessible
on all electronic communication media and through adapted, existing or future,
transmission techniques, in order to respond to the evolution of uses. To this end
agreements can be entered with public or private partners. These services will be
implemented under economic modalities and conditions of the market of on-demand
audiovisual media services and their delivery conditioned to the obtention of the
corresponding rights.”3
2.
Legal framework for PSM
a)
Constitutional law
In France the constitutional freedoms are defined in the Declaration of Rights of 1789,
in the preamble of the Constitution of 1946 and in the preamble of the Constitution of
1958, the latter text making reference to the former ones. The main constitutional
freedoms relevant for present purposes are the freedom of communication and its
corollaries. Other freedoms can also be relevant in relation to the missions of PSM.
The fundamental source of the law of communication, and therefore of broadcasting
law, is Article 11 of the Declaration of Human Rights of 26 August 1789, which
provides that
“the free communication of thoughts and opinions is one of the most invaluable rights of
the man: any citizen can thus speak, write, print freely, subject to being liable to the abuse
of this freedom in the cases determined by the law”.
3
Article 23.
62
This Declaration has constitutional value since it is referred to in the Preamble to the
French Constitution of 4 October 1958.
Article 34 of the Constitution, as amended by the Constitutional law of 23 July 2008,
now provides that “the Law (i.e. Acts of Parliament) fixes the rules relating to…
freedom, pluralism and independence of media”.
Next to the freedom of expression another principle of constitutional value can be of
relevance in the context of defining the remit of PSM.
One could think of the freedom of conscience which was consecrated as a constitutional
freedom by the Conseil constitutionnel in decision n°77-87 DC of 23 November 1977.
It seems to have found a specific expression for PSM in the Law on the New Public
Service of Television which inserted a new paragraph in Article 44 of the Law of 30
September 1986 drafted as follows:
“any journalist of a national programme corporation has the right to refuse any pressure, to
refuse to divulge its sources, to refuse to sign a programme or part of a programme the
form or content of which has been modified without him knowing it or against his will. He
cannot be forced to accept any action contrary to his intimate professional belief.”4
This article may also be considered as a specific expression of the principle of
independence.
Other principles of constitutional value would include the principles of equality between
men and women and of non discrimination in the workplace, included in the preamble
of the Constitution of 1946, or the principle of equality, translations of which can be
found in the definition of missions of PSM.
b)
Ordinary law
On a legislative level, the legal framework of the audiovisual communication is
constituted by the Law no 86-1067 of 30 September 1986 “on freedom of
communication”, as amended. Title III of the Law is dedicated to the “public
audiovisual sector”5. Until 2004, Article 1 of the Law read: “audiovisual
communication is free”. The same article now reads: “communication to the public by
electronic means is free”, which of course encompasses audiovisual communication.
Next to the Law of 30 September 1986 there exist numerous, non-codified, texts,
mainly of a technical nature, applicable to PSM. The Code of Posts and Electronic
Communications and the Tax Code also include specific provisions applicable to the
broadcasting industries. Lastly, broadcasters are also subject to numerous provisions of
the Law of July 1881 on the Freedom of the Press (in particular to the sanctions for the
press and media offences detailed in this act).
4
New Article 44-VI.
5
Article 43-11 to 57.
63
Regulations and standards applicable to all broadcasters, either public or private, are
either set by the law or defined by the Conseil supérieur de l’audiovisuel (hereafter
“CSA”), an independent administrative authority created in order to monitor the
broadcasting industry. The CSA was established by Law no 89-25 of 17 January 1989,
and is historically the third authority of audiovisual regulation in France.
Before the Law on the New Public Service of Television, the CSA nominated the
presidents of the public broadcasting companies (TV and radio). The Law on the New
Public Service of Television now grants this power to the government, by decree,
subject to assent (avis conforme) of the CSA and opinion of the competent
parliamentary commissions (new article 47-4 of the Law of 30 September 1986). This
modification was validated by the Conseil constitutionnel in its decision of 3 March
2009.
aa)
Remit
The missions of the public service are defined in article 43-11 of the Law of 30
September 1986 and are specified in its “cahier des missions et des charges” (book of
administrative obligations), defined by decree.6
In a general way, Article 43-11 of the Law of 30 September 1986 provides that the
corporation mentioned in Articles 44 and 45 of the Act (public services broadcasters)
pursues, in the general interest (see in detail below chapter II.2.a)), missions of public
service including, inter alia, the offer of a diverse, pluralistic programming, innovative
and of quality, in the respect of the rights of the person and of the democratic principles
constitutionally defined.
bb)
Structure/organisation
The French State holds the totality of the capital of the corporations France Télévisions,
Radio France and the Société en charge de l’audiovisuel extérieur de la France. These
corporations are subject to the legislation on the limited liability companies (sociétés
anonymes), except where provisions of the law on freedom of communication state the
contrary. Their statutes are approved by decree.
Under the conditions fixed by decree, in particular by the specifications of their “cahier
des missions et des charges” the national programme corporation and the subsidiary
companies can produce for themselves audiovisual works and documents and take part
in co-production agreements. However, they can invest in shares of a co-producer in the
financing of a cinematographic work only through the intermediary of a specific
subsidiary company having this exclusive social purpose.
6
The current cahier des charges of France Télévisions will be redrafted in order to reflect the new
reform and the absorption of its subsidiaries. The draft cahier des charges of France Télévisions,
dated
20
October
2008,
is
accessible
at
the
following
address:
http://www.culture.gouv.fr/culture/actualites/ccFranceTV.pdf.
64
France Télévisions can also, under certain conditions, create subsidiary companies to
carry out activities in conformity with its corporate object.
cc)
Funding
Article 53 of the Law of 30 September 1986, provides that “objectives and [financial]
means contracts” (“contrats d’objectifs et de moyens”) are concluded between the State
and each of the companies France Télévisions, Radio France and Radio France
Internationale, and with ARTE-France and the INA. These have been created by Law
n° 2000-719 of 1 August 2000 in order to give a pluri-annual perspective on the
evolution of the financing of public television, adapted to their adopted development
strategy.7
The duration of these contracts is between three and five years. They determine in
particular, in the respect of public service mission, for each relevant company or
institution:
•
the priority axis for its development, including the undertakings relating to diversity
and innovation in creation and the undertakings relating to equality of rights and
opportunities, and the participation, citizenship of disabled person and necessary
adaptations of programmes to this public;
•
the provisional cost of its activities for each of the relevant years, and the
quantitative and qualitative indicators of execution and of results that were retained;
•
the amount of public resources that must be allocated, while identifying those which
are, as a priority, dedicated to the development of the budget of programmes;
•
the amount of the expected product from receipts, in particular from advertising and
sponsorship;
•
the economic perspectives for the pay services.
Several contrats d’objectifs et de moyens have been concluded with the relevant
corporations and are now in force (ARTE-France for the years 2006-2011, France
Télévisions for 2007-2010, Radio France for 2006-2009, and INA for 2005-2009).
The financing of the public sector of the audiovisual was around 3.6 billion Euros in
2006.
The broadcasting tax (“redevance audiovisuelle”) paid by each household being
equipped with a TV set is the main resource of the public audiovisual sector. It
represents 70-77% of its financing, i.e. more than 2 billion Euros each year.8 Other
7
Similar contracts had been and are concluded outside the audiovisual field with other entities in
charge of public service missions.
8
Source: Direction des médias. More precisely, up to now the broadcasting tax accounted for almost
100% of the income of ARTE-France, the INA and RFI, for 91% of the income of RFO and Radio
France, and respectively for 54%, 50% and 39% of the income of France 3, France 5 and France 2.
65
sources include advertising and sponsorship (20-24% of the total), and revenue from
commercial exploitation of works (4%).9
France Télévisions is now deprived of a major source of income, in the form of
advertising. The Law on the New Public Service of Television implements the project
of the government to suppress advertisements on public television channels, a project
which was implemented “voluntarily” by the board of administration of France
Télévisions as of 5 January 2009. The Law modifies Article 53 of the Law of
30 September 1986 and prohibits the broadcasting of advertising spots, other than those
for goods or services under their generic appellation, in the national programmes of
audiovisual communication services broadcast between 8 p.m. and 6 a.m. in a first stage
and also between 6 a.m. and 8 p.m. from the termination of broadcast of these services
on analogue terrestrial television. However, the Law adds that the implementation of
this principle carries financial compensation to be provided by the State, defined by
each Loi de finances (annual financial law). In its decision of 3 March 2009, the French
Constitutional Court held that this provision complies with the requirements of Article
11 of the Declaration on Human Rights and is therefore in conformity with the
Constitution.
The Decree of 15 May 2007, relating to the financial relations between the State and the
entities of the public sector of audiovisual communication, details the principles
applicable to the financing of the national programme corporation, in conformity with
the principles established by the Ordinance of 7 June 2004 implementing Directive
80/723/EEC of 25 June 1980 relating to the transparency of financial relations between
the State and public entities. It provides in particular that the amount of public resources
that are allocated each year to these entities in compensation for their mission of public
service must not exceed the cost of performance of these missions, taking into account
the direct or indirect receipts obtained by each entity from its activities of public
service.10 It also provides that these entities must respect normal market conditions for
all their commercial activities, the execution of this obligation being subject to annual
reporting obligations.11
dd)
Supervision of PSB
As mentioned, the CSA monitors broadcasting activities of national programme
corporations. The main function of this independent administrative authority is to
guarantee the freedom of communication under the conditions laid down by the Law of
30 September 1986, as amended. It is composed of nine members: three are appointed
by the President of the Republic, three are designated by the President of the Senate and
three others by the President of the National Assembly. The term of their office was
reduced from nine to six years. Members of the CSA are not revocable and their
mandate may not be renewed.
9
Source: Le Monde, 3 October 2007.
10
Art. 2.
11
Art. 3.
66
Under the terms of the Law of 30 September 1986, as amended, the CSA has the
following powers:
•
It manages the terrestrial frequencies. This includes the planning for the FM
waveband, the allocation of broadcasting channels to television channels and the
frequency planning of digital terrestrial television. A specific, more favourable,
regime applies to public broadcasters.
•
It issues licences for terrestrial broadcasting to FM radios and private television
companies. Such licences are conditioned by the conclusion of a convention
(“licence”) entered into between the publisher and the CSA. This regime is not
applicable to public broadcasters who operate in accordance to “cahier des missions
et des charges” defined by decree.
•
The CSA monitors broadcasting activities (both private and public) to ensure the
respect of the broadcasters’ obligations and of the principles laid out in the Law on
freedom of communication (relating to the pluralism and veracity of information,
broadcasting quotas, obligations of production, protection of youth, advertising,
sponsorship and tele-shopping, promotion of the French language ...). Violation of
these regulations can carry, following the appropriate procedure (usually a ceaseand-desist letter or request for explanation sent by the CSA), penalties for the
broadcaster and, theoretically and for private broadcasters only, a “black screen” or
the withdrawal or the non-renewal of the licence.
If a public broadcaster mentioned in Article 44 of the Law of 30 September 1986 does
not comply with the orders made by the CSA, the authority may order suspension of
part of its programme for a maximum of one month or may impose a penalty.12 In all
cases, the CSA can order, under penalty, that a declaration be inserted/made in their
programmes, the content and broadcasting conditions of which are defined by the
CSA.13
II.
Jurisprudence of the Constitutional Court on the Role, Remit and
Independence of PSM
1.
General lines of the relevant jurisprudence
Under current French law the control of constitutionality of laws is only operated ex
ante (that is, before the relevant law is promulgated) by the Constitutional Court, the
12
L. 30 Sept. 1986, art. 48-2.
13
Art. 48-3.
67
Conseil constitutionnel, if and when seized by the relevant authorities.14 In other words,
ordinary courts (judicial or administrative courts) cannot control the constitutionality of
an act of parliament (a “law”).15
It should be noted that the French Constitution was modified in 2008 also in order to
grant to ordinary citizens the right to ask for an ex post control of constitutionality of a
law on the occasion of litigation in which they are involved, if they consider that the law
violates their rights and freedoms protected by the Constitution (new Article 61-1 of the
Constitution). However, this reform requires implementation through a specific law,
which has not been adopted yet.
The remit and the role of PSM being defined by the law, and in particular by Article 4311 of the Law of 30 September 1986, case law on issue could only be developed by the
Conseil constitutionnel if it had been seized about the conformity of the relevant article
at the time of passing of the Law or of amendments thereof.
So far, the Conseil constitutionnel has not been seized on this question. Therefore, it has
not rendered any decisions specifically on the remit and the role of PSM, although some
of its decisions affect their construction. The few decisions rendered in the field of
audiovisual communication have been centred on aspects such as the principle of
regulation of freedom of communication through an independent administrative
authority (CSA), the powers of the CSA, the question of nomination of presidents of
national programme corporations and linguistic issues.
The question of compatibility with Article 11 of the Declaration of Human Rights (or
with Article 1 of the Law of 30 September 1986) can be addressed in the context of
administrative actions against decisions of the CSA or the decrees setting the “cahiers
des charges”(books of administrative obligations) of PSB.
Administrative courts have been asked to invalidate certain decisions of the CSA, but
none on the remits of PSBs. There is some limited case law, however, regarding
electoral periods16 and access by certain parties or associations to programmes. In
addition, the cahiers des missions et des charges of PSBs and the associated decrees
have not been attacked before administrative courts, except on very specific issues
which are not relevant for this study. As mentioned, the CSA is in charge of
guaranteeing the exercise of this freedom under the conditions described by the Law,
and is consulted in the process of elaboration of the cahier des charges of public service
broadcasters. As also mentioned, decisions of the CSA on these issues or affecting these
freedoms could be challenged before the administrative courts.
14
Subject to limited exceptions, the Conseil constitutionnel cannot seize itself. It can only be seized by
the President of the Republic, the Prime Minister, the President of the Senate, the President of the
National Assembly, or by 60 members of the National Assembly or of the Senate.
15
However, they can control the conformity of a law to a similar fundamental right instituted by a
Treaty, for example under the ECHR. They can also apply the legislative principle of freedom of
expression, as expressed by the Law of 30 September 1986.
16
On enforcement and definition of equality of speech time.
68
a)
Constitutional law context of PSM
Pluralism of thought and opinions is in itself an objective of constitutional value, which,
for the Conseil constitutionnel, is “the basis for democracy”17 and “a condition of
democracy”.18 This principle is not limited to the printed press but also concerns
audiovisual communication.19 The Conseil constitutionnel also refers to the “pluralist
character of sociocultural currents of expression”.20
aa)
Contribution to democracy
As already mentioned, Article 34 of the Constitution, as amended by the Constitutional
Law of 23 July 2008, now provides that “the Law (i.e. Acts of Parliament) fixes the
rules relating to… freedom, pluralism and independence of the media”.
Article 43-11 of the Law of 30 September 1986 defining the mission of public services
provides that public services broadcasters must
“(…) offer to the public, taken in all its components, a body of programmes and services
which are characterized by their diversity and their pluralism, their requirement of quality
and innovation, the respect of the rights of the person and the democratic principles
constitutionally defined. (…)
(...) ensure the honesty, the independence and the pluralism of information as well as the
pluralist expression of the currents of thought and opinion in the respect of the principle of
equal treatment and the recommendations of the CSA”
(…) implement actions in favour of social cohesion, of cultural diversity and of fight
against discrimination and propose a programmation reflecting the diversity of the French
society.
(…) support, by adapted devices, the access of the deaf persons to the programmes they
broadcast.
(…) contribute to the development and the dissemination of intellectual and artistic
creation and the civic, economic, social, scientific and technical knowledge and to the
education to the audiovisual and the media.”
Obligations as to honesty, independence and pluralism of information are also included
in the cahier des charges of France 2, France 3, France 4 and France 5.
Article 43-11 thereby also refers to the objectivity standards in, and the
comprehensiveness of, the information provided.
17
Cons. const., 11 January 1990, n° 89-271 DC, consid. 12 : Rec. Cons. const. 1990, p. 21. The
judgments of the Conseil Constitutionnel as well as of the Conseil d’État are available at:
http://www.legifrance.gouv.fr/.
18
Cons. const., 1 July 2004, n° 2004-497 DC, consid. 23 : Rec. Cons. const. 2004, p. 107.
19
Cons. const., 18 September 1986, n° 86-217 DC, consid. 11 : Rec. Cons. const. 1986, p. 141.
20
Cons. const., 27 July 2000, déc. n° 2000-433 DC.
69
The CSA has issued general deontological recommendations, which can be attached to
this objective.21
An obligation to “favour the democratic debate, exchanges between the different parts
of the population as well as social cohesion/integration and citizenship” is also
included in the current cahier des charges of France 2, France 3 and France 5.
Furthermore, Article 13 of the Law of 30 September 1986 provides that the CSA
“ensures the respect of the pluralist expression of currents of thought and opinion in
television and radio programmes, in particular for general and political information
programmes”.
In order to guarantee control of this principle, this Article stipulates that the CSA
provides each month to the Presidents of the chambers of the Parliament and to the
heads of the political parties represented in Parliament a record of the broadcast time
accorded to political personalities within news, magazines and other programmes.
The CSA also adopted on 8 February 2000 a text relating to the modalities of
application of pluralism outside election periods (applicable to all broadcasters, public
and private). These principles are reinforced during election periods. Article 16 of the
Law of 30 September 1986 provides that the CSA establishes the rules concerning the
conditions of production, programming and broadcast of programmes relating to
electoral campaigns that national programme corporations are under a duty to produce
and programme (an obligation further defined in the cahier des charges of public
broadcasters). In addition the CSA has adopted recommendations for the equitable
treatment of candidates during election periods (around 30 at present). The election of
the President of the Republic is subject to specific rules under a Decree n° 2001-213 of
8 March 2001, with strict equality rules.
Lastly, Articles 55 and 56 of the Law of 30 September 1986 grant broadcast time to the
benefit of political parties represented by a group in one Chamber of the Parliament and
of nationally representative professional and trade union organizations, and to
representatives of the main religions practices in France (only on the channel France 2
for religious programmes).
bb)
Contribution to culture and education and to linguistic diversity
Article 43-11, defining the mission of public services, refers to this mission by stating
that public service broadcasters must:“(…) offer to the public, taken in all its components, a
body of programmes and services which are characterized by their diversity and their
21
For example, it adopted on 24 March 1992 a recommendation relating to the use of archive images
in programmes: noting that certain practices are likely, in certain cases, to harm proper
comprehension of the subject by the public, and even to cause injury to third parties, the CSA
imposes in particular a clear and precise indication of the origin and true nature of broadcast images.
The CSA also published several recommendations on “reality television”, one recommendation on
the “verification of sources”, and recommendations relating to the coverage of “international
conflicts”.
70
pluralism, their requirement of quality and innovation, the respect of the rights of the
person and the democratic principles constitutionally defined. (…)
(…) present a diversified offer of programmes in analogue and digital modes in the fields
of information, culture, knowledge, entertainment and sport.
(…) ensure the promotion of the French language and emphasise the cultural and
linguistic heritage in its regional and local diversity.(…) implement actions in favour of
social cohesion, of cultural diversity and of the fight against discrimination and propose
programming which reflects the diversity of French society.
(…) contribute to the development and the dissemination of intellectual and artistic
creation and the civic, economic, social, scientific and technical knowledge and to the
education to the audiovisual and the media.”
Article 43-11, defining the mission of public services, thereby also refers to social
cohesion and the fight against discrimination (safeguard of equality). These objectives
are also translated in the cahier des charges of the public broadcasters, notably in the
form of obligations to produce programmes adapted to persons with hearing
deficiencies.
The cahiers des charges of France 2, France 3 and France 5 also include an obligation
for these channels to “participate in the development and distribution of intellectual
and artistic creation and of civic, economic, social, scientific and technical knowledge”,
and specify that they “also contribute to audiovisual and media education”.
Article 43-11 also defines the promotion of cultural and linguistic diversity as one of the
missions of public service broadcasters. It also provides that PSM must “contribute to
the external audiovisual action, to the influence of the francophonie and the diffusion of
the French culture and language in the world.”
Obligations as to the promotion and use of the French language are also included in the
cahiers des charges of France 2, France 3, France 4 and France 5. The CSA has also
adopted a recommendation on this subject.22
In its decision n° 94-345 DC of 29 July 1994 on the Law of 4 August 1994 on the use of
French language, the Conseil constitutionnel held that Article 11 of the Declaration of
Rights prevents the legislator from imposing, under sanctions, the obligation to use
official terminology on public or private broadcasters. However, the Court did not
invalidate the provisions imposing the use of French language in all programmes and
advertisements of radio or television broadcasters, subject to the exceptions they admit.
cc)
Contribution to freedom of expression and freedom of media
The constitutional value of this fundamental objective and its corollaries have already
been described. Article 43-11, defining the mission of public services, refers to this
mission by stating that public service broadcasters must:
22
Recommendation of 18 January 2005.
71
“(…) offer to the public, taken in all its components, a body of programmes and services
which are characterized by their diversity and their pluralism, their requirement of quality
and innovation, the respect of the rights of the person and the democratic principles
constitutionally defined.
(…) support the democratic debate, the exchanges between the various parts of the
population as well as the social integration and the citizenship.
(…) ensure the honesty, the independence and the pluralism of information as well as the
pluralist expression of the currents of thought and opinion in the respect of the principle of
equal treatment and the recommendations of the CSA.”
Regulations implementing the objectives of pluralism and independence, which are
corollaries of the principle of freedom of expression, can of course be attached to this
general freedom.
b)
(Explicitly named parts of the) remit (general description)
The Conseil constitutionnel recognises the role of the press and the audiovisual
communication for a pluralistic society and democracy,23 but it has not rendered any
decisions specifically on the remit and the role of PSM.
c)
Determination of the scope/extent of protection
aa)
Independence
The Law of 30 September 1986 and the case law of the Constitutional Court make it
clear that the principle of freedom of expression has as its corollaries the principles of
independence and impartiality of the audiovisual public sector (see in detail chapter II 2.
b) and c)).
This is expressly stated by Article 1 of the Law of 30 September 1986, which provides
that the CSA guarantees the independence and impartiality of the public sector of radio
and television, and further by Article 43-11 of the same law which provides that public
services broadcasters must
“ensure the honesty, the independence and the pluralism of information as well as the
pluralist expression of the currents of thought and opinion in respect of the principle of
equal treatment and the recommendations of the CSA”.
Independence is understood as independence of information, and not as complete
(notably financial or managerial) independence from the State.
A specific expression of the principle of independence was - as already mentioned enshrined for PSM in the Law on the New Public Service of Television, which inserted
a new paragraph in article 44 of the Law of 30 September 1986, drafted as follows:
23
Cons. const., 11 January 1990, n° 89-271 DC, consid. 12 : Rec. Cons. const. 1990, p. 21 in
connection with Cons. const., 1 July 2004, n° 2004-497 DC, consid. 23 : Rec. Cons. const. 2004,
p. 107.
72
“any journalist of a national programme corporation has the right to refuse any pressure, to
refuse to divulge its sources, to refuse to sign a programme or part of a programme the
form or content of which has been modified without him knowing it or against its will. He
cannot be forced to accept and action contrary to his intimate professional belief. “24
Also the Conseil constitutionnel concluded in its decision of 3 March 2009 that
adequate funding of PSM is an element of their independence (see below in ee)) and
chapter II. 2. b)).
bb)
Freedom of organisation; freedom from State intervention
This freedom is not enshrined as a constitutional freedom or as a corollary of freedom
of expression. But State intervention could be contrary to constitutional principles if it
violates, for example, the principle of independence.
cc)
Freedom of programming
The Constitutional Court has not elaborated on this as a separate freedom, but the
freedom of programming is protected through the principles of independence and
freedom of expression. Subject to the application of these principles, PSM have to
observe the rules of direction and management derived from their legal structure.
dd)
Guarantee for functionally-adequate funding
The Conseil constitutionnel concluded in its decision of 3 March 2009 that adequate
funding of PSM is an element of their independence and that, therefore, it is necessary
to comply with this constitutional objective and Article 11 of the Declaration of Rights
on freedom of expression (see in detail below chapter II. 2. b)).
2.
Mission of PSM in detail
a)
Remit/(specific) obligations
The Conseil constitutionnel and the Conseil d’Etat have so far not handed down any
decisions elaborating in great detail on the remit and the role of PSM. However, the
courts implicitly dealt with the issue in some of their judgments:
Even before the freedom of communication expressly received its constitutional rank
within the text of the French Constitution, the Conseil constitutionnel had stated in 1964
that this freedom is one of the public liberties:
“Considering that the French Radio-Television entity has as a particular aim the
communication of the ideas and information; that it thus concerns one of public freedoms
[...].25
24
New Article 44-VI.
25
Cons. const., 17 March 1964, no. 64-27L, Official Journal of 4 April 1964: “1. Considering that
article 34 of the Constitution reserves for the law [of parliament] the fixing of the rules relating to
73
In several decisions from 1982 onwards the Court clarified that this freedom also
includes the audiovisual communication and at the same time specified limits to it
which can result from the aims of (other) constitutional values like the respect of law
and order, the respect of other persons’ rights and the preservation of the pluralistic
character of the socio-cultural streams of expression.26
Hence, in its landmark decision of 1982 on the law establishing the new post-monopoly
framework for broadcasting the Conseil was asked to consider the compatibility with
Article 11 of the Declaration of Human Rights of the new regulatory framework
(notably the need for licences). The Conseil stated that:
“it is up to the legislator to reconcile, in the current state of the techniques and of their
control, the exercise of the freedom of communication such as it results from Article 11 of
the Declaration of Human Rights, with, on the one hand, the technical constraints inherent
in the audiovisual means of communication and, on the other hand, the objectives of
constitutional value which are the safeguarding of public order, respect of the freedom of
others and the safeguarding of the pluralist character of the currents of sociocultural
expressions, to which these modes of communication, by their considerable influence, are
likely to affect”.27
This “whereas” (reason of motivation) is usually reproduced verbatim in the later case
law of the Conseil, which only specifies certain of its aspects or concepts.
In this respect, a special reference is often made to pluralism:
“9. Whereas the pluralist character of the currents of sociocultural expressions is in itself
an objective of constitutional value; that the respect of pluralism is one of the conditions of
Democracy; that freedom of communication of thoughts and opinions, guaranteed by
Article 11 of the Declaration of Human Rights of 1789, would not be effective if the public,
to which audiovisual communication means are directed, was not in a position to access,
in the framework of both the private and public sectors, to programmes that guarantee the
expression of different currents of thought, in the respect of the imperative of honesty of
information;”28
Therefore the Conseil makes it clear that freedom of expression, and its specific
expressions, freedom of communication and freedom of broadcasting, which are
the fundamental guarantees granted to the citizens for the exercise of public freedoms as well as the
fixing of the rules relating to the creation of categories of public corporations;
2. Considering that the French Radio-Television entity has as a particular aim the communication
of the ideas and information; that it thus interests one of public freedoms whose fundamental
guarantees concern the above mentioned provision of article 34; that, from this and by the
monopoly of broadcasting which it received in this field, it constitutes a category of publicly-owned
establishment without equivalent on the national level; that, consequently, the legislator is solely
qualified to its rules of establishment, which include necessarily his constitutive rules; that under
these rules, it is necessary to cover, not only those which determine the relations of the French
Radio-Television entity with the State but also, because of its exceptional character for the above
mentioned reasons, the rules which fix the general framework of its organization and operation”
26
Decision of 27 July 1982, no. 82-141 DC, 18 September 1986, no. 86-217 DC, 17 January 1989, no.
88-248 DC, 21 January 1994. no. 93-333 DC.
27
Recital No. 5.
28
Decision 2000-433 of 27 July 2000:
74
necessary for a democratic state, implies pluralism, which is therefore an objective of
constitutional value. In its decision of 21 January 1994,29 the Conseil further defines the
objective of “safeguarding of the pluralist character of the currents of sociocultural
expressions” as follows:
“the objective to reach is that listeners and viewers who are among the primary
beneficiaries of the freedom of communication set by Article 11 be in a position to
exercise their free choice without private interests or public authorities substituting their
own decisions, or without their free choice being turned into the object of marketing”.
The Conseil d’Etat, in its advice of 23 May 2006,30 (see also in chapter II. 2 b)),
regarding the competence and organisation of an early switch-off of analogue
broadcasting touched upon a specific element of the remit of inter alia PSB: while
emphasising that the legislator has to respect the broadcaster’s and recipient’s rights, as
regards the latter, pointed out that the legislator is obliged to take the necessary
precautions in order to guarantee the freedom of the audiovisual communication and the
continuity of the provision of “basic services”. One aspect of this guarantee is also the
availability of these services at affordable prices.
As the Courts’ statements regarding the freedom of (also audiovisual) communication
and the obligation on the legislator to balance this freedom with constitutional values do
not elaborate in great detail on the remit of public service broadcasting, it is necessary to
go back to the ordinary law concretising the remit of public service broadcasting.
Article 43-11 of the Law of 30 September 1986 provides that the corporations
mentioned in Articles 44 and 45 of the Act (public services broadcasters) pursue, in the
general interest, missions of public service defined as follows:
•
They offer to the public, taken in all its components, a body of programmes and
services which are characterised by their diversity and their pluralism, their
requirement of quality and innovation, the respect of the rights of the person and the
democratic principles constitutionally defined.
•
They present a diversified offer of programmes in analogue and digital modes in the
fields of information, culture, knowledge, entertainment and sport.
•
They support the democratic debate, the exchanges between the various parts of the
population as well as the social integration and the citizenship.They ensure the
promotion of the French language and emphasise the cultural and linguistic heritage
in its regional and local diversity.
•
They implement actions in favour of social cohesion, of cultural diversity and of the
fight against discrimination and propose a programming reflecting the diversity of
French society.
29
N°93-333.
30
Avis n°373-05, available at http://www.ddm.gouv.fr/IMG/pdf/AvisCE373035.pdf
75
•
They contribute to the development and dissemination of intellectual and artistic
creation and the civic, economic, social, scientific and technical knowledge and to
the education of youth to the audiovisual and the media.
•
They support, by adapted devices, the access of deaf persons to the programmes
they broadcast.
•
They ensure the honesty, the independence and the pluralism of information as well
as the pluralist expression of the currents of thought and opinion in respect of the
principle of equal treatment and the recommendations of the CSA.
The Article adds that the organisations in the public sector of the audiovisual
communication, for the exercise of their missions, contribute to the external audiovisual
action, to the influence of the francophonie and the diffusion of French culture and
language in the world. They attempt to develop the new services likely to enrich or
supplement their offer of programmes as well as the new techniques of production and
diffusion of the programmes and services of audiovisual communication.
The principle of the offer being free of charge, not listed as a public service mission, is a
fundamental aspect of the organisation and operation of the audiovisual public sector.
Each year, a report is presented to the Parliament on the application of the provisions of
this Article.
Under Article 44-I of the Law of 30 September 1986, as amended, France Télévisions
must:
31
•
“conceive and programme television programmes of a national, regional and local
character, and overseas radio programmes. It also publishes and broadcasts several
audiovisual communication services, including on-demand audiovisual services,
corresponding to the public service mission defined in Article 43-11 and in its “cahier
des charges”; the corresponding characteristics of these services are specified in its
“cahier des charges”;31 it may publish them through subsidiaries whose capital is
entirely held, directly or indirectly, by public persons;
•
take into account the development of digital technologies in order to ensure the access
of the entire public to its programmes;
•
in the respect of the editorial identity of each of the services it publishes and
distributes, guarantee, by its programming and acquisition choices, the diversity of
creation and of production;
•
reflect in its programming the diversity of French society and take adapted action to
improve the presence of this diversity in the programmes;
•
conceive and distribute in the regions programmes which contribute to the knowledge
and reputation of these territories, and, as the case may be, to the expression of
regional language; these programmes are broadcast through local broadcast windows,
including at peak audience hours, and can be rebroadcast at national level; they reflect
See above.
76
the diversity of economic, social and cultural life in the regions and propose local
news;”
The Article further adds that when they broadcast television news, the services of the
company France Télévisions have an independent editorial line (“disposent d’une ligne
éditoriale indépendante”).
The obligations of the national programme corporations, and the characteristics of the
services they publish, are contained in a “cahier des missions et des charges” (book of
administrative obligations) set by decree after an opinion has been expressed by the
CSA.32
These cahiers des missions et des charges define the obligations of each of these
national programme corporations and in particular those related to their educative,
cultural and social missions, and to the imperatives of national defence, public security
and governmental communication in times of crisis.33 The modalities of the
programming of advertising programmes are also specified, as well as the maximum
share of advertising that comes from a single advertiser. The CSA is consulted for
advice on the provisions of these cahiers des missions et des charges.
Their preambles recall these missions in general terms. They further define the
obligations imposed in application of these missions, in the forms of:
•
general and deontological obligations,
•
specific obligations relating to political questions and Members of Parliament,
•
specific obligations relating to trade-union, religious or regional expression,
•
specific obligations relating to news programmes,
•
specific obligations relating to educational and social broadcasts,
•
specific obligations relating to the programming or the diversity of the
programming,
•
specific obligations relating to the production of audiovisual and cinematographic
works,
32
L. 30 sept. 1986, art. 48 ; pending implementation of the new cahier des charges of France
Télévisions, the current cahiers des charges are fixed by the following decrees: D. n° 1994-813,
16 September 1994, modified by D. n° 1996-239, D. n° 1998-348, D. n° 1999-1229, D. n° 2001142, D. n° 2002-750, D. n°2004-743, D. n° 2005-614, D. n° 2006-645, D. n° 2007-792 of 10 May
2007: cahiers des missions et des charges of France 2 and France 3; D. n° 1995-71, 20 January
1995, modified by D. n° 2002-751,D. n° 2004-743, D. n° 2005-614, D. n° 2006-645, D. n° 2007-792
of 10 May 1997: cahier des missions et des charges of France 5; D. n° 93-535, 27 March 1993,
modified by D. n° 94-341, D. n° 97-483 - France O (ex RFO); D. n°05-286, 29 March 2005, D.
n°06-645, 1st June 2006: cahier des missions et des charges of France 4.
33
L. 30 sept. 1986, art. 48.
77
•
specific obligations relating to regional programmes,
•
specific obligations relating to cultural programmes,
•
specific obligations relating to intended programmes for youth,
•
specific obligations relating to scientific programmes,
•
specific obligations relating to sport,
•
specific obligations relating to game shows,
•
specific obligations relating to the broadcast of films,
•
specific obligations relating to advertising and sponsorship,
•
specific obligations relating to the supply of programmes to RFO and RFI,
•
provision of air time for other organizations,
•
obligations relating to the development of new supports of audiovisual
communication,
•
specific obligations relating to the external audiovisual action,
•
and obligations of production of audiovisual works.
b)
Safeguards/limits for implementation measures by the legislator
In its decisions on the audiovisual sector, the French Constitutional Court (Conseil
constitutionnel) has consistently held that this freedom is a regulated public freedom.
According to the Courts’ leading decision of 27 July 1982 and its settled case law
(already mentioned above in chapter II.2.a)), it is for the legislator to reconcile the
exercise of the freedom of communication with, on the one hand, the technical
constraint of the audiovisual media (notably the scarcity of resources) and, on the other
hand, other objectives of constitutional value such as the safeguard of law and public
order, the respect of freedom of others and the safeguarding of the pluralist character of
currents of socio-cultural expression. In line with the above-mentioned case law of the
Conseil constititionnel, Article 1 of the Law no 86-1067 of 30 September 1986 “on
freedom of communication” provides that:
“The exercise of this freedom can only be limited as required, on the one hand, by the
respect of the dignity of human being, of freedom and property of others, of the pluralist
character of the expression of thoughts and opinions and, on the other hand, by the
protection of children and minors, by the safeguard of public order, by the need of national
defence, by the requirements of public services, by the inner technical constraints of
communication means, and by the necessity, for audiovisual services, to develop a national
audiovisual production industry.”
Asked for advice in 2006 by the French Government on the question of a possible early
switch-off of analogue broadcasting services, the Conseil d’Etat, in its advice of 23 May
78
2006,34 specified that it is for the legislator to organise such an early switch-off, and
that, in organising this switch-off, the legislator would have to take the necessary
precautions in order to guarantee the freedom of the audiovisual communication and the
continuity of the provision of “basic services”, notably by national programme
corporations (if necessary through financial aid mechanisms directed at viewers).
According to the case law of the Conseil constitutionnel, the legislator is obliged to act
in order to guarantee the freedom of communication but at the same time has to respect
other constitutional values. This principle is also confirmed in the judgments of the
Conseil constitutionnel regarding the electoral law when it states that the legislation has
to respect the objective, constitutional value of pluralism and the fundamental freedom
of communication, aiming at the free communication of ideas and opinions.35 In the
cases regarding the press and their editorial freedom, i.e. in the case of the press the
autonomous choice of the content to be published, the Court highlighted the right of the
press to publish information freely, at least as long as the comments in question do not
substantially cross the limits of the electoral debate.
This corresponds to the judgments of the Court regarding the freedom of programming
of public service broadcasters. In order to guarantee the constitutional value of
pluralism, the freedom of programming is also limited by the obligation of public
service broadcasters to respect pluralism, the principle of equal treatment and the
prohibition to abuse propaganda. But it is notable that the Conseil constitutionnel stated
in most of the cases that the broadcaster’s actions did not infringe upon the safeguards
foreseen for the electoral debate and respected the principle of equal treatment; in none
of the cases was a violation of the prohibition to abuse propaganda established.
The important point here is that the Constitutional Court held that - although the
legislator may impose restrictions on the freedom of programming, in the cases at hand
through legislation on reporting and other programme items during election campaigns,
for instance - the legislator is under an obligation to reconcile the relevant public policy
concerns (safeguard of fair elections through measures aimed at securing noninterference by the media) with the freedoms in favour of the media, i.e. independence,
pluralist information, freedom of expression and opinion.36
It is important to recall at this stage that the control of constitutional freedoms suffered
and still suffered, in France, from several limitations, the most important being that it is
the Conseil constitutionnel, not ordinary courts, which has the task of controlling the
constitutionality of an act of Parliament. In addition, this control is operated ex ante, i.e.
before the law is promulgated, and only when the Conseil constitutionnel is addressed
by the relevant authorities.37
34
Avis n°373-05, available at http://www.ddm.gouv.fr/IMG/pdf/AvisCE373035.pdf.
35
Decision no. 84-181 DC of 10 and 11 October 1984, Rec. Cons. Const., p. 78; no. 86-217 of 18
September 1986, Rec. Cons. Const., p. 141; no. 94-345 DC of 29 July 1994.
36
Decision no. 84-181 DC of 10 and 11 October 1984, Rec. Cons. Const., p. 78; no. 86-217 of 18
September 1986, Rec. Cons. Const., p. 141; no. 94-345 DC of 29 July 1994; no. 93-333 DC of 21
January 1994.
37
As mentioned, the French Constitution was modified in 2008 in order to grant to ordinary citizens
the right to ask for an expost control of constitutionality of a law at the occasion of a litigation in
79
One consequence of this is that until recently the Conseil constitutionnel was not
notified of questions relating to the remit of PSBs. However, in its decision of 3 March
2009, the Conseil constitutionnel addressed the issue of the suppression of advertising
for France Télévisions affected by the Law on the New Public Service of Television. On
this occasion, it specified that adequate funding of PSM is an element of their
independence, and therefore necessary to comply with this constitutional objective and
Article 11 of the Declaration of Rights (freedom of expression):
“Considering, first, that the prohibition of the marketing of advertising space in the
national programmes of the audiovisual communication services of France Télévisions,
which deprives this national programme corporation of a significant part of its resources,
must be regarded as affecting the guarantee of its resources, which constitutes an element
of its independence (…)”38
The Conseil, however, validates the law, as it provides for financial compensation by
the State, but not without specifying that this compensation must be sufficient to allow
France Télévisions to perform its public service missions:
“Considering, in the second place, that under the terms of the last subparagraph of para. VI
of article 53 of the Law of 30 September 1986 referred to above, in its drafting resulting
from the submitted Law: “The implementation of the first subparagraph of the present
Article VI gives rise to financial compensation from the State. Under the conditions
defined by each annual finance law, the amount of this compensation is granted to [France
Télévisions]; that, in the respect of the independence of France Télévisions, it will thus fall
to each finance law to fix the amount of financial compensation by the State for the loss of
advertising revenue of this company so that it is capable of performing the public service
missions which are entrusted to it;” that, with this reserve, the legislator ignored neither the
extent of his competence nor the requirements resulting from Article 11 of the Declaration
of 1789;”39
c)
aa)
(Limits for) the supervision (economic behaviour and/or content-related output)
by (external) supervisory bodies
Limits for the CSA
The Conseil d’Etat’s advice of 23 May 200640 (see also chapter II.2.a) and b)) not only
specifies the obligations of the legislator but also sets a limit to the supervision by
denying the CSA the competence to allow and organise the switch-off of the analogue
broadcasting services. The CSA may change the authorisations to use the frequencies in
order to support the further development of the television networks, but it is not allowed
to disestablish the analogue transmission, even if the services could be replaced by a
digital transmission. The Conseil thereby refers to the different technical and economic
conditions and possibilities to use the digital services.
which they are involved, if they consider that the law violates their rights and freedoms protected by
the Constitution (new article 61-1 of the Constitution). However, this reform requires
implementation through a specific law, which has not been adopted yet.
38
Recital no. 18.
39
Recital no. 19.
40
Avis du Conseil d’Etat of 23 May 2006, http://redirect.php?id=10254.
80
bb)
Nomination of the Presidents of the national programme corporations
In its decision n° 89-259 DC of 26 July 1989, the Constitutional Court confirmed that
the power granted to the CSA to nominate the Presidents of the national programme
corporations was instituted in order to guarantee the independence of these companies,
and that this mechanism participates in the implementation of the principle of freedom
of communication/expression included in Article 11 of the Declaration of Rights of
1789:
“Whereas in order to ensure the independence of national programme corporations (...)
and, in doing so to implement the freedom of communication established by Article 11 of
the Declaration of Human Rights, the Law n° 86-1067 of 30 September 1986 provides that
the Presidents of these companies are appointed, for three years, by an independent
administrative authority”.41
This idea was further reaffirmed by the Conseil constitutionnel in its decision 2000-433
of 27 July 2000, in which it adds that
“the guarantee resulting from the mode of nomination established would not be effective if
the entirety of the record of the auditions and debates of the CSA were made public”.
As mentioned, the Law on the New Public Service of Television now grants this power
to the government, by decree, subject to assent (avis conforme) by the CSA and opinion
of the competent parliamentary commissions (new article 47-4 of the Law of 30
September 1986). This modification was validated by the Conseil constitutionnel in its
decision of 3 March 2009, based on the safeguards established, notably in the form of
the avis conforme of the CSA:
“6. Considering that, according to the applicants, while transferring from the CSA, an
independent administrative authority, to the President of the Republic the capacity of
nomination of the Presidents of the national programme corporations, these provisions
would violate the freedom of communication, guaranteed by Article 11 of the Declaration
of 1789, the constitutional objective of pluralism of the currents of thoughts and opinions
and, consequently, the new provisions of Article 34 of the Constitution (…);
7. Considering, firstly, that by subjecting the nomination of the Presidents of the national
programme corporation to the procedure envisaged by the last subparagraph of Article 13
of the Constitution, the organic legislator meant, having regard to the importance of these
functions for the guarantee of the rights and freedoms, to impose that the nominations are
decided while associating, by a public hearing and opinion, the national representation;
8. Considering, secondly, that under the terms of Article 13 of the submitted law, the
nominations of the Presidents of the national programme corporation can take place only
with the assent of the CSA; that thus these nominations cannot be decided without the
agreement of this independent administrative authority;
9. Considering, finally, that, contrary to what is affirmed by the applicants, the recourse to
the procedure envisaged by the last subparagraph of Article 13 of the Constitution did not
prohibit the legislator to fix or add, in the respect of the Constitution and, in particular, the
principle of the separation of powers, rules framing the capacity of nomination of the
President of the Republic in order to guarantee the independence of these companies and
thus to contribute to the implementation of the freedom of communication;
41
Recital No. 6.
81
10. Considering that it results from all that precedes that Article 13 of the submitted law
does not deprive of legal guarantees the constitutional requirements resulting from Article
11 of the Declaration of 1789.”
In this decision the Court also validated the provisions allowing the early termination of
the mandate of the Presidents of the national programme corporation under a similar
procedure.42
bb)
ARTE
Article 1 of the Treaty of 2 October 1990 provides that the European cultural channel
ARTE has the exclusive responsibility for its programming, that it is also responsible
for the making of the programmes, that it assumes the budget and staff management
under the monitoring and the control of its partners and, therefore, intervention of other
public authorities, including independent authorities in charge of the audiovisual
regulation in the country of establishment, is excluded.43 In the same way, the direction,
the management and the remuneration of the personnel as well as the establishment of
the budget of the French and German partners is the sole responsibility of these
partners. Thus ARTE escapes control from the CSA, and is only subject to the control
of its partners who define by contract the rules of programming applicable to the
diffused programmes, written down in the bye-laws of the group.
III. Points for further discussion/current developments
There is no specific constitutional case law on issue on the remit of public service media
regarding new media services.
The question, however, is of major importance for the future of public service media,
and goes beyond pure economic interests. In this respect, it is important to note that the
Conseil constitutionnel, in its Decision n° 2009-580 of 10 June 2009 on the law
"création et Internet", confirmed "the importance taken by these [Internet] services for
the participation in democratic life and the expression of ideas and opinions.”44 As
mentioned, the Law on the New Public Service of Television follows the
recommendations made in 2008 by an ad hoc Commission on public television, which
proposed the implementation of a “global media” strategy for the public sector, meaning
that the France Télévisions group should be present on all existing and future
distribution media (mobile television, Internet, VoD). This explains, in particular, the
reorganisation of the group around a “unique company“, France Télévisions, whose
activity is centred on content.
42
Amended Article 47-5 of the Law of 30 September 1986.
43
See, however, the motion by the CSA of 23 May 2006 via-à-vis a decision by the Conseil d’Etat,
reported on in IRIS 2006-7:13, available at: http://merlin.obs.coe.int/iris/2006/7/article22.de.html
44
Reason of consideration n° 12.
82
In application of this strategy the draft new “cahier des charges” (book of
administrative regulations) of France Télévisions provides that the company
“publishes, co-publishes or distributes on demand audiovisual media services (catch-up
television, video on demand, etc.) which allow either a new delivery to the public of
programmes broadcast on television services, or the display of additional content or
specific content corresponding to the missions of France Télévisions. In particular, these
services will tend to offer an instantaneous and individualised display and access to all
kinds of programming: fiction, series, animation, documentaries, live shows, magazines,
information, sport, religious programmes, entertainment, cultural programmes, etc.
These on-demand audiovisual services will be directed at all sections of the public and will
be accessible on all electronic communication media and through adapted, existing or
future, transmission techniques, in order to respond to the evolution of uses. To this end
agreements can be entered into with public or private partners. These services will be
implemented under economic modalities and conditions of the market of on demand
audiovisual media services and their delivery conditioned by obtaining the corresponding
rights.”45
45
Article 23.
83
84
Germany
Julia Maus
I.
Introduction
1.
In line with the dual broadcasting system in Germany there is a co-existence of public
service and commercial broadcasters.
Public service broadcasting in Germany is operated by 11 public service broadcasting
corporations: ZDF, a national television broadcaster covering all the federal states
(Länder), “Deutsche Welle” (DW) which operates international radio and TV services,
and the nine regional ARD broadcasting corporations covering one or more federal
states. Apart from their own (regional) radio stations and television channels ("third
programmes"), the latter operate notably a joint nationwide television channel “Das
Erste”. Together with DW they form the “ARD”, Arbeitsgemeinschaft der öffentlichrechtlichen Rundfunkanstalten in Deutschland (Association of Public Service
Broadcasting Corporations in Germany). There are also nationwide radio channels
(“Deutschlandfunk” and “Deutschlandradio Kultur”) operated by “Deutschlandradio”,
in cooperation with ARD and ZDF.
In market terms “Das Erste”, the main nationwide television channel of ARD, and
ZDF’s main channel are the most important public service television channels.
Furthermore, there are other public service television channels of the corporations
associated in ARD, the so-called “third programmes”, which include regional
programmes, and various other joint channels of ARD and ZDF (and partly other
foreign public broadcasters). Mention should be made too of the additional digital
channels that ARD and ZDF offer (3 by each of them).
There are also the culture channel called “ARTE” (run by ARD, ZDF and France
Télévisions) - a German-French project; a channel especially for children called
“KI.KA” (ARD, ZDF); an information channel called “PHOENIX” (ARD, ZDF); and a
channel called “3 Sat” (ARD, ZDF, ORF, SRG) - a co-operation between the two
German public service broadcasters ARD and ZDF and the public broadcasters in
Austria and Switzerland.
Besides the public service channel numerous commercial channels exist, such as RTL,
Sat.1, Pro7, VOX, RTL II, Kabel 1, to name but some of the most popular ones. There
are also various commercial special interest channels, such as, in the area of music
(MTV, VIVA), sport (DSF, Eurosport), children/youth (Nick, SuperRTL) and news
(n-tv, N24).
85
Commercial, mostly local, radio programmes are also operated, in total more than 200.
Research in the year 2008 came to the following basic results for the (electronic) media
market1:
•
There is a total of 34.99 million households having TV reception, with cable
representing 18.66 million, satellite 14.93 million and DTT 1.4 million homes.
•
The ARD (“Das Erste”) represents in market terms the leading broadcasting
channel, but in total the audience share of the commercial broadcasting channels
was higher than the audience share of the public service broadcasting channels:
public service broadcasting channels had a total audience share per day of 43.6 %
(ARD: 13.4 %, ZDF: 13.1 %, “third programmes”: 13.2 %, KIKA: 1.3 %, 3 Sat:
1.1 %, PHOENIX: 0.9 %, ARTE: 0.6 %). Commercial broadcasting channels had an
audience share per day of app. 56 % (e.g. RTL: 11.7 %, Sat.1: 10.3 %, Pro7: 6.6 %).
•
The audience share between 8pm and 1am of the ARD was 14.8 %, of the ZDF
14.5%, of the “third programmes”14.4 %, of RTL 12.5 %, of Sat.1 7.4 %, of Pro7
7.1 % and of others 29.2 %.2
•
As regards radio the audience share of the public service radio programmes, in total
54 if the regionally transmitted and some nationwide ones are accumulated, was
52.4 % and the audience share of the commercial radio programmes, in total more
than 200, was 42.8 % per day.
•
TV is an important advertising medium with a share of 42.2 %. Newspapers have a
share of 26.3 %, magazines 21.2 %, radio 6.2 % and posters 3.9 %.3
•
The television advertising gross sales of ARD came to 244.1 mill. €, of ZDF to
167.7 mill. €, of RTL to 2,259.8 mill. €, of Sat.1 to 1,589.8 mill. €, and of Pro7 to
1,542.5 mill. €4 (Data from 2007).
•
People from 14 years of age onwards spent on average 176 minutes per day
listening to radio, 189 minutes watching TV, 4 minutes on video, 34 minutes
listening to sound carriers and 400 minutes per day in total on audiovisual media
consumption (PC included).5
1
Sources: “Arbeitsgemeinschaft Fernsehforschung” (AGF), GfK Group (Research company), TV
Panel (D+EU), published in “Media Perspektiven, Basisdaten 2008”.
2
Compared to the numbers of 2007 ARD and ZDF increased (slightly) in the share of market, the
“third programmes” as well as the commercial broadcasters lost (slightly), except of ProSieben, this
commercial broadcaster increased (slightly).
3
Source: Michael Heffler/Pamela Möbus, Der Werbemarkt 2007. Stabiles Wachstum bei leicht
abflauender Werbekonjunktur, printed at “Media Perspektiven 6/2008” and “Media Perspektiven,
Basisdaten 2008”.
4
Source: Michael Heffler/Pamela Möbus, op.cit.
5
Source: Media-Analyse, printed at “Media Perspektiven, Basisdaten 2008”.
86
The “Online/Internet study”6 conducted on behalf of ARD and ZDF came to the
following results for the year 2007:
•
62.7 % of the interviewed people (1,822 adults) use the internet at least
occasionally. Projected to the total German population this would amount to 40.8
million adult users.
•
95.8 % of the group 14 to 19 years old, but only 25.1 % of the 60 years and older
people use the internet at least occasionally.
•
While older people use the Internet primarily as a source of information, the
younger users are more interested in entertainment and use the internet more
playfully and in a comprehensive, multimedia-based way. 80 % of them use video
files at least occasionally, the percentage is only about 45 % if the reference group is
all adults (or rather people from 14 years of age upwards).
The study of the year 2008 gave the following results:
•
The percentage of internet users increased to 65.8 % (rising from 6.5 % in the year
1997); this would be 42.7 million internet users in the year 2008.
•
People from 14 years old upwards spent on average 225 minutes per day watching
TV, 186 minutes listening to the radio and 58 minutes per day online.
•
Teenagers between 14 and 19 years spent on average 100 minutes watching TV, 97
minutes listening to the radio and 120 minutes on the internet.
•
(On average) 55 % of the internet users from 14 years of age and 92 % of the 14 to
19 years old use video files at least occasionally.
In view of the growing importance of the internet and of new media services, the public
service broadcasters and their programmes are also present on the Internet. ARD and
ZDF both operate web portals where they offer audio and video content to download or
in the form of podcasts. The activity of public broadcasters in this area is discussed
intensively and therefore shall be dealt with in detail in part III of this report.
2.
a)
Constitutional law
The German media system after the Second World War is based on the idea of a free
press and a pluralistic broadcasting system independent of governmental and political
influence. The freedom of press and broadcasting is stipulated in Article 5, paragraph 1,
sentence 2 of the Constitution of 1949 (Grundgesetz, GG) and therefore forms the
starting point for the determination of the remit of public service media. Article 5 GG
reads as follows:
6
“ARD/ZDF Online Studie”: http://www.daserste.de/service/studie.asp.
87
“(1) Every person shall have the right to freely express and disseminate his opinions in
speech, writing and pictures, and to inform himself without hindrance from generally
accessible sources. Freedom of the press and freedom of reporting by means of broadcasts
and films shall be guaranteed. There shall be no censorship.
(2) These rights shall find their limits in the provisions of general laws, in provisions for
the protection of young persons, and in the right to personal honour.
(3) Arts and sciences, research and teaching shall be free. The freedom of teaching shall
not release any person from allegiance to the constitution.”7
The text of the Constitution guarantees the freedom of press and broadcasting in general
without referring specifically to either public service or commercial media.
Furthermore, it neither describes the concrete content of the freedom of press and
broadcasting nor specifies the organisation and structure of the media system. The
responsibility to define this in concrete terms is vested with the (ordinary) legislator,
who has large leeway in the implementation but is bound to the constitutional law
requirements. As per particulars given below, the Constitutional Court confirmed that
the freedom of broadcasting implies a guarantee of broadcasting to secure free,
comprehensive and truthfully presented information without governmental influence or
influence by particular private interests, with the objective of a high diversity of
opinions.
The legislator is required to concretise the freedom of broadcasting; in doing this, he
enjoys a considerable margin of discretion. He is not obliged to choose a particular
model for the broadcasting system, but the implementation has to be appropriate to put
into effect the guarantees of Article 5 GG and has to give consideration to the “serving”
function (“dienende Funktion”) of the freedom of broadcasting. The freedom of
broadcasting is not (primarily) perceived as a subjective freedom in the liberal sense.
These considerations are significant for the determination of legislative authority to
describe and concretise the remit of public service media: while on the one hand, the
constitutional objectives of the freedom of broadcasting - like the pluralism of opinion could require the codification of the remit of public service media, on the other hand,
the demand for the absence of governmental influence could limit the legislative
authority.
b)
Ordinary law
The competence to implement the freedom of broadcasting is vested with the federal
states of Germany. They decided to co-ordinate their legislation in the area of
broadcasting and signed an Interstate Treaty on Broadcasting and Telemedia
(“Rundfunkstaatsvertrag”), which is constantly adapted and amended. The Treaty was
last amended with effect as of 1 June 2009 implementing the 12th Amending Treaty (12.
Rundfunkänderungsstaatsvertrag).
7
Translation available at: http://www.bundestag.de/interakt/infomat/fremdsprachiges_material/
downloads/ggEn_download.pdf.
88
The Interstate Treaty on Broadcasting and Telemedia contains rules and regulations on
broadcasting and information society services, and establishes the dual broadcasting
system, which means the existence of both public service and commercial broadcasters.
Apart from the Interstate Treaty on Broadcasting and Telemedia, other interstate treaties
with respect to the funding of public service media (Rundfunkgebührenstaatsvertrag,
Rundfunkfinanzierungsstaatsvertrag) and the establishment of certain public service
broadcasting corporations were concluded (“ARD-Staatsvertrag”, “ZDF-Staatsvertrag”,
and “Staatsvertrag über das Deutschlandradio”). Moreover, there is the Interstate Treaty
on the protection of human dignity and the protection of minors.
At the level of federal states, the regulatory framework for broadcasting is laid down in
the specific media laws of the federal states or, in case certain federal states operate a
joint public service broadcasting corporation (“Mehrländeranstalten”, e.g. MDR, NDR,
SWR) or a joint media authority for commercial broadcasting (mabb; MA HSH), in
interstate treaties concluded between the federal states. The state media laws or
interstate treaties contain specific rules and regulations with respect to the
establishment, the programme, the remit and internal organisation of the public service
broadcasting corporations as well as specific rules for the commercial broadcasters,
their licensing as well as supervision.
aa)
Remit
Art. 11 of the Interstate Treaty on Broadcasting and Telemedia describes the remit of
public service broadcasting as follows:
“(1) The remit of public service broadcasting is, by producing and distributing its offers, to
act as a medium and a factor in the process of forming free individual and public opinion
and thereby to fulfil the democratic, social and cultural needs of the society. The public
service broadcasting corporations have to provide in their offers for an overview over the
international, European, national and regional events in all areas of life. They should
thereby support international understanding, European integration and the social cohesion
at the federal level and within the states. Their offers have to serve education, information,
advice, and entertainment. They have to offer in particular contributions in the field of
culture. Also in the case of entertainment, the offers should meet the standards of public
service.
(2) Public service broadcasting must, in fulfilling its mandate, take into consideration the
principles of objectivity and impartiality of reporting, plurality of opinion and the balance
of offerings and programming.”
A description of the remit in the context of new media services is to be found in Article
11d of the Interstate Treaty on Broadcasting and Telemedia. The further description of
the remit is given in statutes and guidelines and is up to the public service broadcasting
corporations (Article 11e of the Interstate Treaty on Broadcasting and Telemedia).
bb)
Structure/Organisation
The public service broadcasting is neither a public nor a private property. It is
established and organised as a non-profit public institution and is an independent legal
entity whose founder/guarantor is the individual federal state, or several federal states if
89
the broadcaster is vested with responsibility for the territory of more than one state
(“Mehrländeranstalten”, see above). The ARD is a group of nine independent
broadcasting corporations (plus international broadcasting, DW) that work together. The
responsible founders/guarantors of ZDF are all 16 federal states. The federal states have
to safeguard the technical, organisational, personal and financial conditions for the
broadcasting corporations to enable them to fulfil their public service remit. Within the
legal framework establishing them, the corporations are independent in the execution of
their remit. They have the right of self-administration and are independent in respect to
the structure and the management. They are autonomous for issuing of statutes and in
programming matters.
In general, the corporations have three main bodies: the broadcasting council, the
administrative board and the director-general. The broadcasting council is the highest
organ and has fundamental election, resolution and supervision functions. The council
nominates the director-general and elects the members of the administrative board. The
council constitutes the fundamental body of the corporation and is responsible for the
budget. The council is allowed to advise the director-general on programme questions
and to issue general guidelines for the programming; the (ex post) control of editorial
content is in the hands of this body. The council is composed of representatives of
relevant social groups and should reflect the pluralistic composition of society to avoid
partiality. The administrative board should also be composed in a pluralistic manner.
The main function of the board is to supervise the administrative/financial management
by the director-general. The director-general is responsible for the management. He runs
the corporation and is responsible for the whole activity, including the programming.
cc)
Funding
The federal states are the founders/guarantors of the corporations and so they are
obliged to provide funds in an amount that enables the respective corporation to fulfil its
remit and to broadcast its programmes8 (“Principle of funding of public broadcasting
which is in line with its functions”).9
A system of mixed funding is foreseen: the funding by licence fee is the fundamental
element whereas the funding by revenue from advertising, sponsorship and other
commercial activities represents the complementing element.
Article 13 of the Interstate Treaty on Broadcasting and Telemedia therefore reads as
follows:
“(1) Public service broadcasting is financed from licence fee, television and radio
advertising and other sources of income. The primary source of income is the licence fee.
Channels and offerings in return for a special payment are not permitted as part of the
public service remit with the exception of ancillary materials. Income from offering
premium rate telephone services may not be obtained.
8
Constitutional Court, BVerfGE 87, 181 (202). The judgments of the Constitutional Court are
available at: http://www.servat.unibe.ch/fallrecht/dfr_bverfg.html.
9
Friedrich Kübler, Medien, Menschenrechte
Massenkommunikation, Heidelberg, 2008, p. 235.
und
Demokratie
-
Das
Recht
der
90
(2) Keeping a device which allows for broadcasting reception continues to constitute the
obligation to pay the broadcasting fee”.10
The exertion of governmental or political influence must be prevented also as far as
funding is concerned. This, however, is difficult to achieve because the federal states,
which means the federal parliaments, are in charge of setting the amount of the
broadcasting fee - which is done through their ratification of the relevant Interstate
Treaties as negotiated by the heads of the federal states (convening as the “commission
on broadcasting”). Since decisions on the funding may have an impact on matters of
programming, this situation shows a sensitive relation between the programme
autonomy of the corporations and the economic responsibility of state bodies. Therefore
a framework and procedures are required that minimise the risk of governmental and
political influence. The legislator, here the federal parliaments, is not allowed to use the
process of determining broadcasting fee to control the programme planning or for
purposes of media policy.11 Furthermore, it is not permissible to deviate (upwards or
downwards) from the proposal of the KEF (a commission to determine the financial
needs of the PSBs) without justification. Especially this point is highly controversial
and has already twice been the subject of cases before the Constitutional Court.12
Article 7 of the Interstate Treaty on the Financing of Broadcasting (“Rundfunkfinanzierungsvertrag”) reads as follows:
“(1) The commission on broadcasting of the federal states receives from public
broadcasting corporations the announcement of needs as well as additional and explanatory
documents which are transmitted at the same time to the KEF.
(2) The KEF’s proposal for the broadcasting fee builds the basis of the federal
governments’ and parliaments’ decision. If a deviation from the proposal is planned, the
commission on broadcasting of the federal states has to discuss the deviation with the
broadcasting corporations and to include in this the KEF. The deviations have to be
justified”.13
dd)
Supervision
As noted above, the internal supervision of the management is exercised by the
administrative board, while the supervision of the programming activities is carried out
by the respective broadcasting council. The external supervision is exercised by the
governments of the federal states; however, as the freedom of broadcasting requires the
absence of governmental influence, the external supervision of the broadcasting
corporations, which are organised as public institutions, is of special relevance. The
Constitutional Court stated in the first broadcasting judgment14 that the public service
broadcasting corporations must be free of governmental influence and at the most under
governmental supervision limited to the question of legality of administrative activities.
Based on that statement, the supervision of the federal states is limited in essential
10
Translation available at: http://www.alm.de/fileadmin/Englisch/9_RAEStV_Englisch.pdf.
11
Constitutional Court, BVerfGE 90, 60 (94).
12
Constitutional Court, BVerfGE 90, 60 (107); 1 BvR 2270/05, judgment of 11 September 2007.
13
Unless otherwise specified, the following translations are provided by the author.
14
91
points: they only supervise compliance with the (media) law, not the suitability of
decisions. In some state media laws it is pointed out that the supervision includes no
right to interfere in matters and decisions concerning programming. Except for that, the
supervision relating to legality is not limited to specific areas. Although it is
controversial if and under what conditions the state can intervene in questions of
programme planning in case it claims a violation of law, the compliance with the
programme principles is - owing to the self-administration right and programme
autonomy of the public broadcasting corporations - up to the broadcasting corporations
themselves.
The supervision is allowed to monitor and to evaluate and therefore to participate in
several proceedings. The appropriate information has to be made available for the
supervision. In case the government claims a violation of the law it can advise the
corporations and oblige them to verify and correct the violation themselves. Such
“advice” has no binding character in contrast to an “order” which is an administrative
act and the next step in the procedure. The “order” can be the subject of a judicial
proceeding.
Moreover, it should be noted that the measures of the governmental supervision can
only be taken in case the internal supervision is not effective or sufficient.15 This
conforms to the “rule of subsidiarity”, which is applied in the area of the governmental
supervision of the public service broadcasting corporations.
II.
Independence of PSM
1.
The Constitutional Court concretised the meaning of freedom of broadcasting in
numerous decisions and clarified the limits but also the requirements for action by the
legislator.
According to the statements made in these decisions, the freedom of broadcasting
constitutes (also) a subjective freedom (an individual right), but, in the first place, it has
an objective function or character in the sense of a constitutional guarantee of
broadcasting. The freedom of broadcasting is construed as a freedom that exists for the
fulfilment of objectives which are in the public interest.
The freedom of broadcasting is a “serving freedom” (“dienende Freiheit”)16 in the sense
that it serves to realise the free, individual and public formation of opinion. For this
purpose the domestic programme offer overall should correspond to the existing
15
Bernd Radeck, Neue alte Rolle: Rundfunkräte in der Pflicht, in: „Rundfunk-Perspektiven, Festschrift
für Fritz Raff“, Schriftenreihe des Instituts für Europäisches Medienrecht, Band 37, 2008, p. 135.
16
92
diversity of opinions and should allow for all voices to be heard.17 The main
constitutional objective of the freedom of broadcasting is to cover as far as possible the
different opinions and to allow citizens to form their opinions freely. In this context,
public service broadcasting is acknowledged as being of paramount importance.
a)
aa)
In its judgments the Constitutional Court stated that the primary constitutional objective
of the freedom of broadcasting is to guarantee the free and comprehensive formation of
opinion.18 The formation of opinion takes place in a communicative process: it requires,
on the one hand, the freedom to express and spread opinions and, on the other hand, the
freedom of information.19 Article 5 paragraph 1 GG seeks to protect this communicative
process by guaranteeing freedom of expression as well as the freedom to spread
opinions and the freedom to receive information and thereby stipulates the objective
principle of freedom of expression. The freedom of broadcasting is a medium and factor
in this communicative process20 and constitutes a necessary addition to, and
reinforcement of, the general principle of the freedom of expression.21
Freedom of expression is constitutive for a free democratic constitutional order, because
it allows constant intellectual discussion, and the competition of opinions which is a
vital element of a free democratic constitutional order.22 Freedom of expression in a
sense is the foundation of any freedom, "the matrix, the indispensable condition of
nearly every other form of freedom".23 Only free public discussion of issues of general
public interest secures the free formation of public opinion. In a democratic state the
necessary formation of individual and public opinion is to be realised in a “pluralistic”
manner, i.e. in the competition between different and freely expressed views, primarily
by discourse and challenge.24 The press and broadcasting are the two most important
instruments for the formation of opinion.25
Thus the freedom of broadcasting - as an addition to, and reinforcement of, the general
principle of the freedom of expression - and as a main instrument to secure the
constitutional objective of pluralism26 is an essential condition for the free democratic
17
18
Constitutional Court, judgment of 11 September 2007, paragraph 115, referring to BVerfGE 57, 295
(319); 73, 118 (152); 107, 299 (332); 114, 371 (386).
19
20
Constitutional Court, BVerfGE 12, 205 (260), BVerfGE 57, 295 (320).
21
22
BVerfGE 7, 198 (208) referring to BVerfGE 5, 85 (205).
23
BVerfGE 7, 198 (208) citing Cardozo.
24
25
26
Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 117 (118).
93
constitutional order (“freiheitlich demokratische Grundordnung”) which is stipulated by
Article 20 GG:
“(1) The Federal Republic of Germany is a democratic and social federal state.
(2) All state authority is derived from the people. It shall be exercised by the people
through elections and other votes and through specific legislative, executive and judicial
bodies. [...]”27
As the power is executed by the people, it is essential to give them the necessary
information so that they are able to form an opinion on the basis of which they can act.
The formation of opinion takes place through the examination of a topic of social
relevance involving the present views on it. Owing to the communicative importance of
broadcasting in the public discussion, free public formation of opinion can only succeed
as far as the public is freely, comprehensively and truthfully informed by the
programmes broadcast.28 The information should take into account as many present
opinions as possible to achieve an offer of “balanced diversity” (“gleichgewichtige
Vielfalt”)29 for the citizens to inform themselves. Only on the basis of all relevant facts
can one’s own opinion be formed and discussed with others. The delivery of
information for an intellectual discussion - instead of the delivery of preconceived
opinions - is a major factor in the formation of individual opinion and, subsequently, for
the formation of public opinion in a democracy.
bb)
Contribution to culture and education
By defining the content of the “functional mandate” which has to be fulfilled by public
service broadcasting (see in detail chapter II. 2 a)) the Court stated that public service
broadcasters’ “functional mandate” is not only of major importance for the formation of
opinion, it includes entertainment and information programmes, and also entails a
cultural responsibility. To cover the necessary whole range of information it is,
according to the Constitutional Court, indispensable that superior cultural programmes
representing cultural tendencies and cultural groups, even minority groups, are also
broadcast.30
cc)
Contribution to freedom of expression and media freedom
As already noted, freedom of broadcasting is a necessary addition to, and reinforcement
of, the general principle of freedom of opinion which consists of freedom of expression
and freedom of information. In the context of this communicative process broadcasting
acts as an intermediary.31 As a mass medium it influences the connection between the
27
Official English translation, available at http://www.bundestag.de/interakt/infomat/fremdsprachiges_
material/downloads/ggEn_download.pdf.
28
29
Constitutional Court, BVerfGE 83, 238 (316); 87, 181 (198).
30
Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 122 referring to
BVerfGE 73, 108 (158); 74, 297 (324); 87, 181 (199); 90, 60 (90).
31
94
people and the state, control of the state by the people and the integration of the
individual into society. The Constitutional Court attributes to broadcasting a wide reach,
topicality and striking impact.
“Its widespread effect is shown by the reach and the possibility to influence large parts of
the population. The audiovisual mass media have for many years had a great impact on the
daily routine of most of the citizens. The topicality (...) results of the possibility to transmit
contents fast and even in real time to recipients. The extraordinary suggestive power
results (...) from the possibility to combine the different forms of communication like text
and sound and (...) additionally moving images and makes the programme content appear
very authentic”.32
Broadcasting in general is not only a medium but also a major factor in the permanent
process of the public formation of opinion.33
b)
(Explicitly named parts of) the remit (general description)
The Constitutional Court introduced the term “traditional mission” to describe the role
and remit of (public service) broadcasting and pointed out its role for the formation of
opinion that is realised in nearly all areas of life where a process of communication can
take place.
An opinion is formed not only on the basis of news broadcast, political comment and
programmes about contemporary, future and historical political problems but also on
the basis of radio plays, musical performances, cabaret and even the scenario of a
performance.34 The remit of mass medium broadcasting includes all elements of the
broadcasting programme, thus information, criticism and comments about
contemporary political events (current affairs), cultural events in a wide sense, cultural
and educational performances - concerts, television drama, theatre and scientific
presentations - scholarly and further educational programmes (“school television”) and
entertainment programmes (movies, cabaret, revue, sport, show business).35 The
formation of opinion is based on matters of public interest without the possibility to
determine objective criteria for relevance or irrelevance.36 Therefore, the traditional
mission of broadcasting includes information with no restriction on the subject-matter
about all areas of life based on editorial criteria.37
As already mentioned above, the “traditional mission” of broadcasting also includes
cultural responsibility. To cover the necessary whole range of information it is,
according to the Constitutional Court, indispensable that also superior/highly cultural
programmes representing cultural tendencies and cultural groups, even minority groups,
are broadcast. As those programmes often occasion high costs and at the same time
(might) only reach a limited number of viewers, the Constitutional Court concluded that
32
Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 116.
33
34
35
36
37
95
commercial broadcasters will not be interested in offering those programmes, and saw
primarily the public service media being entrusted with a remit of responsibility for
cultural affairs.
The development of the concept “traditional mission” is based on the interpretation of
freedom of broadcasting as a “serving” freedom, in the sense of serving freedom of
opinion, and guaranteeing the free formation of will. The decision as to who is entrusted
with the obligation is only made indirectly by the Constitutional Court. On the basis of
the serving character of the freedom of broadcasting it states that the legislator is
obliged to establish a broadcasting system that is not only free of governmental
influence but does also comply with the “serving” function of the freedom of
broadcasting.38 Therefore, the parties required to serve the freedom of opinion and the
free formation of will are both the public service and the commercial broadcasters.39
But even if the “traditional mission” of broadcasting does not explicitly and exclusively
target public service media, it has to be recalled that the term was introduced by the
Constitutional Court at a time when only public service broadcasters operated on the
German broadcasting market. The close connection between the mission and the public
service media is therefore evident.
The launch of commercial broadcasters in the 1980s is associated with a decision of the
Constitutional Court of 16 June 1981 (3rd broadcasting judgment). The Constitutional
Court confirmed that the Constitution does not dictate a certain broadcasting system, but
implies an obligation on the legislator to establish a broadcasting system that complies
with the requirements of freedom of broadcasting. It was pointed out that the legislator
enjoys a considerable margin of discretion in the implementation of freedom of
broadcasting. Nevertheless, he has to establish a “positive framework” (“positive
Ordnung”) that meets the requirements of the freedom of broadcasting. The margin of
discretion enjoyed by the legislator when devising the positive framework would,
therefore, include the option not to foresee the introduction of commercial broadcasting.
But this means too that commercial broadcasting is certainly not per se forbidden by the
Constitution, but has to be founded on and regulated by ordinary law.40
Subsequently, the dual broadcasting system was established by the legislator and was
consequently followed by jurisprudence of the Constitutional Court that concretised the
specific remit of public service media in the dual broadcasting system. The
Constitutional Court entrusts the public service media - on the premise that the
legislator decided to establish a dual broadcasting system - with the “provision of basic
services” (“Grundversorgung”) meaning, with regard to content, the provision of
programmes whose subject matter, way of treatment and performance comply with all
38
39
Ulrich Stelkens, Öffentlich-rechtliche Rundfunkanstalten: Herrenlose Diener oder Verwaltungsträger?, p. 10.
40
As to the inherent connection between the existence of public service broadcasting and the
possibility to introduce and maintain commercial broadcasting in a dual broadcasting system, see
below chapter II 2. b).
96
aspects and obligations of the “traditional mission” including the cultural responsibility
(4th broadcasting judgment, discussed in detail in part II. 2. a)).41
The “traditional mission” of broadcasting therefore constitutes a term to describe the
programme element of the “mandate to provide basic services”. The public service
broadcasters explicitly have the duty to fulfil the obligation “to provide basic services”.
In its more recent judgments, and particularly in the judgment of 11 September 2007,
the Constitutional Court has abandoned the use of the term “Grundversorgung” and
instead opted for the notion of “Funktionsauftrag” (“functional mandate”). In respect of
the commercial broadcasters the Constitutional Court states that their dependence on
advertising revenue implies a need to use recent, mass appeal programmes at costs
which are as low as possible, and concludes that commercial broadcasters will not be
able to offer a programme of “balanced diversity”. This conclusion is valid in particular
for superior cultural programmes which require a high budget.
c)
With regard to this jurisprudence of the Constitutional Court it can be noted that the
freedom of broadcasting is not only interpreted as a subjective right of broadcasting,
but, moreover and primarily, as a constitutional guarantee of a certain offer of
audiovisual programmes. Deviating from the 3rd broadcasting judgment, the 4th
broadcasting judgment obliges above all the public service broadcasters to fulfil the
requirements of this guarantee.
The contribution of the freedom of broadcasting to democracy and to the freedom of
expression as well as to the free, individual and public formation of opinion requires the
absence of governmental influence and vests the public service broadcasting
corporations with a subjective right to plan their programme autonomously and based
on editorial grounds. According to that premise the Constitutional Court confirmed in
its 1st broadcasting judgment in 1961 that Article 5 GG requires that broadcasting is not
left in the hands of the state or a social group. Notwithstanding the possibility for
governmental or parliamentary representatives to participate, among others, in the
broadcasters’ bodies (e.g. broadcasting council), it is forbidden for the state to control
broadcasters directly or indirectly.
In this respect, as for the “classic” fundamental freedoms, the freedom of broadcasting
has a defensive character.
aa)
Independence
The Court confirmed recently in a judgment regarding a political party’s (indirect)
stake-holding in a commercial broadcasting organisation42 the principle of absence of
governmental as well as one-sided private influence in the area of commercial and
public service broadcasting. It acknowledged however that the requirements for the
41
42
Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008.
97
legislator to establish a framework for the structure of commercial broadcasting are not
the same as in respect of public service broadcasting.43
The Court states that the obligation on the legislator to implement freedom of
broadcasting serves to safeguard the diversity of opinions.44 It further points out that
Article 5 paragraph 1 sentence 2 GG requires the absence of governmental influence
which excludes the possibility that the state dominates directly or indirectly a
broadcasting corporation or company.45 The Court further states that the freedom from
governmental influence may also be affected by an involvement of political parties (see
in detail chapter II.2.b)).46 It adds:
“The rights of free communication ever since were directed against a patronising and
dominant behaviour of the state and still are applied to reject governmental influence in
media coverage”.47
The state is thus not allowed to be a broadcasting operator48 owing to the risk of exertion
of political influence; nevertheless, the state is indispensable as a guarantor of
comprehensive freedom of broadcasting and is thus obliged to take measures in order to
guarantee the establishment or maintenance of the freedom of broadcasting.49
To secure pluralism it is furthermore necessary to avoid one-sided influence resulting
from a concentration of media power.50 Consequently broadcasting should not be left in
the hands of one or more social groups.51
bb)
In the first place freedom of broadcasting means freedom of programming.52 It ensures
that the programming is based on editorial criteria. Therefore, the public service
broadcasters should define - on the basis of professional journalistic criteria - by and for
themselves what kind of programming is required by the remit. Broadcasting should
therefore not be used for other than editorial purposes.53
43
Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 89.
44
45
46
47
Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 95 referring to BVerfGE
57, 295 (320); 90, 60 (88).
48
Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 95, referring to BVerfGE
12, 205 (263); 83, 238 (330); 90, 60 (88).
49
50
57, 295 (323); 73, 118 (160); 95, 163 (172); 97, 228 (258); 114, 371 (389).
51
Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 94, referring to BVerfGE
73, 118 (153).
52
53
98
In view of these statements, a determination by the legislator that the public service
broadcasting corporations must fulfil the “traditional mission” by providing certain,
specified programmes (going beyond a broad description of the “functional mandate”)
would therefore interfere with the subjective right of the public broadcasting
corporations of autonomous programming guaranteed by the freedom of broadcasting as
well as with the idea of an absence of governmental influence.
cc)
Guarantee of existence and development
The constitutional guarantee of a certain offer of programmes which, according to the
Constitutional Court, have to be provided by the public service broadcasters leads to a
guarantee of existence and development (“Bestands- und Entwicklungsgarantie”) for the
public service media, at least as long as commercial broadcasting does not fulfil the
requirements of the “traditional mission” of broadcasting.54
The deficit of the commercial broadcasters in fulfilling such requirements is seen as a
structural, immanent and permanent one which is due to their dependence on market
processes and advertising revenue. The guarantee is also based on the constitutional
attribution of programming autonomy. The guarantee of existence and development
therefore means the safeguarding of the conditions that permit the fulfilment of the
“functional mandate” by the public service broadcasters towards the citizens.55
Owing to the fast development of media markets, and especially broadcasting
technology, not only a guarantee of the existence but also a guarantee of development is
necessary for public service broadcasting to perform its function and provide the public
with services reflecting the “functional mandate”. The guarantee is therefore not
restricted to the traditional technology of terrestrial transmission but is also valid for the
transmission through other technologies if these new technologies are used in addition
to or instead of the traditional technology. The same applies to the programme offer of
the public service broadcasters, which needs to stay open for new public interests as
well as new content and formats. The provision of services in the area of the “functional
mandate” is open in respect of its content and dynamic, and therefore only bound to the
function which broadcasting has to fulfil in the context of the protected communication
process according to Article 5 GG.
The guarantee of existence and development turns out also to be a guarantee of funding
in terms of a guaranteed financial support as far as this is necessary for the public
service broadcaster to fulfil its “functional mandate”.
dd)
Guarantee of funding
Although Article 5 GG does not imply a particular arrangement in respect of the
funding, the necessity to finance public broadcasting results from the constitutional
54
Constitutional Court, BVerfGE 83, 238 (299); Karl-Eberhard Hain, „Die öffentlich-rechtlichen
Anstalten auf dem Weg in die digitale Welt“, in Stern/Prütting/Peifer: Neue Mediendienste und
öffentlich-rechtlicher Rundfunk, München, 2009, p. 16.
55
99
requirement on public broadcasters to fulfil their function in the dual broadcasting
system. The constitutional admissibility of the present dual system, in which the
commercial channels are subject to lower requirements than the public service channels,
depends on the proper functioning of public service broadcasting. Consequently the
Constitutional Court deduced a guarantee of existence and development for public
service broadcasting56 which also includes the guarantee of funding and therefore
entitles the public service broadcasters to receive the necessary funds to fulfil their
remit/mission.57
The system to be established to determine the funding should also ensure that the
relevant decision is not used to exert political influence on the programming. Therefore,
the funding has to be functional, i.e. the manner and modality of funding have to be
appropriate in respect of the function of public service broadcasting.58 The
Constitutional Court considers funding by broadcasting licence fee the appropriate way
of funding.59 Funding by licence fee permits the public service broadcasters to offer a
programme output that complies with the constitutional requirements in respect of the
subjects and the content (“balanced diversity”), independent from audience ratings and
commercial contracts on the provision of advertising space. The possibility to perform
this function and to secure the “functional mandate” serves as the justification for the
funding by public fee.60
Other financing sources are permitted besides the broadcasting licence fee (such as
advertising revenue), but because of their narrowing/restrictive effect on programming
and diversity, they should not eclipse the funding through fee.61 Taking into account the
risks resulting from the additional funding by advertising revenue - such as a possible
consideration of the advertising industry’s interests, a possible increasingly mass-appeal
orientation of the programming and a possible erosion of the distinctiveness of public
service programmes - the Constitutional Court states in its recent second judgment on
licence fee62 the necessity to verify constantly if and how far this kind of (additional)
funding can still be justified by the expectation of strengthening public service
broadcasting’s independence from the state.63 In this context the Court points out the
responsibility of the legislator to take the necessary precautions in order to guarantee
that public service broadcasting can fulfil its remit without being used for other than
media purposes, for example of a political or an economic nature.64
56
Constitutional Court, BVerfGE 83, 238 (299); Karl-Eberhard Hain, in: “Neue Mediendienste und
öffentlich-rechtlicher Rundfunk”, op. cit., p. 16.
57
Constitutional Court, BVerfGE 87, 181 (198); 90, 60 (89), (90), (91).
58
59
Constitutional Court, BVerfGE 90, 60 (91); 73, 118 (158); 87, 181 (199).
60
61
BVerfGE 83, 238, (311); 87, 181,(199); 90, 60, (91).
62
Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007.
63
64
100
2.
a)
The Constitutional Court introduced the term “functional mandate”
(“Funktionsauftrag”) in its latest, second judgment related to the licence fee, handed
down in 200765, to describe the remit of public service broadcasting. It thereby replaced
the term “provision of basic services” (“Grundversorgung”) which was previously used
by the Court.
The Court re-emphasises that the freedom of broadcasting laid down in Article 5
paragraph 1 sentence 2 GG serves the free, individual and public formation of opinion
and contains an obligation to guarantee the freedom of broadcasting.66 The task for the
legislator is to strive for a framework which guarantees that the diversity of the present
opinions is represented by broadcasting to the greatest possible extent.67
The Court stresses the importance of pluralism in a democratic system, and justifies its
decision to entrust broadcasting with the “functional mandate” by the outstanding
significance it has among the (mass) media.68 The Court re-emphasises that audiovisual
media have a wide reach, topicality and striking impact on citizens and that for many
years they have occupied a large part of the daily routine of most of them.69 It further reemphasises the actuality and the extraordinary suggestive power of the audiovisual
media.70
The regulatory framework should enable public service broadcasting to fulfil its
“functional mandate”.71
As the definition of the “functional mandate” complies with the definition of the
“provision of basic services”, in the following only the term “functional mandate” will
be used even if reference is made to earlier judgments of the Courts in which it still
referred to the “provision of basic services”.
The “functional mandate” requires that at least the public service providers ensure a
scale of information that allows a free formation of opinion so that the goal of freedom
of broadcasting is fulfilled. Presenting the population with necessary views for the
formation of opinion should not be left only to commercial operators and the “free
market” because this would entail the danger of a one-sided presentation owing to
65
66
67
68
BVerfGE 31, 314 (325); 90, 60 (87); 97, 228 (256); 103, 44 (74), 114, 371 (387).
69
70
71
BVerfGE 73, 108 (158); 74, 297 (324); 87, 181 (199); 90, 60 (90).
101
financial dependence on market processes, advertising and sponsoring revenue and
market attractiveness. Accordingly, besides the danger of influenced programming there
exists the danger that the broadcasters commit the programming too much to present
preferences of the recipients and, in doing so, neglect other topics of social relevance.72
The choice to entrust public service broadcasters with the indispensable task of offering
a certain scale and quality of programmes results from the fact that they are largely
independent of market processes and advertising and sponsoring revenue, which is a
result of the public funding that public service broadcasting corporations receive via
licence fee paid by the holders of reception devices for broadcasting. The exceptional
position of the public service broadcasting corporations hereby created allows them to
develop a programme offer covering all areas of the traditional remit of broadcasting
without being limited to current, sometimes fleeting preferences of the audience.
Furthermore, their independence guarantees the objectivity and neutrality of the
opinions presented to the greatest possible extent.
The public service broadcasters are obliged to offer programmes of “balanced diversity”
and to fulfil the remit of broadcasting in its entirety through the conception of their
programming. Public service broadcasters are prohibited from following a certain
tendency; they rather have to be at the disposal of a wide variety of tendencies.73
The Constitutional Court points out that only on the premise that public service
broadcasters are able to meet those requirements, and to remain competitive with the
commercial broadcasters, is the present broadcasting regime, in which commercial
broadcasting is subject to less strict requirements than public service broadcasting,
acceptable under constitutional law.74
The Court clarified that the mandate of public service broadcasting is not considered to
be a minimum provision; nor does it constitute a task-sharing between public service
and commercial broadcasters in the sense that the public service broadcasters are limited
to the information, cultural or educational part of the programming or would only be
entitled to broadcast the (more) demanding programmes. A division or assignment in
respect of certain programme content or formats is neither intended nor expedient for
the objective of presenting a wide diversity of opinion. Public service broadcasters are
not restricted to offering programmes that commercial broadcasters would not usually
offer. It is rather about the provision of programmes complying with the “traditional
remit” of broadcasting, which includes not only its role for the formation of opinion and
the political will, the provision of entertainment, and of information programmes going
beyond news reporting, but also its cultural responsibility.75 Therefore, the whole range
of programme genres is covered by the notion.
The legislator is not allowed to take measures which limit and shorten the possibility of
extending the programmes for the purpose of the formation of opinion:
72
73
74
BVerfGE 73, 118 (158), (171); 74, 297 (325); 83, 238 (297), (316); 90, 60 (90).
75
Constitutional Court, BVerfGE 73, 118 (158); BVerfGE 74, 297 (324).
102
“Also beyond the ‘provision of basic services’ by public service broadcasting the legislator
has to allow in principle the free provision of programmes under the same conditions. In
this respect the programmes of public service broadcasters contribute to the enlargement
and the diversity of the programme offer, they enable and enlarge the editorial competition
among different media as a vital element of the freedom of opinion”.76
Also special interest programmes are permitted in fulfilment of the “functional
mandate”. Special interest programmes are limited to certain topics and thus not capable
of offering comprehensive information and formation of opinion, which is the objective
of the “functional mandate”. But Article 5 GG also includes the task of guaranteeing the
diverse offer of programmes, which enables the legislator to assign the public service
broadcasting corporations with the provision of additional programmes that would not or not with the requested quality - be accomplished with more reliance on the forces of
the market.77 According to the Constitutional Court, programmes in the area of culture
and education can be expected from the public service broadcasting corporations in a
way in which they cannot be expected from commercial broadcasters.
“Consequently public broadcasting corporations cannot only increase the range of the
whole programme offer, but also bring in an essential element for the cultural life in the
Federal Republic of Germany and realise in this area the traditional remit of
broadcasting”.78
In this context public service broadcasting fills a gap, but as the Constitutional Court
points out that public service broadcasters are not limited to a minimal provision, the
function to fill gaps shall not be misinterpreted as meaning that public service
broadcasting would be expected, or would be restricted, to taking place only where
commercial broadcasters are not active.
This interpretation of the remit of public service broadcasting is maintained and
confirmed by the latest judgment of the Constitutional Court regarding the licence fee.79
By introducing the new term “functional mandate” the Court stresses the public service
broadcasters' role as a counter-weight to the commercial broadcasters and that public
service broadcasting - in fulfilment of its remit - has to remain competitive with the
commercial broadcasters.80 In other words, the Court reaffirms the idea of promoting the
diversity of opinions also by editorial competition between public and commercial
broadcasters.
76
77
78
79
Even though some commentators argued that by introducing the term “functional mandate” the
Court divested itself of the discussion on what kind of programming, formats and channels should
be included by the remit to provide “basic services”; or, on the contrary, what would an “additional
remit”. In other words, the question was whether additional programmes would be foreseen to be
provided only by commercial broadcasters or whether such offers could also be provided by public
service broadcasters. In this latter case, the further question that would arise was whether the
provision of additional programmes was also covered by the guarantee of funding or whether such
offers would have to be financed separately. See Stephan Ory in: “Medienrecht, Praxishandbuch”,
Teil 4, Kapitel 1, § 1, Rn 28, (p. 1287).
80
103
The concept of a “functional mandate” has to be seen in relation to the demand that
public service broadcasters should be able to offer programmes and activities also
beyond the “provision of basic services” under largely the same conditions as
commercial broadcasters. Only in this case would the public service broadcasters be
able to fulfil their function as a competitor and counter-weight to the commercial
broadcasters for the purpose of promoting diversity of opinions.
Public service and commercial broadcasters compete with each other, which has a
stimulating and positive effect on the overall domestic offer and therefore strengthens
the diversity of opinions. To advance and allow the diversity of opinions it is necessary
for different opinions to compete and interact with each other. Consequently, not only
commercial broadcasters should compete with public service broadcasters, but also vice
versa. It would be contradictory to the purpose of the freedom of broadcasting and to the
present dual broadcasting system (chosen by the legislator) to prohibit specifically the
broadcasters obliged to meet the comparatively highest standards of neutrality and
impartiality - the public service broadcasters - from competing with other broadcasters.
It has to be noted that it is not completely clear whether the new term “functional
mandate” simply replaces the former term “provision of basic services”, or whether it
develops the latter term further, and complements it, by highlighting this element of
competition.81
In its latest judgment regarding the licence fee the Court also points out that the
mandate is dynamically related to the function of broadcasting, which means that the
programme offer has to stay open for new content, formats and genres as well as for
new ways of distribution.82
b)
Article 5 GG requires the establishment of a positive framework by the legislator, which
ensures that the diversity of themes and opinions is represented. For this purpose the
enactment of substantial, organisational and procedural rules, which are geared to the
remit of broadcasting and fulfil the requirements of Article 5, is necessary and, thus, has
to be done by the legislator. Under the premise that the legislator decided to establish a
dual broadcasting system, which is not an obligatory predetermined choice, the
Constitutional Court sets an obligation on the public service broadcasters to fulfil the
“functional mandate” and authorises the legislator to frame the mandate at an abstract
level.
81
Bernd Holznagel, “Gutachten zum spezifischen Funktionsauftrag des ZDF”, 1999, p. 14. According
to a view in literature it cannot be verified that there is a structural change induced by the “new”
concept now applied exclusively by the Court, but rather a change that resulted from the
establishment of the dual broadcasting system. The “provision of basic services” was discussed in
the context of the requirements on the implementation of the dual system, whereas the “functional
mandate” includes the question of whether certain activities are covered by the remit of public
service broadcasting in the established dual broadcasting system.
82
104
The Court constantly states that the lower requirements for commercial broadcasting are
only justified as far as public service broadcasters are able to meet their higher
requirements and fulfil their “functional mandate”83; this leads to the conclusion that in
the present dual broadcasting system - in which the commercial broadcasters are subject
to lower requirements than the public service broadcasters - the legislator is obliged to
take the necessary precautions regarding technical, organisational, personal and
financial conditions in order to enable public service broadcasting to fulfil its
“functional mandate”. This satisfies the requirements resulting from the guarantee of
existence and development for public service broadcasting.84
On the one hand, owing to the constitutional guarantee of a certain offer of programmes
(“functional mandate”) and the resulting obligation on the legislator to safeguard this
guarantee by establishing a positive framework, the parliament is both authorised and
obliged to issue parameters and requirements of the programme as far as it concerns the
”functional mandate”. On the other hand, owing to the constitutional guarantee of the
freedom of programming, the powers of the parliament are also limited to this
obligation; the legislator is not allowed to address any further requirements to the
(public service) broadcasters regarding their programmes in respect to both its content
or form.
The legislator therefore is allowed to set in abstract form the function of public service
broadcasting, but the determination of what the constitutional function of public service
broadcasting requires in detail lies - owing to the programme autonomy - in the
responsibility of the broadcasting corporations themselves.85 The legislator may still be
allowed to set guidelines, but he cannot prescribe specific programmes. Abstract
guidelines, which do not result in an obligation on the public service broadcasting
corporations to provide predetermined programmes or content, are therefore possible.
Furthermore, it is controversial whether the legislator or the public service broadcasting
corporations themselves have the right to decide how many programmes are necessary
to fulfil the remit of public broadcasting. The Constitutional Court authorised the public
service broadcasting corporations to decide on the number of programme services, but
at the same time did not lay down a prohibition on the legislator to set the maximum
number of programme services.86
Also the funding decisions are subject to certain limits: as they can have a major effect
on the programming, the legislator’s decision on the financing of public broadcasting
has to remain strictly bound to its purpose. Funding is one of the basic conditions for
realising the freedom of broadcasting. The programming depends on the State’s funding
decisions, namely on the determination of the level of the licence fee as the primary
source of revenue, which is why funding decisions can represent an effective way to
influence the programming indirectly. To minimise this risk, such decisions may only
83
BVerfGE 73, 118 (158 et seq., 171); 74, 297, (325); 83, 238, (297, 316); 90, 60, (90).
84
85
86
Constitutional Court, BVerfGE 87, 181 (201); 90, 60 (91) and confirmed in the judgment of 11
September 2007, paragraph 124, 125.
105
follow the purpose of guaranteeing the (financial) capability of the public service
broadcasters to provide “basic services” and to fulfil the public service remit.87 The
determination of the broadcasting fee shall not be used for purposes of media policy or
programme control.88
Within the constitutional limits the legislator is allowed to take steering or media policy
decisions (to concretise the remit of public service media), but he is not allowed to take
(and disguise) such steps in the context of the decisions on funding. In other words,
decisions on the definition of the public service remit and decisions on the public
funding need to be separated. Decisions determining the level of the licence fee must
respect the principles of neutrality and "relatedness" (Akzessorietät) with regard to
programming, i.e. funding dependent on, and bound by, the programming. The
determination has to be based on the programme decisions made by the public
broadcasting corporations with due consideration of economic efficiency and in
accordance with their remit, which results from Article 5 GG and is concretised by
ordinary law. The legislator is not allowed to deviate from these decisions only because
of its own (different) ideas of an appropriate programme output. The legislator has to
enable the funding of the necessary programmes to fulfil the remit of public service
broadcasting.89
Furthermore, the legislator has to set a procedure for determining the licence fee and to
take precautions in order to guarantee that the above-mentioned conditions are met.
Therefore a multi-step and co-operative procedural model, which considers the specific
characteristics of each step and limits the possibilities of political influence, seems
appropriate. Since the decision as to what the remit requires in respect of the content of
the programmes is for the public service broadcasting corporations, their role in the
process of determining the licence fee cannot be limited to a passive one. The procedure
has to ensure that the decision on the level of the fee complies with the programme
decisions made by the public service broadcasting corporations and does not disregard
the financial effects.
The obligation of the legislator to take the necessary precautions in order to enable
public service broadcasting to fulfil its “functional mandate” is only one, even though a
very important, aspect of the general requirement, resulting from Article 5 paragraph 1
GG, to establish a positive framework, which aims at ensuring that the diversity of
topics and opinions is represented. Since commercial broadcasting too serves the free
and public formation of opinion, the legislator is obliged to implement the freedom of
broadcasting by a positive framework which ensures pluralism also in the area of
commercial broadcasting.90 As already mentioned, the guarantee of pluralism requires
the absence of governmental and one-sided influence. One may wonder to what extent
this requirement is valid in the case of commercial broadcasters and whether it justifies
a restriction on political parties holding shares in a commercial broadcasting
87
Constitutional Court, BVerfGE 90, 60 (93, 94).
88
Constitutional Court, BVerfGE 90, 60 (93, 94).
89
90
106
organisation. In this context the Court confirmed in its judgment of 12 March 200891
(already mentioned in chapter II.1.c)) the power of the legislator to lay down restrictive
rules regarding political parties’ share-holding in commercial broadcasters. However, it
considered the absolute prohibition of holding shares to be an illegitimate
implementation of the freedom of broadcasting which violated Article 5 paragraph 1
sentence 2 (in connection with Article 21 paragraph 1 GG which stipulates the political
parties’ function of participating in the democratic process of the formation of political
will in society).
The Court states that the requirements for the legislator to establish a framework for the
structure of commercial broadcasting are not the same as in respect of public service
broadcasting.92 Article 5 paragraph 1 sentence 2 GG does not require an internally
pluralistic (“binnenpluralistische”) organisation of the commercial broadcasters,
because this would eliminate the fundamental element of private and autonomous
organisation and decision-making of commercial broadcasting.93 The Court therefore
considers it admissible to refuse political parties an authorisation to operate commercial
broadcasting in case they would be able to exercise dominant influence on the
programming and the programmes’ contents94, but it did not hold admissible the
absolute prohibition of any participation. It argued that such prohibition could not be
justified as an adequate promotion of the freedom of broadcasting’s objectives, namely
the guarantee of pluralism and absence of governmental influence.95
c)
(Limits for) supervision (regarding economic behaviour and/or content-related
output) by (external) supervisory bodies
The external supervisory body is - as mentioned above in chapter I. 2. b) dd) - limited to
supervising the compliance with (media) law and is not allowed to control the suitability
of decisions. The supervisory body furthermore has to respect the “principle of
subsidiarity”.
Although media law describes (inter alia) the general principles of the programming and
therefore relates to the programme content, the supervisory body only has limited
powers to control the compliance of the programming with these principles. The general
expressions of the programme guidelines and principles, for example “neutrality and
objectivity” or “truthful reporting” or “contribution to the realisation of the free
democratic constitutional order”, as well as the “traditional” and “functional” mandate
and the “provision of basic services” of public service broadcasting, need to be
interpreted. As the Constitutional Court grants the public service broadcasting
corporations programme autonomy, it is doubtful whether the external supervisory body
91
Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008.
92
93
73, 118 (171).
94
95
107
has any right to control and intervene in programme decisions of the public service
broadcasting corporations.
According to one view, the public service broadcasting corporations should be the only
ones responsible for deciding on matters of programme planning and on how to thereby
fulfil their function.96 Another view prefers to see the legislator entrusted with the
responsibility to concretise the aforementioned terms and to enable, therefore,
supervision regarding compliance with concrete rules.97 This would lead to a situation
where the scope of interpretation would be very limited for the public service
broadcasting corporations and supervision would have a large impact on their
programme planning. In view of the constitutional principle of programme autonomy,
the majority of scholars seem to take the view that public service broadcasting
corporations have prerogative to decide on the content and extent of their remit and on
how to fulfil it.98 The latter view would be in line with the statement of the
Constitutional Court that the public service broadcasting corporations have the right to
decide on the necessary content and forms of the programmes to fulfil the “functional
mandate”, including the decision about the necessary broadcasting time and therefore
the number and extent of the necessary programme services, without denying the
possibility of the legislator to set abstract rules in respect of the function of public
service broadcasting.99 Accordingly, the competence of the external supervisory bodies
to intervene in programme matters is restricted; this follows from the broadcasting
corporations’ right to self-administration, their programme autonomy and the related
limits for the legislator, who is entitled to describe the function of public service
broadcasting only on an abstract level.100
An administrative court, in a 1986 judgment, stated in this context that only facts of the
case, for which concrete rules exist, which themselves contain determinable legal duties,
can be supervised.101 As the legislator in the area of programme-related legislation owing to the constitutionally founded programme autonomy of public service
broadcasters - is restricted to the setting of abstract rules, the supervisory body for its
part cannot control compliance with abstract rules in the area of programming.
Accordingly, the Court rejected the attempt of several federal governments to forbid the
96
Michael Libertus, Zur Frage der Entscheidungskompetenz bei der Wahrnehmung der
Grundversorgungsaufgabe, ZUM 1995, 699 700 with reference to (for example) Fuhr, Der
öffentlich-rechtliche Rundfunk im dualen Rundfunksystem, ZUM 1987, 145, 152.
97
Grundversorgungsaufgabe, ZUM 1995, 699 700 with reference to (for example) Hoffmann-Riem,
Rundfunkfreiheit im Umbruch Medium 1987, 17, 20.
98
Grundversorgungsaufgabe, ZUM 1995, 699 700 with reference to (for example) Bethge,
Rundfunkfreiheit in der Perspektive von Bundes- und Landesverfassungsgerichtsbarkeit, ZUM
1987, 427, 433.
99
Constitutional Court, 87, 181(201); 90, 60(91) and confirmed in the judgment of 11 September
2007, paragraphs 124, 125.
100
Bernd Radeck, Neue alte Rolle: Rundfunkräte in der Pflicht, op. cit., p. 135.
101
Administrative Court, VG München, ZUM 1986, p. 206.
108
public broadcasting corporations (of the ARD) to establish a satellite programme called
“(ARD) EINS PLUS” because it negated their power to supervise this matter.
The Internet is constantly developing, the number of users is constantly increasing, as is
the offer of, and demand for, moving images provided not only by public service and
commercial broadcasters but also by others, in particular private users. Besides the
transmission of traditional broadcasting content, the Internet offers new possibilities to
communicate and to reach the public with information and entertainment. The question
of whether and to what extent online activities of public service broadcasters are
covered by the remit as it is defined by the Constitutional Court is subject to intense
discussion.
1.
Constitutional context of the public service online activities
The Constitutional Court states that the Internet represents a special form of media that
combines text, sound and moving images and offers new means of distribution and
transmission. As the Internet offers have a high authenticity and a large impact on
society, they perform a function which, according to the Constitutional Court, requires
the same protection against one-sided exertion of influence as traditional broadcasting.
The Constitutional Court therefore stated that precautions have to be taken to protect
media diversity and that an extension of the remit and function of public service
broadcasting to new contents, formats and genres and new distribution platforms is
necessary.102 Online activities of public service broadcasters can therefore take place on
the basis of the guarantee of development from which they benefit. The remit is thus
construed dynamically and in relation to the function of broadcasting.103 According to
the Constitutional Court the public service broadcasters cannot be limited to the present
state of the art in respect of programmes, funding and technology.104
Some derive from the guarantee not only the reasoning for public service broadcasters
to distribute programmes via the Internet and to provide programme related services,
but also the full and comprehensive participation in new media services.105 According to
another view, the legislator is allowed to exclude public service broadcasters from
offers which do not have a widespread impact and, therefore, to set limits in the area of
102
Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 123; BVerfGE 83,
238 (299); 297 (350).
103
Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 123; BVerfGE 83,
238 (299); 297 (350).
104
105
In this way Georgios Gounalakis, Regulierung von Presse, Rundfunk und elektronischen Diensten in
der künftigen Medienordnung, ZUM 2003, 180 (188).
109
online activities to the “functional mandate” which is based on the extraordinary
importance of broadcasting.106
The judgment of the Constitutional Court handed down in September 2007107 confirmed
again the important role of public service broadcasting for the formation of opinion. The
Court also pointed out that the concentration trends in the media markets, the growing
convergence of the media and the development of new technologies lead to a new
dimension of interconnection and require effective instruments to guarantee the
diversity of opinions.108 In particular in connection with the aforementioned statement,
that the range of efficacy is widened by new technologies which increased the number
of (differentiated) offers and brought about new possibilities for programme-related
services, it can be concluded that the Court thereby stated the necessity of public service
activities also in the area of new media services.
Through this decision, it seems to have been clarified that at least the programmes
transmitted in simulcast via the Internet or mobile networks as well as programmerelated (new) services which have an ancillary function to the broadcast programmes are
covered by the guarantee of development. If public service broadcasting via traditional
and new means (Internet, mobile networks) as well as the offer of programme-related
services are no longer sufficient to guarantee the diversity of opinions, a new and
further interpretation of the mandate/remit of public service media may be necessary.
On the basis of the present jurisprudence even a further extension of the remit of public
service media to non-programme-related services can be envisaged. Still, the legitimacy
of non-programme-related and non-linear offers of public service broadcasters and the
classification and control of programmes as programme-related or not, give rise - owing
to the need of interpretation - to further questions and discussions.
2.
Conclusions and implementation in the 12th Amending Treaty
In summary it can be noted that a wide range of online activities of public broadcasting
corporations are legitimate, if not required by the freedom of broadcasting, in the
current dual broadcasting system. In an attempt to concretise the related remit, the 12th
Amending Treaty - which entered into force on 1 June 2009 - stipulates that public
service broadcasters are entrusted with the offer of certain “telemedia” (Telemedien)
which are defined as electronic information and communication services and include
various online activities. Partly, the remit in this respect is already concretised by the
legislator; beyond this, there is room for public service media also to go further.
Programmes can be offered on the Internet up to seven days after they were broadcast
on television. Also programme-related offers which support or develop in more depth
the topic or content of the broadcast programme are allowed for a period of up to seven
days. If the corporation considers that a programme or programme-related content
should be available for longer than seven days, it has to demonstrate the contribution to
106
Stephan Ory, in: „Medienrecht, Praxishandbuch“, Teil 4, Kapitel 1, § 1 Rn. 30 (p. 1287).
107
108
110
the democratic, social and cultural needs of society, the qualitative contribution to
editorial competition and the adequacy of the costs (“three-step-test”). Apart from this,
archives of the public broadcasters with contemporary or cultural-historical contents can
be permanently available. Offers which are similar to press offerings and are not
programme-related are explicitly forbidden.
This framework is the result of the current discussion about the remit of public service
media which is in particular focussed on the online activities of public service
broadcasting corporations and raises fundamental issues in respect of the whole
broadcasting system, the interpretation of the constitutional right of freedom of
broadcasting and the (clear) definition of the remit of public service media. The current
12th Amending Treaty therefore represents a solution which aims to consider and to
reflect the numerous (diverging) interests.
However, considering the agreement reached between Germany and the European
Commission in 2007 following the investigation into the financing regime for public
service broadcasters, it can be noted that the rules of the Interstate Treaty in respect to
the public service broadcasters’ online activities exceed the Commission’s demands to
concretise the remit. The Commission’s decision does not stipulate a restriction to only
programme-related content. Also against the background of the Constitutional Court’s
jurisprudence on the remit of public service broadcasting and in particular of the
Constitutional Court’s judgment handed down in September 2007 - which expressly
confirmed the dynamic character of the public service broadcasters’ remit and indicates
that the need to protect pluralism requires them to engage in online activities - the
solution adopted in respect of public service broadcasters’ online activities under the
12th Amending Treaty is being criticised as too restrictive.109
The legislator was confronted with the task of responding to the Commission’s request
to concretise the remit without violating the constitutionally-founded freedom of
programming as re-emphasised by the Constitutional Court in its aforementioned
judgment as an essential principle of the freedom of broadcasting. Through the
introduction of the “three-step-test”, which will be carried out by the broadcasting
corporations’ internal supervisory bodies, the legislator in part passed the concretisation
of the remit on to them and chose a solution similar to a co-regulatory model in order to
reconcile the Commission’s demands with the constitutional principles.
The discussion on the remit of public service media will certainly continue, particularly
in the light of the implementation of the new legal provisions. Further judgments by the
Constitutional Court on the remit of public service media therefore seem rather likely.
109
Karl-Eberhard Hain, „Neue Mediendienste und öffentlich-rechtlicher Rundfunk“, op. cit.; CarlEugen Eberle, Öffentlich-rechtlicher Rundfunk und Telemedienauftrag, AfP 04/2008, p. 329, 333;
Eva Maria Michel, Europarechtlich nicht geboten, verfassungsrechtlich bedenklich, in: „Politik und
Kultur“, September/October 2008, p. 20.
111
112
Hungary
Márk Lengyel
I.
Introduction
1.
When describing the national media landscape it is essential to note first that Hungary is
a relatively small media market with its approximately 3.8 million households. The total
annual turnover (including radio and television, but excluding Internet) was approx. 160
billion Huf (approx. 0.52 billion Euro) in 2008. However, a large portion (more than
one third) of this revenue came from state resources1.
As defined by Act I of 1996 on Radio and Television Broadcasting (Broadcasting Act)
the current structure of Hungarian public service broadcasting comprises three
companies (PSBs):
-
Magyar Televízió Zrt. (Hungarian Television; MTV)2, a successor of the former
state broadcasting company;
-
Magyar Rádió Zrt. (Hungarian Radio; MR)3, also a successor of the same state
broadcasting organisation;
-
Duna Televízió Zrt. (Duna Television; Duna Tv)4, founded in 1992 with the
principal purpose of serving the needs of Hungarian nationals living in
considerable numbers outside the borders of Hungary.
The largest segment of the Hungarian media market is television broadcasting. In order
to be able to properly evaluate the significance of public service television the main
characteristics of the television broadcasters can be summarised as follows:
-
In market terms the most important broadcasters are M-RTL Zrt. and MTM-SBS
Zrt. They operate the two national terrestrial television channels under the brands of
“RTL-Klub” and “Tv2”. Both of them are subsidiaries of major pan-European
media enterprises (M-RTL is a part of the RTL group, MTM-SBS belongs to the
Pro7-Sat.1 holding). According to the draft National Audiovisual Media Strategy5
their aggregated audience share was 61.6% in 2006. On this basis they were able to
1
Own estimate based on corresponding acts and readily available market information.
2
http://www.mtv.hu/
3
http://www.radio.hu/
4
http://www.dunatv.hu/
5
National Audiovisual Media Strategy
szolgaltatasok/dtv/nams20070426.html
available
in
Hungarian
at:
http://www.meh.hu/
113
reach 91.5% of the total television advertising revenue available on the Hungarian
market6. This performance makes them the most powerful actors on the Hungarian
media market. However, in the past years these broadcasters suffered - and continue
to suffer - a stable and ever growing decline of their audience shares due to the
increasing competitive pressure from thematic channels and the on-demand services
available via the Internet.
-
The second most significant group of television broadcasters in Hungary is the
segment of thematic channels. There are approximately 60 television channels
available for the Hungarian audiences in the national language as part of the offers
of various cable television and satellite network operators. It is worth noting that of
this number of channels only 24 operate under Hungarian jurisdiction. The rest of
them are registered mostly in the Czech Republic, Romania or in the UK.
-
The two public service television companies, MTV and Duna Tv, have obviously
not recovered from the shock they suffered by losing their monopoly in 1997, when
M-RTL and MTM-SBS entered the Hungarian market. Now, compared to their huge
economic weight (their aggregated yearly turnover is approximately a third of the
total Hungarian market’s) their audience share is extremely low (fig. 1.).
80
70
60
50
40
SHR%
30
20
10
0
1997Q1 1998Q1 1999Q1 2000Q1 2001Q1 2002Q1 2003Q1 2004Q1 2005Q1 2006Q1 2007Q1 2008Q1 2008Q4
fig. 1.: the audience share of the public service television channels in Hungary between the first
quarter of 1997 and the last quarter of 2008 (quarterly average) (source: AGB Nielsen, Hungary)
As regards radio the situation is slightly different. While the market leaders are,
similarly to the television segment, the two national commercial radio channels, MR,
the public service radio holds a significantly larger share of audience than its public
service counterparts in the television market. The total volume of the radio advertising
market is estimated at 8 billion Huf (approx. 26 million Euros) in 20087.
6
National Audiovisual Media Strategy, Vol. II p. 108
7
Source: Hungarian Advertising Association
114
Internet is the most dynamic segment of the Hungarian media market. According to a
study published by the Hungarian Advertising Association8 46% of the Hungarian
population can be regarded as regular users of the Internet9, and this proportion is
constantly growing. According to the data of the Hungarian Advertising Association the
share of Internet from the total advertising market was 7.5% in 200710.
According to the regulation currently in force Internet and on-demand content provision
are not considered to be the area of public service. Despite this lack of regulation, PSBs
make substantial attempts to follow the trends of media developments and make
available a considerable volume of services on-line:
-
MR provides its linear programmes via the Internet too and it also
makes available most of its broadcast programmes on-demand for a limited
period of time (for 21 days following the broadcast)11.
-
MTV also considers its online presence as an important part of its
services. It operates the MTV Online Portal Group as a pool of websites with
public service content. According to the statistics, MTV’s news portal12 is the
most visited portal among TV News portals in Hungary, ahead of the commercial
TV channels’ similar portals. MTV also launched a live channel on the Internet
with individual programmes, called webm3 (mtv.hu/webm3).
-
Duna Tv also operates its website13.
2.
a)
Constitutional law
The current wording of the Hungarian constitution relevant for public service
broadcasting dates back to 1989 in the time of the democratic transition. There are two
main constitutional provisions in this regard:
A set of constitutional norms defines freedom of expression. According to these
“in the Republic of Hungary everyone has the right to freely express his opinion, and
14
furthermore to access and distribute information of public interest” .
8
Available at: http://www.mrsz.hu/study.php?cmssessid=
T027385006475e368c142649fd645d85338f1f9afb55d983ca3950d20797ec8c
9
The data are from the first half of 2008.
10
Available at: http://www.mrsz.hu/study.php?pg=1;cmssessid=
T027385006475e368c142649fd645d85338f1f9afb55d983ca3950d20797ec8c
11
http://www.radio.hu/
12
http://www.hirado.hu/
13
http://www.dunatv.hu/
14
Act XX of 1949 on the Constitution of the Republic of Hungary, §61 (1).
115
“The Republic of Hungary recognizes and respects the freedom of the press.”
15
A second, more specific provision states that
“a majority of two-thirds of the votes of the Members of Parliament present is required to
pass a law on the supervision of public radio, television and the public news agency, as
16
well as the appointment of the directors thereof (…)”
As a consequence of these provisions the constitutional importance of public service
media is twofold:
-
On the one hand it forms a practical guarantee of freedom of expression. By its
sheer existence it provides an alternative source of information for citizens whatever
the state of private broadcasting may be in the country.
-
On the other, it aims at preventing ad-hoc political interference with the public
service media by the means of legislation.
b)
Ordinary law
The legal framework governing the structure, the financing and the mission of public
service broadcasting is defined by the Broadcasting Act.
aa)
Remit
When the remit is considered there are three basic observations that can be made:
-
In the framework of the Broadcasting Act not only the public service broadcasters
are obliged to undertake public service tasks. To a certain extent the national
terrestrial broadcasters are also subject to public service obligations as defined in
their broadcasting contracts.
-
While the Broadcasting Act defines the organisational structure and the financing of
the public service broadcasters in a very detailed manner it puts much less emphasis
on the remit. As a consequence the remit is less developed than other national
regulatory matters regarding public service broadcasting.
-
The rules governing the remit of public service broadcasters have been
unchanged since 1996. As one consequence of this the Act does not
public service remit outside the domain of traditional (radio and
broadcasting. This means that under the current rules the public service
not include Internet or any other type of new media.
practically
define the
television)
remit does
A further detailed description of the public service remit is provided in sub-chapter II.2.a).
bb)
The legal form of the public service broadcasting companies is the company limited by
shares (Zrt.).17 The public service broadcasters have only one share per company, which,
15
16
116
according to an explicit provision of law, is held by a public foundation.18 Therefore the
three public service companies are owned by three separate public foundations.
In Hungarian law a “public foundation” is a foundation established by a public
institution.19 The basic reason for inserting public foundations between the Parliament
and the PSBs was to secure the independence of the latter. The general rules on
foundations20 provide that their founders exercise no direct control over them. Therefore
foundations are relatively independent pools of resources dedicated to special purposes.
As a result, the form of a foundation may, in principle, grant a significantly higher
degree of autonomy for the organisation than other legal forms.
As a consequence of this structure the public service broadcasters do not have any
formal relationship with the government. Similarly, there is no direct relationship
between the Parliament and the public service broadcasting companies. The Parliament
provides the financing of public service broadcasting activities via the public
foundations. In addition, the Parliament also elects a proportion of the members of the
governing bodies of the public foundations.
cc)
Funding
The Hungarian public service broadcasters are financed dominantly by state resources
supplemented by income from their own commercial activities:
The main resources granted regularly by the state are:
-
General purpose state subsidy. This replaced the licence fee21 in 2002. The subsidy
is paid to the Broadcasting Fund.22 This fund is managed independently from the
central State budget by the National Radio and Television Commission (ORTT), the
national regulatory authority for the media. The individual public service
broadcasters are entitled to different proportions of the total licence fee income as
defined by the Broadcasting Act.23 In this respect 40% of the licence fee income is
17
Broadcasting Act §64 (3).
18
Broadcasting Act §64 (4); §65.
19
It should be noted that Hungarian law no longer provides for the possibility of establishing public
foundations. However, this does not prevent already-existing public foundations from continuing
their activities.
20
Act IV of 1959 (Civil Code) §§74/A-74/G.
21
Under the original rules of the Broadcasting Act households equipped with television sets had to pay
a licence fee. This was changed in 2002, when the government decided to assume this obligation,
and to pay the amount of the total licence fee from the central State budget. Since 2002 this has
remained the way of paying the licence fee to the Broadcasting Fund. In 2007 a partial reintroduction of the licence fee took place, when commercial enterprises (hotels, bars, etc...) were
obliged to pay licence fee with regard to TV sets operated by them. However, this fee does not
represent a major source of funding.
22
Broadcasting Act §§77-78.
23
117
due to MTV, 28% is due to MR and 24% is to be paid to Duna Tv.24 These amounts
are paid by the Broadcasting Fund to the public service broadcasting companies via
their respective public foundations.
-
State-paid subsidies for covering costs of programme transmission.25 As arranged by
the Broadcasting Act the Ministry of Finance enters into a direct contract with
Antenna Hungária (AH), the telecoms service provider on financing the diffusion of
the public service programmes. Beyond this, MR, the public service radio, is also
entitled to subsidies paid directly by the central State budget covering the costs of
its art ensembles.
-
Broadcasting fees paid by certain private broadcasters.
In addition to these regular sources, the system of financing public service broadcasters
also allows for direct ad hoc subsidising provided to the public foundations.26
Besides public financing, public service broadcasters are also allowed to compete for
commercial revenue to a certain degree. However, their presence on the advertising
market is limited by stricter advertising and sponsorship rules. For example: public
service broadcasters are allowed to broadcast 6 minutes of advertising per hour27 while
their commercial counterparts have the possibility of inserting twice as much
commercial content in their programmes.
dd)
Supervision
The main bodies of supervising the activities of the public service broadcasting
companies are their respective public foundations. The decision-making bodies of the
public foundations (the boards of trustees), as is explained in more detail in sub-chapter
II.2.c), are composed of members elected by the Parliament and members nominated by
organisations of the civil society.
Beyond this special structure of supervision the activity of public service broadcasters is
also subject of scrutiny by the national media authority, the ORTT.
24
Of the remaining licence fee income a further 6% is used for tenders aimed at sponsoring public
service programmes. The rest covers the operational expenses of the ORTT and of the public
foundations of the public service broadcasters.
25
26
For example: Act CLXIX of 2007 on the Budget of the Republic of Hungary for 2008 §85 (6).
27
118
II.
Independence of PSM
1.
For a period of 6 years following the introduction of the constitutional provisions the
political consensus did not reach the level necessary to adopt an act that would have
regulated inter alia the system of Hungarian public service broadcasting. Several
decisions on questions relating to public service broadcasting that the Constitutional
Court passed during this period are worth noting. In these decisions the Court urged the
Parliament to adopt the necessary legislation and gave guidance especially on the
questions of institutional and financial independence. The period between 1990 and
1996 was characterised not just by the absence of proper legislation but also by fierce
political struggles focusing on the governance of public service broadcasters.
Act I of 1996 on radio and television broadcasting (the Broadcasting Act)28 was
expected to end this so-called “media war”.29 It defined the legal framework for the
operation of public service broadcasters and, at the same time, opened up the possibility
of launching commercial broadcasting.
As a consequence of this history there are three clearly distinguishable periods in the
development of the jurisprudence of the Constitutional Court in this respect:
-
From 1989 to 1995 the forum established, with the view of the forthcoming
legislation, the basic constitutional principles related to public service broadcasting
in five decisions30. These contain more or less clear messages to the legislator
regarding the urgency and the content of the expected regulation.
-
In the period from 1995 to 2005 the Constitutional Court delivered only one
decision related to public service broadcasting, providing an interpretation of a
disputed provision in the Broadcasting Act31. In this period the definitive part of the
efforts taken by the forum in the field of media regulation was dedicated to avoiding
the involvement of the Constitutional Court in the political debates concerning
media regulation.
-
By 2005 it became clear that the regulation provided by the Broadcasting Act is
outdated in almost every question of major importance. The introduction of digital
broadcasting called for a completely new legal framework. As a consequence, the
28
Available in English at: http://net.jogtar.hu/jr/gen/getdoc.cgi?docid=99600001.tv&dbnum=62.
29
The term “media war” is commonly used by Hungarian political analysts to characterise this period.
30
Decision 30/1992. (V. 26.) AB; decision 37/1992. (VI. 10.) AB; decision 36/1994. (VI. 24.) AB;
decision 47/1994. (X. 21.) AB; decision 31/1995. (V. 25.) AB.
31
Decision 22/1999. (VI. 30.) AB.
119
media-related activity of the Constitutional Court became livelier. Beginning in
2005 the Court delivered a further five decisions32.
It is worth noting that the Constitutional Court’s attention to the regulatory issues
related to public service broadcasting was at its most intense in the first period of its
connected jurisdiction. In the third period the main questions were posed in relation to
the functioning of the media authority. However, the responses given by the forum are
also relevant for the debates concerning public service broadcasting.
a)
aa)
Contribution to freedom of expression and the freedom of media
The foundation of the jurisprudence of the Hungarian Constitutional Court related to
public service broadcasting is freedom of expression. The court described the essence of
this freedom in one of its earliest and most quoted decisions as follows:
“It is an important question with regard to all the fundamental rights whether they may be
constrained at all, or if yes, then by what conditions. Moreover, in the case of conflicting
fundamental rights on the basis of which criteria shall the priorities be defined? In the case
of freedom of expression and the related freedom of the press this question gains special
importance, since these freedoms belong to the basic values of a democratic and plural
society.
Therefore freedom of expression has a preeminent role among fundamental rights.
Basically it is the “mother right” of various fundamental freedoms i.e. the so called
“fundamental rights of communication”. Separately defined rights originating from this
“mother right” are the freedom of speech and the freedom of the press, the latter
comprising the freedom of all kinds of media, the right to be informed and the right to
access to information.”33
On the basis of the jurisprudence of the Hungarian Constitutional Court it can be
concluded that freedom of expression is a two-sided freedom:
-
In an active interpretation it means that the one who communicates has, in principle,
the right to do so without any interference from the state.
-
On the other hand there is also a passive side of this freedom. This implies that the
one who is addressed in the process of communication has the right to receive
information.
As a consequence freedom of expression implies the right to be informed. Citizens’
decisions on the basis of sufficient information are essential in a functioning democracy.
Therefore the recognition of this passive side of freedom of expression by the
Constitutional Court has far reaching consequences concerning the constitutional
foundations of public service broadcasting.
32
Decision 1/2005. (II. 4.) AB; decision 2/2005. (II. 10.) AB; decision 1/2007. (I. 18.) AB; decision
46/2007. (VI. 27.) AB; decision 37/2008. (IV. 8.) AB.
33
Decision 30/1992. (V. 26.) AB, III. 2.1.
120
bb)
The importance of public service from the point of view of democracy is also derived
from the fundamental nature of freedom of expression.
As the Constitutional Court emphasised in the case of freedom of expression
“this bouquet of rights makes it possible for the individual to take part in social and
political processes in a valid manner. Historical evidence highlights that in every case
when freedom of expression was limited, social justice and creativity suffered and the
potential to develop the inner human abilities diminished. Detrimental effects prevailed not
only in the life of the individual but in the life of the society as well and led to dead ends in
human history full of suffering. The free expression of views and thoughts and the free
manifestation of ideas, however unpopular or particular should they be, are the basic
preconditions of a really lively society with the ability to develop.” 34
“As this is derived from § 61 of the Constitution beside the right of freedom of expression
for the individual there is an obligation on the state to ensure the necessary preconditions
to the development and the functioning of a democratic public opinion. [...] For this reason
[the Court] has to define the constitutional limits of freedom of expression by taking into
account, beside the right of the communicating individual, the indispensable value of the
formation and the development of a democratic public opinion.”35
It can be seen that the essential need for democratic public opinion and its paramount
importance from the perspective of a properly functioning democracy led the
Constitutional Court to derive from the freedom of expression a positive obligation for
the State well beyond mere prohibition of interference. In this perception the state is
obliged to act in order to promote the development of the democratic public opinion.
When summarising the contribution of public service media to democracy it should be
emphasised first that the jurisprudence of the Hungarian Constitutional Court sees the
main reason to operate the system of public service media in its expected impact on the
functioning of the democracy. In this respect the decisions of the Constitutional Court
established a system of strong links between the basic value of freedom of expression
and public service broadcasting. These links can be summarised as follows (fig. 2.):
fig. 2.:The constitutional basis of public service broadcasting
34
Decision 30/1992. (V. 26.) AB, III. 2.1.
35
Decision 30/1992. (V. 26.) AB, III. 2.2.
121
cc)
As is shown in sub-chapters aa) and bb) the constitutional basis of public service
broadcasting was defined by the Constitutional Court first and foremost by the need to
contribute to the functioning of the democratic political system. The reasoning of the
Constitutional Court appearing in its related decisions does not include cultural or
educational arguments at all.
As a consequence cultural and educational elements of the public service remit do not
serve as a direct constitutional basis for maintaining PSBs.
b)
Explicitly named parts of the remit
According to the practice of the Constitutional Court it is up to the legislator to define
the remit of the public service broadcasters36. In doing so the jurisprudence of the
Constitutional Court leaves a wide margin of appreciation for the legislator. However,
although the remit of the public service broadcasters is not explicitly mentioned in §61
(4) of the Constitution, it is also clear that the definition of the remit shall be established
by a two-thirds majority of the Parliament.
When analysing the jurisprudence of the Hungarian Constitutional Court from the point
of view of the public service remit, first we have to note that the forum has not given
any detailed description of the public service mission with the intention of
comprehensiveness. As a consequence the jurisprudence of the court does not define
explicitly the basic services public service providers are expected to fulfil. In other
words: the “Grundversorgung” (as this notion has been invented by the German
Constitutional Court37) is not defined exhaustively by the Hungarian Constitutional
Court.
The constitutional remit of public service broadcasting can be summarised as:
-
promoting the constitutional right of access to information of public interest;
-
representing the opinions present in the society;
-
providing accurate comprehensive and balanced news services.
A further definitive part of the public service mission relates to securing pluralism
within the programmes of the individual public service broadcasters. As these
broadcasters carry out their duties for the benefit of the entire Hungarian society they
are obliged to represent all the views present within the society in a balanced and
comprehensive manner. This obligation to achieve an “inner pluralism” is clearly
defined by the statements of the Constitutional Court as quoted above.
36
Decision 37/1992. (VI. 10.) AB, III. 3.
37
BVerfGE 73, 118.
122
c)
Determination of the scope/extent of the protection
The Constitutional Court acknowledged in various decisions that the special role of the
public service broadcasters requires the protection of their independence both from the
state and individual social groups in respect to the content of the provided programmes.
The independence of public service broadcasting was also highlighted by the
Constitutional Court with regard to financing, when it excluded the possibility of
placing the budget of Hungarian Radio and Hungarian Television under the heading of
the Office of the Prime Minister until the guarantees of independence of these
institutions had been provided by the legislator38.
In another decision the Constitutional Court also established that a Decision of the
Government obliging Hungarian Television to decrease the number of its employees by
1,000 is not compatible with the Constitution and therefore declared the given decision
null and void.39
It should also be noted that a recent decision of the Constitutional Court seems to
contradict the strict perception of independence as outlined above. According to this
decision
“The Constitutional Court has emphasised in a number of its decisions that the primary
way of exercising the sovereignty of the people is through representation. This means that
first and foremost it is up to the members of the Parliament to make decisions in matters of
public importance. Some among these are related to the election of members of certain
institutions as defined by the Constitution or by certain acts. (...) The fact that the members
of the Parliament vote on the members of the ORTT ensures that the decision on the
membership is made in a democratic process”40.
Although this decision provides guidance directly with regard to the regulatory
authority, it may also signal a change in the way the Constitutional Court views the
notion and the guarantees of independence in the case of public service broadcasters
too.
2.
a)
Remit/specific obligations
As noted above, the Court recognises the essential need for a democratic public opinion
and its paramount importance from the perspective of a properly functioning
democracy. The importance of the Public Service Media in this communicative process
and their role in the democratic order are pointed out in various decisions. In respect to
the press the Court stated:
38
Decision 47/1994. (X. 21.) AB, III. 2.
39
Decision 31/1995. (V. 25.) AB.
40
Decision 46/2007. (VI. 27.) AB III. 1.4.
123
“Freedom of expression prevails in the right of the freedom of the press in a special way.
The press is a tool of obtaining information and expressing and formulating opinions. The
State is obliged to guarantee the freedom of the press with regard to this.” 41
On this basis the Court stated that
“a democratic public opinion can be formed exclusively on the basis of factual and full
provision of information. As a consequence the Constitution explicitly defines the right to
receive information necessary to formulate an opinion, but only to the necessary extent: it
obliges the parliament to prevent monopolies of information by law” 42.
Following this statement the Court provided a detailed explanation of the connection
between freedom of expression and the functioning of public service broadcasting:
“Special arrangements are needed in the case of the national public service radio and
television [...]. As regards them the legislator must enact laws [...] requiring these
institutions to provide fully comprehensive and balanced information and preserving this
kind of functioning. This shall be secured by detailed material, institutional and procedural
rules.” 43
There are certain elements of the public service mission that are named explicitly in the
decisions of the Court. In one of them the Court noted that
“the constitutional character of these organisational solutions [i.e. the definition of the
organisation of the PSBs] can be judged by their principal ability to represent
comprehensively and in a balanced manner the opinions present in society and the
unbiased reporting on facts and news” 44.
In another decision the forum emphasised that
“securing the basic constitutional right of access to information of public interest makes it
imperative for the State to ensure the continuous and undisturbed operation of public
service broadcasters”45.
The Court also made statements regarding the “inner pluralism” in a recent judgment:
“The obligation of balanced presentation of news cannot be interpreted in such a way that
would require the broadcaster to present all the relevant opinions in every programme
item. If the obligation to provide balanced coverage could be fulfilled exclusively within
the individual programme items that would lead to the detriment of freedom of expression
that could not be justified by the legitimate legislative purpose of safeguarding pluralism of
opinions” 46.
The definitive source of the public service broadcasting remit is the Broadcasting Act.
On this basis the public service remit can be examined from two standpoints:
41
Decision 37/1992. (VI. 10.) AB, II. 2. b.
42
Decision 37/1992. (VI. 10.) AB, II. 2. b.
43
Decision 37/1992. (VI. 10.) AB, II. 2. d.
44
45
Decision 22/1999. (VI. 30.) AB, IV. 7.2.
46
Decision 1/2007. (I. 18.) AB, III. 5.
124
aa) from the standpoint of content and programming;
bb) from the standpoint of the various channels broadcast.
As regards content and programming, the task of the public service broadcasters is
defined essentially by the category of “public service programme item”. According to
the Broadcasting Act the general aim of such programme items is to “serve the
informational, cultural, civic and everyday needs of the (national, regional, local)
audience in the area of reception of the broadcaster”.47
This refers in particular to:
“a) artistic works or communication presenting the universal and Hungarian culture and
the cultures of the national and ethnic minorities living in Hungary, the life of the national
and ethnic minorities living in Hungary, and the viewpoints of minorities,
b) dissemination of information serving educational and training purposes,
c) providing information on scientific activities and results,
d) broadcasts promoting the freedom of religion, and presenting church and religious
activities,
e) children’s and youth programmes, educational and general information programmes on
child protection,
f) dissemination of information making every-day life easier, serving to provide legal and
public life information for citizens, and promoting healthy lifestyles, the protection of the
environment, the protection of nature, public security and the safety of traffic,
g) programmes created for groups at a serious disadvantage due to their age, physical,
mental or psychological state or social circumstances,
h) dissemination of news.”48
From the legal point of view the main task of public service television is to provide a
“public service programme” (or programmes) that constitutes
“a programme in which public service programme items play a decisive role, and which
regularly informs the listeners and viewers living in the area of reception of the broadcaster
49
about issues deserving the attention of the public.”
Beyond this basic obligation the Broadcasting Act also formulates the following major
additional programming requirements:
-
the obligation to provide regular, comprehensive, unbiased and accurate news;
-
fostering the values of universal and national cultural heritage, promoting cultural
diversity;
47
Broadcasting Act §2, §19.
48
49
125
-
providing programmes for minors, serving their physical, psychological and moral
development;
-
providing assistance to people with disabilities.50
As regards the various programme services offered by the public service broadcasters
the Broadcasting Act refers to the following channels:
-
MTV is present on the audiovisual landscape with two national channels: “m1” is a
national programme service produced for reception by the general audience via
terrestrial network. “m2” is a satellite channel with a more-or-less clear cultural
profile.
-
Duna Televízió provides a satellite channel under the name “Duna Tv”. In 2005
Duna Televízió also began to provide an additional public service satellite channel
called “Autonómia”. This channel is devoted to “the presentation of national
identity and cultural diversity”.
-
MR provides three national radio channels on terrestrial networks (“MR1 Kossuth”
- a general news and talk channel, “MR2 Petőfi - a light entertainment channel,
“MR3 Bartók - a cultural channel), a number of other channels for ethnic minorities,
regions and a parliamentary channel.
It should be noted that beyond this static definition of the public service remit the
Broadcasting Act does not define any procedures or criteria for new services provided
by PSBs or for material changes made by PSBs to the programmes. In other words: no
procedure similar to the public value test in the United Kingdom exists in Hungarian
regulation.
The lack of such arrangements has emerged as a problem in Hungary only recently. The
first occasion when a practical decision related to new services to be provided by PSBs
was needed occurred in 2005, when MTV announced the launch of its third channel
“m3”. According to the registration with the ORTT this channel is intended to be a
thematic satellite news channel covering the work of the Parliament. Shortly after
MTV’s announcement, Duna Televízió also applied to the regulatory authority for the
registration of its additional public service satellite channel called “Autonómia”. Since
PSBs benefit from “must carry” obligations the launch of these new programme
services triggered legal debates with cable operators, which are obliged to distribute all
the channels of the public service broadcasters free of charge and which therefore
challenged the decisions of the ORTT to register “m3” and “Autonómia”. The dispute
concerned the interpretation of the Broadcasting Act, and in particular the question of
whether the Act allowed public service broadcasters to launch new satellite services
without an explicit mandate. The cable operators argued that this is not the case and
furthermore that the lack of a specific public service mandate for launching the new
service also raised concerns under the state aid rules of EC competition law. Finally the
50
126
competent courts rejected the appeal of the cable operators in 2008, but they did so
merely on procedural grounds.
A question of a similar nature emerged in 2007 when MR, the PSB radio decided to
change the format of its second national channel. Previously the channel provided a
programme consisting of a mixture of light entertainment, sport and news. Following
the change it became a channel of contemporary light music. As a result it succeeded in
enlarging its audience significantly and in opening up to younger listeners. On the other
hand the change initiated debates as to whether the new format corresponds with the
standards of public service content as laid down by the Broadcasting Act. At the end of
2008 the ORTT delivered its decision that MR was breaching its obligations because the
programme of “MR2Petőfi” cannot be regarded as a public service programme51. The
MR appealed against this decision to the court.
b)
The special role of the public service broadcasters in Hungarian society is safeguarded
by a set of special requirements concerning their institutional independence. The
starting point of the Constitutional Court in this regard was that
“guarantees of freedom of radio and television are not automatically linked to certain
organisational or legal forms. However, in case of radio and television freedom of
expression shall be secured by a detailed regulation regarding organisation.” 52
On this basis the court emphasised in almost all of its decisions that
“as a constitutional precondition regulation must prevent any state institutions or social
groups from decisively influencing the content of the programme provided by the public
service radio or the public service television.” 53
This high standard of the degree of independence remained the backbone of the
jurisprudence of the Constitutional Court:
“Regulation must exclude the possibility of influence of the content over the programme
by any organ of the state or by any social group in such a way that would jeopardise the
comprehensive balanced and accurate representation of ideas within the society, or the
unbiased means of information. The Constitution prescribes the independence of radio and
television both from the state and from individual social groups. They cannot have any
power that would make programming unilateral, or by which they could exercise material
control over its content. This prohibition concerns not just actual influence but the
possibility to influence as well. The requirement of independence regarding the content of
programmes from state organs relates to both the government and the legislator. Both of
these are subjects of external critics and the control by society through this. Therefore none
of them may have powers to influence the content of opinions presented by radio or
television. The decisive influence of the Parliament is equally unconstitutional as the
51
ORTT decision 242/2008 (I.30.)
52
53
127
influence of the Government in this regard. The same can be said about local governments,
parties, and other organisations within the society. 54
According to the practice of the Court it falls within the competence of the legislator to
develop legal solutions granting the proper presentation of the views present in the
society in accordance with democratic standards. However, the Court also provided
general guidance on the principles for the legal framework governing supervision of
PSBs:
“The representation in the special organ safeguarding the fundamental right of freedom of
expression cannot be merely or definitively the reflection of the political institutions of the
society. Mere agreement of political parties or parliamentary fractions is unsuitable for
providing constitutional guarantee for the emergence of freedom of expression. Moreover:
the liberty from the state requires neither the Parliament nor the Government obtaining
definitive influence concerning the content of the programmes.” 55
According to the Constitutional Court the legislator has to safeguard the independence
of the Public Service Institutions also with regard to the funding system. Prior to the
entry into force of the Broadcasting Act in 1996, the budget of the public service
broadcasters was defined by the Act on the central State budget of the given year. When
the Court evaluated this arrangement it made the following observations:
“It is not merely symbolic whether an institution is mentioned in an individual chapter, or
simply in a sub-chapter within a given chapter” (i.e. in the act on the annual budget)56. “It
is of constitutional importance whether these institutions (i.e. the public service
broadcasters) are defined as a chapter or sub-chapter because of the possibility of
modifying the budget. It is undoubtedly unconstitutional to place the budget of Hungarian
Radio and Hungarian Television under the heading of the Office of the Prime Minister
until the guarantees of independence of these institutions are not provided by the
legislator”57
The principal safeguard in this context is the qualified majority as required by the
Constitution and as described under chapter 1 for legislation related to the structure and
governance of PSBs.
However, the real value of this safeguard is very questionable. It undoubtedly protects
PSBs from interference by political parties via legislation. On the other hand the
requirement of such a high level of consensus makes legislation related to the media
extremely difficult. Owing to the high political sensitivity of the matter there has not
been legislation related to the structure and services of PSBs in Hungary since 1996.
As a consequence the regulatory framework governing the operation of PSBs has been
unchanged for 13 years. This means that the adjustments of the public service remit, the
content of the services of PSBs and the financing of PSBs undoubtedly made necessary
by the rapid technological changes of the media sector have not yet been implemented
54
55
56
Decision 47/1994. (X. 21.) AB, III. 2.
57
Decision 47/1994. (X. 21.) AB, III. 2.
128
into the national regulation. The requirement of a qualified majority also means that the
political and moral responsibility for solving these issues remains unclear.
c)
Limits for supervision by supervisory bodies
The general scheme of supervising the activity of public service broadcasters can be
outlined as follows (fig. 3.):
The Parliament
(election)
Controlling body for
the Board of Trustees
(3 members)
Civil
organisations
(election)
Presidency of the Board of
Trustees
(at least 8 members)
(supervision)
Board of Trustees
(21 - 23 members)
governance
and
supervision
nomination
PSB company
fig. 3.: structure of governance and supervision of the Hungarian public service broadcasters
In this structure
-
There are no formal direct links between the PSBs and the government.
-
The institutional influence of the Parliament is limited to the election of the
members of the presidency of the board of trustees. However, it is also the
Parliament that takes the fundamental decisions on financing year by year.
Beyond these a provision of the Broadcasting Act also stipulates that public foundations
exercising the founders’ and shareholders’ rights
“are not entitled:
a) to change the basic scope of activities of the companies;
b) to terminate, merge, demerge or transform the companies into another organizational
form;
129
c) to disappropriate assets or profits (dividends) from the companies;
d) to define the programme structure, and the contents of the broadcasts and programmes
of the companies;
e) to give the general manager of the company instructions in respect of the employers’
rights conferred upon him;
f) to adopt a decision on any matter that is conferred under the competence of another
organization or the general manager of the company by this Act.”58
The composition of the presidencies of the respective boards of trustees has been the
subject of a judgment of the Constitutional Court in 1999. In this the forum established
that members nominated by parliamentary fractions that later ceased to exist cannot be
regarded as linked to the governing parties or to the parties in opposition59. The
significance of this issue is underlined by the rules of the Broadcasting Act requiring a
constant balance between the representation of the governing parties and the parties in
opposition within the presidencies60.
In the regulation provided by the Broadcasting Act concerning the remit of PSBs the
following structural deficiencies can be identified:
-
the static definition of the remit;
-
the lack of regular evaluation of the fulfilment of this remit;
-
the lack of proper procedures establishing the public service value of proposed
changes of existing services by PSBs or of proposed new services.
These structural problems have been known to decision-makers for a long time. In
recent years there have been several attempts at structural reform of the regulatory
framework governing the system of Hungarian public service media. The most recent
examples of such attempts were the elaboration of a draft National Audiovisual Media
Strategy61 and the subsequent publication of an attached Regulatory Concept Paper62 and
a draft Bill on Media Services63. Both documents were prepared under the aegis of the
Prime Minister’s Office, which is the ministry responsible for matters of audiovisual
regulation in 2007 and 2008. The draft bill also reflects the work of representatives of
the parties present in the Parliament and serves as a basis for their discussions.
58
Broadcasting Act §65.
59
Decision 22/1999. (VI.30.) AB IV. 3.
60
Broadcasting Act §55. (5); §55. (9).
61
Available at: http://www.meh.hu/tevekenyseg/hatteranyagok/nams20070905.html
62
Available at: http://www.meh.hu/misc/letoltheto/NAMS_jogalk_konc_071213_final.pdf
63
Available at: http://www.parlament.hu/aktual/szakmaitervezet.pdf
130
However, because of the political landscape characterised by the extremely hostile
attitudes of the political parties towards each other, it is also possible that these
documents may not actually lead to new regulation. It also has to be noted, though, that
they reflect the current regulatory way of thinking, and for this they are undoubtedly
worth analyzing.
Both the draft bill and the Regulatory Concept Paper foresee fundamental changes in
regulating public service media. If we attempt to give a short account of these changes,
first we have to see that both documents aim to create a system of financing compatible
with the corresponding EC competition rules. Both of them foresee a system of
financing based on a contractual relationship between the PSBs and the financing body.
As a consequence, both of the documents require the detailed definition of the public
service remit. Evaluation of fulfilment of the public service remit is proposed to be
introduced and a procedure providing a kind of public value test is planned in the case
of new services. Moreover, in the views expressed in the Regulatory Concept Paper and
in the bill, this remit shall be extended to new media.
In general, if legislation comes, Hungarian PSBs might expect an increasing level of
legal certainty and extended and much better defined room for manoeuvre in
formulating their policies.
131
132
Italy
Roberto Mastroianni/Amedeo Arena
I.
Introduction
1.
The electronic media market in Italy is, at the present time, still dominated by the
television sector even though user-provided content aggregators and social networking
sites (such as YouTube and Facebook) have become increasingly popular, especially
among young people, often combining old media (such as radio and television) with
new media products (Internet, pay TV, videophone, MP3 players).
According to the latest Annual Report of the Italian Communications Regulatory
Authority (AGCom)1, the television sector itself is undergoing significant changes. The
report mentions, in particular, three of those trends: i) the consolidation of the relative
weight of pay TV vis-à-vis the total amount of resources in the television sector; ii) the
strengthening of the new digital platforms (satellite and terrestrial) to the detriment of
analogue TV and iii) the inception of new features in television-related services, mainly
on the model of the new media. Moreover, several traditional linear operators have
entered the pay-TV market.
As shown by the table below, the main operators in the television sector are the Italian
public service broadcaster RAI, the commercial network RTI and the satellite operator
Sky Italia.
Television sector revenue shares for each operator (%)
(Source: AGCom 2008 Annual Report)
The revenue of those media companies originates, however, from different sources.
1
Autorità per le Garanzie nelle Comunicazioni, Relazione Annuale sull'attività svolta e sui
programmi di lavoro, report submitted to the President of the Council of Ministers on 15 July 2008.
The obligation on the part of AGCom to submit, by 30 June every year, a written report to the
Government which is to be forwarded to the Italian Parliament is set out in Article 1(6)(c)(12) of
Law 31 July 1997, n. 249 (Official Journal of the Italian Republic of 31 July 1997, no. 177), which
is the statute establishing AGCom.
133
Overall revenue for each operator:
The PSB’s main sources of revenue are, as shown above, licence fees and advertising.
The revenue for services provided to other television operators, instead, is of limited
significance. RTI, as explained above, is a commercial network in the traditional sense,
as most of its revenue comes from the sale of advertising space on its analogue and
DTT channels. Sky Italia, is chiefly a pay-TV operator, deriving most of its revenue
from premium programmes provided to viewers.
In sum, the three main players on the Italian television market compete on two different
sub-markets: advertising and the provision of premium content. It is also noteworthy
that they compete on different media, as shown in the tables below:
Advertising revenue on different media:
Pay-TV revenue on different media:
From the tables above it is plain that whilst the sale of advertising space is the main
source of revenue in the analogue TV sector (RTI and the public service broadcaster RAI
being the major competitors), the provision of premium content is paramount on the
satellite sub-market, where Sky Italia is by far the largest player.
134
In this connection, it is worth taking into account the individual overall market shares of
the Italian media companies, in both the advertising and the pay-TV market:
Market shares on the television advertising market:
Market shares on the pay-TV market:
From a competition law standpoint, both markets can be regarded as highly
concentrated, the Herfindahl-Hirschman Index for both being over the severe
concentration threshold (i.e. 1800).2
If account is taken of another relevant factor on the television market, i.e. the audience
shares of the networks, the picture does not change appreciably, as in this case too the
market is highly concentrated:
2
It is worth recalling that an HHI in excess of 1800 points indicates a concentrated market. Under US
antitrust law, transactions that increase the HHI by more than 100 points in concentrated markets
presumptively raise antitrust concerns under the Horizontal Merger Guidelines issued by the U.S.
Department of Justice and the Federal Trade Commission.
135
2.
a)
Constitutional law
The current version of the Italian Constitution does not contain any express reference to
public service broadcasting. Nor is its remit clearly defined therein.
This might be due to the fact that, when the Italian basic law was enacted (i.e. on
27 December 1947) television was relatively unknown in Italy; the same, however, does
not hold true for radio, which had had massive dissemination. In the absence of an
express reference to television and radio in the Constitutional legal texts, freedom of
broadcasting thus developed as a corollary of the wider principle of freedom of
expression, set out in Article 21 of the Italian Constitution. That provision reads as
follows:
“Article 21
(1) All shall have the right to express their thoughts freely by speech, in writing, and by all
other means of communication.
(2) The press shall not be subjected to any authorization or censorship.
(3) Seizure shall be permitted only by reasoned decision of the judiciary, in the case of
offences for which the law governing the press expressly provides, or in the case of
violation of such provisions as the said law may prescribe for identifying the persons in
charge.
(4) In such cases, under conditions of absolute urgency and when the immediate
intervention of the judiciary is not possible, periodical publications may be seized by
officers of law enforcement agencies, who shall report to the judiciary immediately or, in
any case, no later than 24 hours. If the judiciary does not confirm the measure within the
next 24 hours, the seizure shall be considered as revoked and shall remain without effect.
(5) The law may order, by means of general provisions, that the financial sources of
periodical publications be disclosed.
(6) Printed publications, performances, and all other exhibits offensive to public morality
shall be forbidden. The law shall lay down proper provisions for preventing and repressing
all violations.”
As to public service broadcasting, the Constitutional Court also referred to Article 43 of
the Italian Constitution, whereby acts of Parliament are to regulate essential public
services, including broadcasting. Both the framework governing public service
broadcasting and the definition of its remit are, instead, to be found in items of
secondary legislation or regulatory instruments, which, in turn, are designed to
implement - and must be in accordance with - a number of principles (i.e. freedom of
expression, protection of linguistic diversity) enshrined in specific provisions of the
Italian Constitution.
b)
Ordinary law
At the present time, the basic provisions governing public service broadcasting are
contained in the Radio and Television Broadcasting Code (Legislative Decree 31 July
2005, no. 177 - Testo unico della radiotelevisione, hereinafter: The Broadcasting Code),
136
which incorporates the most relevant statute on the issue, i.e. the so-called Gasparri Law
(Law 3 May 2004, no.112 - “Regulations and principles governing the set-up of the
broadcasting system and the RAI-Radiotelevisione italiana S.p.a., authorizing the
government to issue a consolidated broadcasting act”). The Broadcasting Code devotes
its Part VIII to the “Duties of the General Public Broadcasting Service”, which contains
provisions governing the remit (Articles 45 and 46), the funding (Article 47), the
supervision (Article 48) and the internal company structure (Article 49) of the public
service broadcaster. According to that last provision, the company responsible for the
fulfilment of the public service broadcasting task is, and will be until 6 May 2016, RAIRadiotelevisione italiana Spa.
It should be noted that the competence to regulate the media is shared between the State
and Regions (Article 117, paragraph 3, of the Constitution); accordingly, public service
broadcasting is governed by the Broadcasting Code and by other State legislation as
well as by Regional Laws which, according to Article 46(1) of the Broadcasting Code,
define the specific public service obligations that the public service broadcaster is
required to discharge by means of a television channel devoted to regional
programming.
Furthermore, Article 45, paragraph 1 of the Broadcasting Code stipulates that the remit
is defined by a National Service Contract entered into between RAI and the Ministry of
Communications, as well as by Regional and, for the Autonomous Provinces of Trento
and Bolzano, Provincial Service Contracts; the purpose of such regional and provincial
contracts is, according to Article 46, paragraph 2 of the Broadcasting Code, to stipulate
further the specific public service obligations laid down in the regional laws.
To date, however, neither Regional Laws within the meaning of Article 46(1) of the
Broadcasting Code nor Regional Public Service Contracts as per Article 45(1) thereof
have been adopted.
aa)
Remit
As far as the public service broadcaster’s remit is concerned, regard must be had, in the
first place, for the provisions of the “national service contract”, i.e. the legally binding
agreement the PSB enters into with the Ministry of Communications, which is updated
on a three-yearly basis.
It is also worth noting, however, that prior to each renewal of the national service
contract, the Ministry of Communications, upon agreement with AGCom, issues the socalled Guidelines, which set out the additional obligations of the general public
broadcasting service, defined in relation to market developments, technological progress
and to changes in the cultural, national and local requirements.
The current content of the public service broadcasters’ remit will be examined in greater
detail in Section II of the present report.
137
bb)
Turning to the internal organisation and company structure of the Italian public service
broadcaster, RAI S.p.A. is a public company under Italian company law. As with other
public companies, RAI is governed by three bodies: the Shareholders’ General Meeting,
the Board of Directors (Consiglio di Amministrazione, hereinafter: CdA) and the Board
of Auditors (Collegio Sindacale).
Once more than 10% of RAI's share capital has been acquired by private investors, the
members of the Board of Directors will be elected by a “list vote” by the shareholders'
general meeting. This scenario is, however, not plausible in the short- and mid-term
owing to the restrictive requirements on shares ownership laid down in the Broadcasting
Code, which stipulates, inter alia, that no private shareholder may own more than 1% of
RAI share capital.
Hence, the appointment of the members of the CdA is currently regulated by the
transitional arrangements laid down in the Broadcasting Code. According to Article 49,
paragraph 9, of the Broadcasting Code the CdA consists of nine members, seven of
whom are appointed by the Commissione parlamentare per l’indirizzo generale e la
vigilanza dei servizi radiotelevisivi, a parliamentary committee entrusted inter alia with
the supervision of the activities of the public service broadcaster. The other two
members, one of whom is the President of the CdA, are appointed directly by the
majority shareholder, i.e. the Ministry of Economy and Finance. The appointment of the
President, however, becomes effective following approval by the Commissione di
vigilanza by a two-thirds majority vote.
cc)
Funding
The Italian PSB benefits from a dual-funding system, its revenue originating both from
the sale of advertising space and compulsory licence fees levied on all owners of
television sets, the so-called canone di abbonamento, whose amount is set every year in
accordance with a decree issued by the Minister of Communications, as per Article 47,
paragraph 3, the Broadcasting Code. This subscription fee dates back to the 1930s and it
is still regulated by Royal Legislative Decree no. 246 of 21 February 1938 and by
Legislative Decree no. 458 of 21 December 1944.
The basic rules for PSB funding are set out in Article 47 of the Broadcasting Code and
include the principle whereby the canone can be used solely in order to fulfil the
functions of public service broadcasting,3 and not the commercial activities. To this end,
3
Doubts have been raised as to the effectiveness of the current PSB system of financing to ensure full
independence of the former from political and governmental influence (Mastroianni, R., Riforma del
sistema radiotelevisivo italiano e diritto europeo (Giappichelli: Turin 2004), at 83.). As explained
above, the amount of RAI’s mandatory licence fee is set, every year, by the Minister of
Communications in accordance with some parameters and criteria defined by law, which requires
the Minister to take account of such expenditure that the public service broadcaster is expected to
incur in fulfilling the specific general public broadcasting service obligations for the year in question
as can be inferred from the previous budget, the perspective inflation rate, and the needs of
technological development.
138
the Broadcasting Code sets out a separate accounting obligation: in particular, RAI is
required to draw up its balance sheet in accordance with a prospectus approved by
AGCom in its Resolution no. 186/05/CONS.4
As regards advertising revenue, however, it should be noted that, according to Article
38(1) of the Broadcasting Code, RAI is subject to more restrictive rules as to the
maximum amount of advertising time compared to those applicable to commercial
broadcasters.
dd)
Supervision
The Broadcasting Code lays down both an internal and an external supervision system
to monitor compliance by the public service broadcaster of its public service remit.
Concerning internal supervision, pursuant to Article 49, paragraph 3, of the
Broadcasting Code, the CdA - apart from being the main administrative body of the
company, responsible for all its strategic decisions - “is also responsible for ensuring
and guaranteeing correct fulfilment of the aims and obligations of the general public
broadcasting service”. Put differently, in the opinion of the present country report’s
authors under Italian law both the operation and, in respect of the objectives named in
the foregoing, the supervision of public service broadcasting are entrusted to the same
body.5
The external supervision tasks are, instead, assigned to two different institutions: the
Italian Communications Regulatory Authority (AGCom) and the aforesaid Commissione
di vigilanza.
AGCom is an independent authority, established by Law n° 249 of 31 July 1997. Just
like the other independent authorities established in the Italian legal order, AGCom is
accountable to Parliament, which sets its powers, approves its statutes and elects its
members. AGCom's power to monitor RAI's compliance with its remit, as set out in the
4
Resolution no. 186/05/CONS, published in the Official Journal of the Italian Republic no. 150 of 30
June 2005.
5
Article 49, paragraph 3, of the Broadcasting Code (D.Lgs. 31 luglio 2005, n. 177) reads: “The Board
of Directors of RAI-Radiotelevisione italiana Spa, composed of nine members, is appointed by the
shareholders in general meeting. The Board, apart from being the body (responsible for) the
management of the company, also carries out tasks of monitoring and supervision as to the accuracy
of the fulfilment of the aims and obligations of public service broadcasting.” (Il consiglio di
amministrazione della RAI-Radiotelevisione italiana Spa, composto da nove membri, è nominato
dall'assemblea. Il consiglio, oltre ad essere organo di amministrazione della società, svolge anche
funzioni di controllo e di garanzia circa il corretto adempimento delle finalità e degli obblighi del
servizio pubblico generale radiotelevisivo.) In the same vein, RAI’s Statute, at Article 25, paragraph
1, states: “The Board of Directors, apart from being the body (responsible for) the management of
the company, also carries out tasks of monitoring and supervision as to the accuracy of the
fulfilment of the aims and obligations of public service broadcasting.” (Il consiglio, oltre a essere
organo di amministrazione della società, svolge anche funzioni di controllo e di garanzia circa il
corretto adempimento delle finalità e degli obblighi del servizio pubblico generale radiotelevisivo.)
As regards the financial supervision, Article 30, paragraph 5, of RAI’s Statute expressly provides for
that budgetary control is to be carried out by the Board of Auditors until September 30, 2014, when
this attribution will be entrusted to an external auditing company.
139
Broadcasting Code, in national and regional service contracts and in AGCom’s
Guidelines, is expressly set out in Article 48, paragraph 1, of the Broadcasting Code.
The Commissione Parlamentare per l’Indirizzo Generale e la Vigilanza dei Servizi
Radiotelevisivi was established by the Law of 14 April 1975, n. 103 "New provisions
governing television broadcasting" with a view to allowing the Italian Parliament to
monitor and direct TV broadcasting, given its significance in the context of a truly
democratic polity. In particular, the Commissione is directly responsible for the
appointment of seven out of nine members of RAI's Board of Directors. As it will be
illustrated in greater detail in section 2(c) below, even though the Broadcasting Code
has significantly limited the Commissione's powers to define RAI's remit, it arguably
still retains some significant supervisory attributions over the Italian public service
broadcaster.
II.
Independence of PSM
1.
Judgments by the Italian Constitutional Court concerning the role and the remit of
public service broadcasting are, in fact about a dozen in number. The explanation lies in
the fundamental features of the Italian legal order, viz. a Civil law-based system:
regulating a given field is a task mainly for the legislature (i.e. the Parliament and, under
some circumstances, the Government), not for the Courts.
However, if regard is had to television broadcasting as a whole rather than to public
service broadcasting in particular, there has actually been a remarkable judicial activism
in the field, at least by Civil law standards. It is the judiciary, namely the Constitutional
Court, which has repeatedly prompted, expressly called for6 and, in some cases, even set
guidelines7 and deadlines for the lawmaker's action; courts have illustrated the basic
principles, stemming from the Constitution, which should underpin broadcasting
legislation; judges have been ready to strike down statutes and decrees insofar as they
departed from those principles, as well as to black out individual broadcasters acting in
breach of those rules.
The constitutional law context of public service broadcasting will therefore be
illustrated in the following sections by reference both to the most relevant items of
legislation and to the case-law of the Italian Constitutional Court, an important partly in
the framework of a complex and sometimes tense institutional dialogue established
between the judiciary and the legislature. The present section will thus deal with the
principle of freedom of broadcasting in the first place; it will then turn to the principles
underpinning public service broadcasting and to its specific remit.
6
In Judgment 202/76 the Constitutional Court declared unconstitutional the statutory provisions
reserving local broadcasting to the State, but at the same time urged the lawmaker to lay down a
comprehensive legal framework to regulate that sector.
7
Judgment 225/74.
140
a)
aa)
Contribution to freedom of expression
As mentioned above, the Italian Constitution contains no reference to radio and
television broadcasting. Freedom of broadcasting has thus developed as a corollary of
the wider principle of freedom of expression, set out in Article 21 of the Italian
Constitution.
Regarding case-law of the Italian Constitutional Court, it is apparent that, in the field of
television broadcasting, the paramount expression of the general principle of freedom of
expression is that of media pluralism, which is considered the cornerstone of Italian
media law. The Court itself, on several occasions, expressly stated that pluralism of the
media is the foremost constitutional value with reference to television broadcasting as
well as, on a more general level, in the framework of the rules governing mass
communication.8
It is striking that even in its earlier case-law, which long provided a valuable
constitutional basis (Article 43 of the Italian Constitution) for the perpetuation of a State
legal monopoly over television broadcasting, the Constitutional Court endeavoured to
ensure that it was an "open monopoly", thus safeguarding the independence of reporters,
the right of access, the right of reply, etc.9 Furthermore, pluralism of the media has been
regarded as directly linked to the right to be informed enshrined in Article 21 of the
Italian Constitution.10
bb)
As affirmed in a number of rulings by the Constitutional Court, the principle of media
pluralism is twofold: an internal aspect, involving the duty, for every broadcaster, and
especially for the public one, to convey the broadest possible spectrum of political,
social and cultural opinions, trends and currents of thought, and an external one, i.e. the
availability to the public of a plurality of information sources. Before turning to the
distinctive features of those two dimensions of pluralism, it is worth recalling that the
Court has consistently held that both facets are essential for the existence and
preservation of a truly democratic polity.11
In its judgment no 284/02, the Constitutional Court emphasized the role of PSB for a
democratic society by stating that public service broadcasting has the specific task of
ensuring, to a greater degree than commercial broadcasters, compliance with the
8
See Judgments of the Constitutional Court nos. 153/1987; 826/1988; 420/1994; 155/2002; 466/2002.
References to “judgments” in the following footnotes are to be understood as referring to judgments
of the Italian Constitutional Court, save where otherwise specified.
9
See, to that effect, Judgment no. 225 of 1974.
10
Judgments nos. 420/94; 148/81 420/94 466/02 213/85 826/1988.
11
Judgment no. 420/94, where the Court stated that any absence or shortcomings of external pluralism,
due to the lack of effective antitrust provisions, cannot be compensated by the presence of a public
service broadcaster whose primary commitment is to ensure that internal pluralism is safeguarded.
141
internal aspect of the principle of media pluralism, viz. the right of information and the
diffusion of culture, so as to promote citizens’ participation and to contribute to the
social and cultural development of the country. It is worth noting that, on that occasion,
the Court merely reaffirmed a basic assumption underpinning Italian broadcasting
legislation: the reference to promoting the participation of citizens as a specific task for
the public service broadcaster was indeed laid down in Art. 1 of Law no. 103 of 1975.
cc)
The Constitutional Court explicitly refers in the aforementioned judgment no. 284/02 to
public service broadcasting’s task of ensuring the diffusion of culture and of
contributing to the social and cultural development of the country. On that occasion, the
Court clarified that an essential part of the remit of the public service broadcaster was
its "specific function" of cultural promotion.
More to the point, the Court expressly held that RAI's programming should reflect this
commitment by being representative of Italy's most significant cultural expressions.
In so doing, the Court essentially espoused the argument put forward by RAI itself in
the context of that very dispute: the close link between the promotion of culture and
public service broadcasting is one constant element of Italian legislation in the field
dating back even to the Law of 30 June 1910, no. 395 which reserved for the State the
use of the radio spectrum in the light of general interest considerations such as the need
to ensure the promotion of culture.
b)
The Italian Constitutional Court first held that nation-wide television broadcasting was a
“public service in the general interest” in its seminal judgment no. 59/1960. It was not
until its landmark ruling no. 225/74, however, that the Court specified in greater detail
the role, status and remit of television broadcasting. On that occasion, the Court
classified broadcasting as an “essential public service” (servizio pubblico essenziale)
aimed at addressing “general interest goals” (fini di utilità generale) insofar as it carried
out “fundamental information tasks, contributed to education and culture and had an
influence over the public opinion”.
c)
As analysed in detail in chapter II. 2. b) and c), the Court recognised the principle of
independence and confirmed the necessity of absence of both governmental and onesided private influence. At this juncture, however, it is worth focusing on judgment no.
225/74, where the Constitutional Court laid down the basic principles underpinning the
statutory legal framework in the broadcasting sector. One of those guidelines concerned
the governing bodies of the State broadcaster, which must not “represent, be it directly
or indirectly, either exclusively or prevalently, the executive power”. The Court added
that the structure of the State broadcaster must be designed in such a way as to ensure
the objectivity of the governing bodies. The Court hence clearly took the view that those
142
requirements can only be met if “adequate powers are bestowed upon the Parliament,
which institutionally represents the whole national electorate”.
However, as to the implementation of such principle by the national legislature,
Resolution 1387 (2004) of the Parliamentary Assembly of the Council of Europe casted
some doubt over the existence of adequate means of safeguarding the independence of
the public service broadcaster.
Another corollary that can be derived from the freedom of broadcasting is the duty of
transparency as to the broadcasters’ sources of funding. Although this obligation is laid
down in Article 21, paragraph 5, of the Italian Constitution with reference to
periodicals, the Constitutional Court deemed it applicable also to television
broadcasting. In Judgment no. 826/1988, when commercial broadcasting was at its
inception, the Court ruled that a high degree of transparency in the assets and the budget
of broadcasters is required, as it has an impact on the value of media pluralism.
2.
a)
aa)
The “public service” task
The Italian Constitutional Court has consistently held that nation-wide television
broadcasting is a “public service in the general interest” ever since its seminal judgment
no. 59/1960. As mentioned above the Court classified in its ruling no. 225/74 the
activity of television broadcasting as an “essential public service”.
It is worth noting, however, that the “essential public service” and the “general interest
goals” of television broadcasting had, at least in the early case-law of the Constitutional
Court, a specific function: justifying the national monopoly over the whole broadcasting
sector by triggering the provision laid down in Article 43 of the Italian Constitution.
That provision reads as follows:
“For purposes of general interest the law may reserve from the beginning or transfer, by
means of expropriation and with payment of compensation, to the State, to public bodies,
or to workers or consumer communities, specific enterprises or categories of enterprises of
paramount general interest that concern essential public services or energy sources, or
situations of monopoly.” (emphasis added)
It is thus little wonder that, along with the “essential public service” nature and the
“general interest goals” of television broadcasting, the Constitutional Court relied on the
scarcity of the electromagnetic spectrum since there is a further argument to support the
application of Article 43: as the number of available frequencies is limited, market
forces would turn the broadcasting sector into a de facto oligopoly in the hands of
private investors. Compared to this scenario, State monopoly was thus regarded as a
lesser “evil”.
For the purpose of this report, it is, however, worth emphasizing that the “essential
public service” and the “general interest goals” language was retained in subsequent
143
judgments and legislation even when, following technological advancements, the State
monopoly was progressively abolished.
Judgment no. 202/76 is paramount in this connection: as the Court held that the scarcity
of the spectrum argument did not hold true at the local level and accordingly wiped out
the State monopoly over local broadcasting, in a dictum it emphatically reaffirmed that
“radio and television broadcasting at the national level is an essential public service of
paramount general interest” (un servizio pubblico essenziale e di preminente interesse
generale).
It is equally striking that, as also the State monopoly over nation-wide broadcasting was
put to an end, the broadcasting activity as a whole, be it private or publicly owned,
retained its “public service” characterization. Article 1 of Law no. 223/1990 - the first
comprehensive legal instrument concerning television broadcasting - indeed stipulated:
1. Broadcasting of radio and television programmes, irrespective of the medium
employed, constitutes an activity of paramount general interest.
2. Media pluralism, objectivity, completeness and impartiality of information, openness
to diverse opinions, political, social, cultural and religious trends, whilst respecting the
freedoms and the rights set out in the Constitutions, are the basic principles
underpinning the broadcasting system which consists of the activities of both public
and private undertakings, under the terms of the present law. (emphasis added)
bb)
The provision of pluralist information
As illustrated above, the Italian Constitutional Court has been adamant in affirming the
principle of media pluralism, even if this entailed striking down items of statutory
legislation.
The question arises, however, as to the identity of the addressees of the obligation to
provide pluralist information. As early as 1975, the Constitutional Court clarified that
internal pluralism is a duty mainly for the public service broadcaster. In its later caselaw, however, the Court held that such a requirement is also binding on private
broadcasters, albeit to a lesser degree: in the case of private undertakings the duty to
convey a plurality of opinions, must be balanced against the freedom of enterprise set
out in Article 41 of the Italian Constitution.
A clear example of the above is the doctrine of equal time, known in Italy as "par
condicio", in the context of policy-related broadcasts: whilst some basic requirements,
especially as to the period preceding election dates, apply both to private and public
broadcasters12, the latter are bound by additional, more burdensome rules.13
12
Ibid.; even though the applicability of the par condicio rule was, on that occasion, only implied by
the Constitutional Court.
13
This was expressly affirmed by the Constitutional Court with reference to the requirements
broadcasters are bound to respect in the days preceding referenda.
144
cc)
Justification of the licence fee for the PSB by its specific task
If, according to Article 7(1) of the Broadcasting Code, both public and commercial
broadcasting constitute activities of paramount general interest to be carried out in
accordance with statutory requirements in the public interest (e.g. openness to diverse
opinions, impartiality of information, etc.) the question has arisen as to the reasons
justifying the availability of public resources to the exclusive advantage of the public
service broadcaster.
This question was referred to the Constitutional Court by the Court of Milan as late as
2001, but some scholarly contributions raising the same issues are more than a decade
old - and so was the solution devised by the legislature. In its judgment no 284/02,
which is still cited as an authority as to the constitutionality of RAI's licence fees, the
Court duly noted that the abolition of the State monopoly over television broadcasting
did not put an end to the existence and to the constitutional legality of a specific “public
service broadcasting” task entrusted to a public undertaking. The Court, recalling its
judgment no. 155/2002, went on to state that public service broadcasting has a
constitutional justification insofar as the undertaking entrusted with it not only must
abide by the rules applicable to all broadcasters but also has the specific task to ensure,
to a greater degree, the right of information and the diffusion of culture, so as to
promote citizens’ participation and to contribute to the social and cultural development
of the country. It follows that the undertakings entrusted with the provision of public
service broadcasting must be subject to additional “public service obligations” (i.e. the
remit). In this connection, the Court expressly recalled RAI's national service contract.
More to the point, the need to ensure the performance of the public service
broadcaster’s remit is currently the one and only constitutional justification for the
licence fee, which once constituted consideration for the services provided, but
nowadays is regarded as an imposta di scopo, a purpose tax. Indeed, in judgment no.
284/02, the Constitutional Court held that the purpose of such a tax is exactly to allow
the public service broadcaster to carry out its remit, as a system of funding based
exclusively on advertising revenue would force the public service broadcaster to take
account of audience shares and to adapt the quality and breadth of its programming to
that of its competitors.
dd)
(1)
The constitutional law background to the concretization of the remit in the
broadcasting law
General stipulations
Article 7, paragraph 1 of the Broadcasting Code mandates that “the activity of
broadcasting information, carried out by any broadcaster, constitutes a service of
general interest” and enumerates (in paragraph 2) the basic tenets which “under all
circumstances” must be followed by both public and private broadcasters; on the other
hand, however, paragraph 4 thereof stipulates that:
4. This law identifies additional and specific functions and obligations of public service
which the company operating the general public broadcasting service is obliged to fulfil
within its global scheduling, even if this is not associated with information, including
145
herein the production of European audiovisual works created by independent producers, in
order to encourage education, civil growth and social progress, to promote the Italian
language and culture, to safeguard the national identity and to provide services in the social
interest. (emphasis added)
Such “additional specific functions and obligations”, which may be deemed to
constitute the “specific remit” of the public service broadcaster within the meaning of
Council of Europe Recommendation no. 1641 (2004) on public service broadcasting14,
are comprehensively defined in Article 45, paragraph 2, of the Broadcasting Code,
which states as follows:
2. The general public service broadcasting, in accordance with Article 6, paragraph 4,
under all circumstances guarantees the following:
a) the transmission of all television and radio public service transmissions by the
franchisee company with integral cover of national territory, insofar as this is permitted by
the state of science and technology;
b) an adequate number of hours of television and radio transmission devoted to education,
information, training, promoting culture, with specific regard to developing theatrical,
cinematographic and television works, including in their original language, and musical
works recognised as being of a high artistic level or chiefly innovative; this number of
hours is defined every three years by deliberation of the Communications Regulatory
Authority; entertainment broadcasts for children are excluded when calculating these
hours;
c) the broadcasting of the transmissions referred to in point b), in a proportional way, in all
hourly bands, including during prime time, and on all television and radio programmes;
d) access to scheduling, within the limits and in accordance with the terms indicated by
law, in favour of parties and groups represented in Parliament and in regional assemblies
and councils, locally independent associative organisations, national unions, religious
denominations, political movements, political and cultural bodies and associations,
national associations for co-operative movements which have legal recognition,
associations for social advancement registered in national and regional registers, ethnic and
linguistic groups and other groups of significant social interest which request this;
e) the setting up of a company for the production, distribution and transmission of radio
and television programmes abroad, aimed at promoting awareness and enhancing the value
of the Italian language, culture and enterprise, by using programmes and by transmitting
the most significant productions from the national audiovisual range;
f) the broadcasting of radio and television transmissions in the German and Ladin
languages for the autonomous province of Bolzano, in the Ladin language for the
autonomous province of Trento, in the French language for the autonomous region of
Valle d’Aosta and in the Slovenian language for the autonomous region of Friuli Venezia
Giulia;
g) the free broadcasting of messages of social benefit or of public interest which are
requested by the Prime Minister's Office and the transmission of appropriate information
on the conditions of Italian roads and motorways;
14
Parliamentary Assembly of the Council of Europe, Recommendation no. 1641 (2004) on public
service broadcasting, adopted on 27 January 2004.
146
h) the broadcasting, at appropriate times, of content intended specifically for minors, which
takes into account the requirements and sensitivity of early infancy and the age of
development;
i) the conservation of historical broadcasting archives, guaranteeing public access to these;
l) the allocation of a share of no less than 15 per cent of the overall annual revenue to the
production of European works, including herein those created by independent producers;
this share applies from the date of the service contract drawn up after the date on which
this law comes into force;
m) the construction, by the deadlines indicated by this law, of infrastructures for
broadcasting transmissions on terrestrial frequencies using digital technology;
n) the production of digital interactive services of public benefit;
o) compliance with limits of advertising crowding indicated by Article 8, paragraph 6, of
Law no. 223 of 6 August, 1990;
p) the splitting up of the franchisee company into one or more national offices and into
offices in each region and, for the region of Trentino-Alto Adige, in the autonomous
provinces of Trento and Bolzano;
q) the adopting of appropriate measures for protecting people with sensory handicaps in
implementation of Article 4, paragraph 2;
r) the promotion and strengthening of decentralised production centres, particularly for the
purposes referred to in section b) and for the requirements of promoting local culture and
linguistic tools;
s) the production of distance learning activities.
Those obligations are framed in general terms, but are implemented by the provisions of
the national and regional public service contracts referred to in Article 45, paragraph 1,
of the Broadcasting Code as well as by AGCom's Guidelines mentioned in paragraph 4
thereof. Whilst a detailed account of all the individual obligations composing the public
service broadcaster’s remit would go beyond the purpose of the present contribution, it
is worth having regard to a number of examples which show how the said remit mirrors
and implements certain values enshrined in the Italian Constitution.
(2)
Contribution to culture
Examples of constitutional values implemented by specific provisions of the public
service broadcaster’s remit abound. Indeed, the obligation imposed on the public service
broadcaster to devote “an adequate number of broadcasting hours to education,
information, training, the promotion of culture, with specific regard to developing
theatrical, cinematographic and television works” under Article 45(2)(b) Broadcasting
Code is clearly the corollary of the Republic’s duty to promote cultural development
under Article 9 of the Constitution.
(3)
Contribution to local autonomy
Although the Italian Republic is, according to Article 5 of the Constitution, “one and
indivisible”, it nonetheless “recognizes and promotes local autonomy”; moreover ever
147
since the 2001 reform of Section V (i.e. the part of the Constitution concerning Regions,
Provinces, Municipalities),15 it has been maintained that the Italian polity is gradually
edging towards federalism. This polity, which is unitary but at the same time responsive
to the requirements of local autonomies, is - at least to some extent - reflected in the
organisational structure and regulation of the public service broadcaster.
More concretely, these aspects underlie both the requirement for the public service
broadcaster to have an office in each Region and in each of the Autonomous Provinces
of Trento and Bolzano (Article 45(2)(p) of the Broadcasting Code) - such regional and
provincial offices carry out their public service obligations under a regime of financial
and budgetary autonomy pursuant to Article 45, paragraph 3, of the Broadcasting Code,
and the obligation to promote and improve decentralised production centres with a view
to promoting local culture and languages (Article 45(2)(r) of the Broadcasting Code).
(4)
Protection of linguistic minorities
Article 6 of the Italian Constitution provides for that "[t]he Republic shall safeguard
linguistic minorities by means of special provisions", a commitment which in the field
of broadcasting is implemented by a number of detailed provisions.
At the outset, the promotion of broadcasting designed for legally recognised linguistic
minorities is one of the “General principles governing the broadcasting system for the
safeguard of pluralism and competition” under Article 5, letter l), of the Broadcasting
Code, which are binding on both the public service broadcaster and private commercial
broadcasters.
Furthermore, Article 45 of the Broadcasting Code - i.e. the provision whereby the
public service broadcaster’s remit is defined - at subparagraph 2(d) provides that ethnic
and linguistic minorities may apply for access to programming and at subparagraph 2(f)
expressly requires the public service broadcaster to broadcast “radio and television
transmissions in German and Ladin for the Autonomous Province of Bolzano, in Ladin
for the Autonomous Province of Trento, in French for the Region of Valle d’Aosta and
in Slovenian for the Region of Friuli Venezia Giulia”.16
The safeguarding of linguistic minorities is also referred to in other provisions of the
Broadcasting Code, such as Article 8 in respect of the principles governing local
broadcasting, Article 30 on booster stations and Article 42 as regards the allocation of
broadcasting frequencies.
Moreover, the provisions of the Broadcasting Code concerning linguistic minorities
have, in turn, been duly implemented by the National Service Contract17 and by the
Guidelines18 and that the broadcast of programmes in the German, Ladin, French and
15
See Legge costituzionale 18 October 2001, no. 3 ‘Modifiche al titolo V della parte seconda della
Costituzione’, [2001] GURI 248.
16
Broadcasting Code, above, Article 45(2)(f).
17
See in particular Article 1(4) and Article 12 of the National Service Contract.
18
See Article 7 of the Guidelines.
148
Slovenian languages has been the subject of specific bilateral conventions between the
Italian Presidency of the Council of Ministers and RAI.19
Finally, it is worth recalling that, as a consequence of the hierarchy of legal sources of
the Italian legal order, these provisions, no matter how detailed, must at all times be
read in the light of the constitutional values they are designed to implement, even if this
results in a more or less blatant disregard of their actual wording. In this connection, the
Autonomous Province of Trento recently challenged the constitutionality of Article 45,
paragraph 2, letter f), of the Broadcasting Code20 insofar as it requires the public service
broadcaster to provide for radio and television transmissions “in Ladin for the
Autonomous Province of Trento”, thus overlooking the rights of the Mócheno and
Cimbrian minorities as protected by the Special Statute for Trentino-Alto Adige. The
Constitutional Court, in its judgment no. 249/2005, dismissed the plea, but held that
such an apparent legal antinomy must be solved by recourse to the principle of
consistent interpretation, so as to include the Mócheno and Cimbrian minorities among
the beneficiaries of the linguistic arrangements laid down in the Broadcasting Code.
(5)
Contribution to education: the protection of minors
The Italian Republic’s commitment to education is expressly laid down in Article 33 of
the Constitution. The Broadcasting Code, in turn, devotes two groups of provisions to
viewers under the age of eighteen.
Article 34 Broadcasting Code sets out a number of requirements - mainly negative
obligations - which apply both to private and public service broadcasters and which deal
with, for instance, the ban on the broadcast of certain content during specified viewing
times, the participation of under-fourteens in advertising and television programmes etc.
Article 45, paragraph 2, letter h) of the Broadcasting Code, instead, imposes only on the
public service broadcaster the positive obligation to broadcast, at appropriate times,
19
Decreto del Presidente della Repubblica 31 July 1997 “Approvazione della convenzione stipulata in
data 11 giugno 1997 fra la Presidenza del Consiglio dei Ministri - Dipartimento per l'informazione e
l'editoria e la RAI - Radiotelevisione italiana S.p.a., per la trasmissione di programmi radiofonici e
televisivi in lingua francese per la regione autonoma Valle d'Aosta”, [1997] GURI 249; Decreto del
Presidente della Repubblica 31 July 1997 “Approvazione della convenzione stipulata in data 11
giugno 1997 fra la Presidenza del Consiglio dei Ministri - Dipartimento per l'informazione e
televisivi in lingua tedesca e ladina nella provincia autonoma di Bolzano”, [1997] GURI 249;
Decreto del Presidente della Repubblica 31 July 1997 “Approvazione della convenzione stipulata in
data 11 giugno 1997 fra la Presidenza del Consiglio dei Ministri - Dipartimento per l'informazione e
televisivi in lingua slovena nonché radiofonici in lingua italiana per la regione autonoma Friuli
Venezia Giulia”, [1997] GURI 249 as amended by Decreto del Presidente della Repubblica 24 April
2000 “Approvazione dell'atto aggiuntivo alla Convenzione stipulata in data 11 giugno 1997 fra la
Presidenza del Consiglio dei Ministri - Dipartimento per l'informazione e l'editoria e la RAI Radiotelevisione italiana S.p.a., per la trasmissione di programmi radiofonici e televisivi in lingua
slovena, nonché radiofonici in lingua italiana per la regione a statuto speciale Friuli-Venezia Giulia”
[2000] GURI 268.
20
To be specific, the action did not concern a provision of the Broadcasting Code - which was not in
force at the time - but rather Article 17, paragraph 2, letter f), of Law 3 May 2004, n. 112, which
was subsequently consolidated without amendments in the Broadcasting Code.
149
programmes intended specifically for minors, which take into account the requirements
and sensitivity of early infancy and of the age of development.
Such a provision has been duly implemented in the National Service Contract in force:
Article 3, paragraph 1, letter e), of the National Service Contract refers to a specific
broadcast genre called “programmes intended for children and young people”;
according to Article 6, moreover, RAI undertakes to devote a quota equal to ten percent
of its annual broadcasting time to programmes for the young aimed at promoting
tolerance, inter-cultural understanding, sex education, civics etc.
As to AGCom's Guidelines, whilst Article 4 thereof substantially reaffirms the contents
of the current National Service Contract, Article 6 expressly requires RAI to devote
fifteen percent of its annual turnover to the production or the purchase of European
works, including a cartoon aimed specifically at the education of children.
b)
The principle of external pluralism stems from a combined reading of Articles 21 and
41 of the Italian Constitution, laying down, respectively, the principle of freedom of
expression and that of freedom of enterprise. The Court has repeatedly insisted on the
close link between external pluralism and the provision of effective antitrust rules, so as
to ensure that subjects conveying diverse opinions are not marginalized as a result of the
concentration of technological and economic resources in the hands of one or of a few.21
Accordingly, on a number of occasions the Court was ready to strike down items of
legislation insofar as they did not effectively remedy for the perpetuation of the de facto
duopoly in the field of broadcasting which has characterized the Italian market for over
two decades. This occurred for the first time in 1994, when the Court declared that the
Law of 6 August 1990, n. 223 (rules governing public and private broadcasting) was
unconstitutional insofar as it allowed one single individual to hold simultaneously three
television networks.22 Likewise, in its judgment no. 466/2002, the Court upheld a plea
of unconstitutionality brought against Law n. 249 of 1997 which did provide for
adequate antitrust limits, but gave too wide a discretion to AGCom as to the
enforcement thereof. When the so-called Gasparri Law was passed in 2002, the former
President of the Italian Republic Carlo Azeglio Ciampi exercised his power to refer the
bill back to the Parliament for a second reading, holding that it did not adequately
protect media pluralism, a value that is “essential for the attainment of an accomplished
democracy”. Even though an amended version of the bill was subsequently signed by
President Ciampi - who was under an obligation to do so according to Italian
constitutional law - some scholars have pointed out that, in amending the original draft,
the lawmaker failed to pay due regard to the President's remarks.23
The Constitutional Court recognised the principle of independence of the public service
broadcasters from governmental influence and affirmed it in its landmark judgment no.
21
See, to that effect, Judgment no. 826/1988.
22
Judgment no. 420/1994.
23
Chimenti,A., L'ordinamento radiotelevisivo italiano (Giappichelli, Turin 2007), 163-170, notably 169.
150
225/74, which was released at a time of State monopoly, and requested the objectivity
of the governing bodies of the State broadcasters which has to be ensured by an
adequate design of the State broadcaster’s structure. (see above chapter II. 1. c)).
In a subsequent ruling (judgment no. 194/1987), the Court transposed its assumptions
on television broadcasting in general to public service broadcasting. The latter, the
Court held, was required to have a “high degree of democratic representativity”; its
structure, moreover, should mirror that of the national Parliament (the so-called
Parliamentarisation of the public service broadcaster).
c)
As noted in chapter I. 2. b) dd) the external supervision tasks, as regards mainly the
fulfilment of the remit, are assigned to AGCom and the Commissione di vigilanza.
As to the former, Article 48, paragraph 1, of the Broadcasting Code provides for a
detailed comprehensive enforcement procedure in the event of non-compliance by the
public broadcaster with its remit, and entrusts its implementation to AGCom. At the
outset, Article 48(2) mandates that, in cases of alleged non-fulfilment of the public
service obligations, AGCom notifies the opening of a preparatory enquiry to the public
service broadcaster’s legal representative. If, further to the investigative proceedings,
AGCom establishes a breach of the public service obligations it sets a deadline for the
franchisee company to rectify such non-compliances. Moreover, in the case of serious
infringements the Authority may also impose a pecuniary administrative penalty of up
to 3 percent of the turnover produced in the previous business year. If the public
broadcaster fails to rectify the braches by the aforesaid deadline AGCom may impose a
pecuniary administrative penalty of up to 3 per cent of turnover or, if the penalty for
serious breaches has already been imposed, a penalty of a minimum amount of no less
than twice the penalty already applied is imposed. Finally, in the case of reiterated
breaches, AGCom is entitled to suspend the public service broadcaster’s activities for
up to ninety days.
The AGCom also has a relevant role in the auditing of the RAI’s budget. Article 47,
paragraph 2, of the Broadcasting Code states that the separate accounting kept by RAI
must undergo an audit carried out by an auditing company appointed by the public
service broadcaster and selected by AGCom among those entered in the appropriate
register held by the National Commission for Listed Companies and the Stock
Exchange. Furthermore, according to Article 47, paragraph 1, of the Broadcasting Code,
within thirty days of its approval the balance sheet is to be sent to AGCom and to the
Ministry of Communications.
The Commissione di Vigilanza consists of twenty members of each House of
Parliament, i.e. the Camera dei Deputati and the Senato della Repubblica, so as to
represent a broad spectrum of political parties. Indeed, the Commissione's main task is
to ensure that all political perspectives, as well as the interests of stakeholders from the
civil society, are adequately represented in the programming of the Public Service
Broadcaster.
151
As to the supervision over RAI’s compliance with its public service obligations, the
Commissione derives its authority over the Italian Public Service Broadcaster (RAI)
from Article 1 of Law 103/1975. That statute originally also empowered the
Commissione to define the PSB's remit, but those provisions were subsequently
repealed, as the remit currently results from a reading of Articles 45 and 46 of the
Broadcasting Code in conjunction with the National and Regional Service Contracts, as
well as with AGCom's Guidelines. Conversely, not only the provisions laying down the
Commissione's supervisory power were not repealed by subsequent legislation, but they
were expressly recalled by a reference set out in Article 50 TURTV. Accordingly, it is
submitted that at the moment both the Parliamentary Supervision Committee and
AGCom have authority to monitor the public service broadcaster’s compliance with its
remit, although from different perspectives: AGCom's standpoint is chiefly legal and is
backed by the provision of an enforcement procedure; the Commissione's task, instead,
focuses on the appropriateness of the public service broadcasters’ policy choices and the
adequate representation of the various political parties usually resulting in the adoption
of non-binding resolutions.
Whilst the aforesaid supervision by AGCom and by the Commissione over compliance
by the public service broadcaster with its remit is not by itself incompatible with the
RAI’s freedom of programming, it must be noted that the Parliamentary Assembly of
the Council of Europe, in its Resolution 1387 (2004), expressed concerns about RAI's
independence from political influence:
“The Assembly is particularly concerned by the situation of RAI, which is contrary to the
principles of independence laid down in Assembly Recommendation 1641 (2004) on
public service broadcasting. RAI has always been a mirror of the political system of the
country and its internal pluralism has moved from the proportionate representation of the
dominant political ideologies in the past to the-winner-takes-all attitude reflecting the
present political system." (emphasis added)24
As clarified above, according to the Broadcasting Code two of RAI's Board members
are designated by the Ministry of Economics, whilst the remaining seven are appointed
by the Commissione di vigilanza, which is a parliamentary committee reflecting, as
such, the political composition of the Parliament. As to the two members designated by
the Ministry, it must be noted that for one of them, who acts as President of the CdA,
the appointment must be approved by the Commissione by a two-thirds majority vote.
RAI's CdA, acting unanimously, recently adopted an Ethics Code - reference to which is
made in Article 2(3) of the National Service Contract - that expressly mentions the
principles of pluralism and impartiality among RAI's “General Ethical Principles”.
Pursuant to Article 1(1) of the Ethics Code, the task of monitoring compliance with the
provisions thereof is entrusted to RAI's CdA and Director-General, who is required to
report to the former.
In a recent judgment, no. 69/09, the Court went so far as to affirm the need for
Parliamentary oversight of the removal of RAI's board members even against a literal
interpretation of the Broadcasting Code. According to the wording of the relevant
24
Parliamentary Assembly of the Council of Europe, Resolution 1387 (2004) adopted on 24 June
2004, Monopolisation of the electronic media and possible abuse of power in Italy.
152
provisions of the Broadcasting Code, currently no consultation of the Parliamentary
Supervision Committee (Commissione di vigilanza) is required to remove one of the
RAI’s CdA members appointed by the Minister of Economics; the Minister, thus,
adjured that Professor Angelo Maria Petroni leave his office as a RAI board member.
The Commissione, however, promptly brought an action before the Constitutional
Court, holding that in so doing the Minister had encroached on the constitutional
attributions of the Commissione. In its lengthy grounds of decision, the Court eventually
upheld the Commissione's argument that a systematic interpretation of the relevant
Broadcasting Code provisions in the light of the case-law of the Constitutional Court, as
well as of the arrangements laid down in earlier legislation as to the appointment and
removal of RAI’s board members, implied an inalienable role of the Commissione in the
dismiss of those members.
III. Points for further discussion/Current developments
Of great interest are the last developments regarding public service broadcasting
obligations in the context of the new media. According to the National Service Contract
in force, RAI has several obligations as regards the new media. Article 28 thereof, for
instance, provides for that RAI “experiments with the broadcasting of television content
by means of new broadcasting techniques, such as DVB-H, DMB, DRM, High
Definition, l’IPTV, Wi-Max and every sort of broadband technology” and this includes,
pursuant to Article 29(1)(e), the offer of multimedia contents through pay-TV. As to
satellite broadcasting, the National Service Contract only envisages, under Article
30(1)(a) the transmission of free-to-air programmes, as the encoding techniques
mentioned in letter (b) thereof seem to be exclusively designed to prevent the reception
abroad of television programmes without the necessary broadcasting rights. The NSC
also sets the contents of RAI's satellite broadcasts which must include educational
channels, channels in favour of people with handicaps, and channels promoting
consumer awareness or dealing with environmental issues. Article 6 NSC, in turn, sets
out specific requirements as to the content that must be accessible on RAI's Internet
portal.
Pursuant to Article 26 NSC, whose heading is "Technological neutrality", RAI
undertakes to “transfer” free of charge and without additional costs for the user, its
“public service programming” to the various platforms, in accordance with third-party
rights and without prejudice to specific commercial agreements. The interpretation of
this provision is likely to give rise to debate in academic circles and possibly to
litigation before the national courts. In the first place, as the wording "programming" is
not further qualified, it must be presumed that the obligation covers programmes
broadcast both on RAI's analogue and digital channels. It is much less clear whether the
beneficiaries of this provision are the users or the undertakings operating the other
platforms. Whilst the former option would better reflect the Community law concept of
"universal service", it seems that the obligation to "transfer", rather than to "broadcasts",
refers to platform operators as beneficiaries. It follows, that if RAI fails to transfer its
public service programming to the undertakings operating other broadcasting platforms,
153
those companies are entitled to institute proceedings before a Court to have their rights
enforced; the other possible remedy, at any rate, would be AGCom's enforcement
procedure, which can be initiated even upon initiative of a private party.
The development of new and diversified broadcasting techniques undoubtedly calls on
the Italian legislature to lay down a comprehensive and up-to-date set of rules to govern
the issue. This, however, is at times hard to accomplish, as broadcasting is a rapidly
evolving field: in the absence of guidance from the lawmaker, it would ultimately be for
the courts to determine, in the light of the relevant provisions of EC law, to what extent
the public service broadcasting principles applying to terrestrial linear broadcasting can
be extended to other broadcasting platforms.
154
Poland
Karol Jakubowicz
I.
Introduction
1.
There are 19 public service broadcasters in Poland:
•
Polish Radio (PR): 4 nationwide channels and Radio Polonia, an external service,
•
17 regional PSM radio stations, each a separate company,
•
and Polish Television (TVP): 3 terrestrial channels; 2 generalist programme
services and TVP Info, a news channel, interspersed with regional opt-outs
produced by 16 regional stations comprising that network (also known as TVP3);
and 5 satellite channels: TVP Kultura, TVP Sport, TVP Historia and TVP Polonia,
for the Polish diaspora; and TVP HD, a High Definition service).
All the terrestrial channels of Polish radio are available online. One of those channels,
Polskie Radio Euro, also maintains a large Internet portal, comprising a news service,
podcasts and extensive information about Polish Radio’s programme offer. Also Polish
Television also maintains an Internet portal, comprising a news service, access on
demand to selected programming, and programming information.
Private Radio comprises:
•
3 nationwide channels: two commercial (“RMF FM”, “Radio ZET”) and one
religious (“Radio Maryja”),
•
Several sub-national ones: commercial music formats (Radio WAWA, PLANETA
FM), non-commercial music formats (RMF Classic, Radio Jazz) and a news-andtalk format (TOK FM)
•
Around 200 local radio stations, most forming part of networks.
Private television comprises:
•
1 nation-wide commercial channel (Telewizja POLSAT);
•
Three sub-national, generalist commercial channels (TVN, TV 4, TV PULS),
155
•
Both Telewizja POLSAT and TVN offer bouquets of satellite channels, available
via their satellite platforms “POLSAT CYFROWY” and Telewizja “n” (see below)
•
A network of local television stations in Western Poland (Telewizja ODRA)
Around 50 Polish satellite channels, available (together with international channels) via
3 satellite platforms: “CYFRA+” (2,727 mio. subscribers), “POLSAT CYFROWY”,
(1,380 mio. subscribers) Telewizja “n” (0,508 mio. subscribers).
Cable Television comprises some 600 cable TV systems, reaching over 4.5 million
households. Many of them offer Triple Play, including Internet access. The largest
systems are listed in the following table:
Table: Largest Cable TV Systems in Poland
Operator
Subscribers
Cable TV
Digital TV
No. of
Market share subscribers
towns
No. of
Internet
HHs
UPC Polska
1,000,000
116
22.22%
100,000
358,000
Vectra
711,000
151
15.80%
190,000
175,000
14.71%
70,700
260,000
Multimedia Polska 662,000
ASTER
384,000
3
8.53%
68,000
152,000
TOYA
160,000
4
3.56%
20,000
58,000
INEA
126,000
7
2.80%
45,000
55,500
Stream
Communications
126,000
16
2.80%
n.d.
n.d.
Petrus
45,000
10
1.00%
n.d.
n.d.
Promax
32,000
18
0.71%
n.d.
n.d.
Sat Film
25,000
1
0.56%
n.d.
n.d.
Others
27.64%
IPTV services are offered by three operators: TP S.A. (the incumbent telecom, offering
Videostrada which has some 55,000 subscribers); Multimedia Polska SA (a cable TV
company) and Śląska Grupa Telekomunikacyjna SA, an Internet Service Provider
(offering the JAMBOX service).
156
Video-on-demand is offered by 19 VOD services, of which 14 are offered via the
Internet (others via cable or satellite TV).
Mobile TV is on the way. In October 2008, a contest was launched for the reservation
of frequencies for Mobile TV, providing for no fewer than 10 such services to be
delivered by that system.
According to the Radio Track study of Millward Brown SMG/KRC, between
September and November 2008, nationwide commercial stations were dominant (RMF
FM controlled 23% of the market, Radio Zet -18.4%), the four channels of Polish Radio
had a total of 20.2% market share, and the remainder was shared by other commercial
stations.
As for the main terrestrial television stations, Polish Television was the dominant force
(its three terrestrial channels had 43.7% of the market; TVN 16.7%; Polsat 15.4%, and
the rest was shared by the remaining commercial stations.)
The television advertising market was divided in 2008 in such a way that the terrestrial
channels of Polish Television had 22.5% of the market, and commercial stations shared
the remainder, with TVN (23.5%) and Polsat (23.2%) clearly dominant. As far as the
radio advertising market is concerned, Polish radio had a 14.1% share, with commercial
stations accounting for the rest.
Nearly half of all Poles (53% of men and 45% of women) access the Internet, many to
follow the media online. 67% of Internet users listen to the radio online. 76% have
watched television or video via the Internet.
2.
a)
Constitutional law
Article 14 of the Polish Constitution reads:
“The Republic of Poland shall ensure freedom of the press and other means of social
communication”.
Article 54 states:
“The freedom to express opinions, to acquire and to disseminate information shall be
ensured to everyone. Preventive censorship of the means of social communication and the
licensing of the press shall be forbidden. Statutes may require the receipt of a permit for
the operation of a radio or television station”.
Mention should also be made of Article 61 of the Constitution which grants citizens
“the right to obtain information on the activities of organs of public authority as well as
persons discharging public functions. Such right shall also include receipt of information
on the activities of self-governing economic or professional organs and other persons or
organizational units relating to the field in which they perform the duties of public
authorities and manage communal assets or property of the State Treasury.”
157
Given the importance of the National Broadcasting Council for broadcasting in general,
and PSM in particular (in view of the fact that, among other things, it appoints members
of Supervisory Councils), it is important to mention constitutional provisions relating to
it. Under Article 213 of the Polish Constitution, the National Broadcasting Council
(NBC)
“shall safeguard the freedom of speech, the right to information as well as safeguard the
public interest regarding radio broadcasting and television”. It “shall issue regulations and,
in individual cases, adopt resolutions”.
Article 214 vests the right to appoint members of the NBC in the two chambers of
Parliament and the President of the Republic, with detailed provisions in this regard to
be laid down in the Broadcasting Act. Pursuant to this article,
“a member of the National Council of Radio Broadcasting and Television shall not belong
to a political party, a trade union or perform public activities incompatible with the dignity
of his function”.
b)
Ordinary law
Two statutes now regulate the operation of PSM: the Broadcasting Law of 1992 (with
amendments) describes the remit, structure and supervision of PSM; the Licence Fee
Act of 2005 regulates funding from this source.
aa)
Remit
Public service broadcasters are covered by the general clause in Article 1 of the
Broadcasting Act (BA) which lists the following “tasks of [all] radio and television
broadcasting”:
“to provide information; to ensure access to culture and art; to facilitate access to learning
and scientific achievements; to disseminate civil education; to provide entertainment; to
promote domestic production of audiovisual works”.
The PSM remit is defined in Article 21.1 as follows:
“Public radio and television shall carry out their public mission by providing, on terms laid
down in this Act, the entire society and its individual groups with diversified programme
services and other services in the area of information, journalism, culture, entertainment,
education and sports which shall be pluralistic, impartial, well balanced, independent and
innovative, marked by high quality and integrity of broadcast”.
As will be seen below, BA also goes into considerable detail, regarding specific tasks
encompassed by the remit.
bb)
The legal form of PSM organizations in Poland is that of “sole-proprietor joint stock
companies of the State Treasury”. As joint stock companies, they operate under BA and
under company law, as derogated from, or supplemented by BA. As noted above, public
service radio consists of 18 different companies, 1 at the national level and 17 at the
158
regional level. Polish Television is one company, with the headquarters in Warsaw and
16 regional units, operating as regional stations.
Each PSM company is run by a Board of Management, comprising one to five
members, appointed and possibly dismissed by the Supervisory Council of that
company.
Under Article 29 of BA, the minister in charge of the Treasury acts as the general
meeting of shareholders of PSM companies.
cc)
Funding
Pursuant to Article 31 of BA, PSM companies have the following sources of revenue:
licence fees; default interest for delay in their payment and fines for the use of
unregistered radio and television sets; trade in programme rights; advertising and
sponsorship; other sources. The revenue of these companies may also include grants
from the State budget.
The matter of licence fees is regulated in detail in a special License Fee Act of 2005.
Article 1 of this Act states that “licence fees are collected in order to enable the
companies of public service radio and television to implement the public service remit”,
as defined in Article 21 of BA. The Act sets the level of the radio and combined
radio/TV licence fee. The consumer price index is used to adjust the licence fee
annually.
Articles 31a-31b of BA contain provisions on how PSM companies must account for
the way licence fee revenue is spent.
License fees are collected by the Post Office and transferred to the account of the
National Broadcasting Council which is obliged to remit the money without delay to
PSM companies in line with a formula for dividing the money among them established
every year by itself.
In its judgment of September 9, 2004 (case K 2/03), the Constitutional Tribunal noted
that this source of revenue is not subject to debate in Parliament when the State budget
is discussed and that this offers both the NBC and PSM broadcasters a certain privilege,
designed to ensure the “stability and predictability of spending on the legally defined
PSM remit”.
dd)
Supervision
Pursuant to Article 28 of BA, each PSM company has a Supervisory Council, consisting
of five to nine members. Members of the Council are appointed by the National
Council, with the exception of one member who is appointed by the minister in charge
of the State Treasury. The Supervisory Council elects the Chair from amongst its
members.
159
Under Article 28a, each PSM company, but within them also TVP Polonia and the
regional stations of Polish TV, have programme councils, consisting of 15 members
appointed by the National Council, of which 10 members represent parliamentary
groups. The remaining 5 members are appointed from among persons with a record of
experience and achievement in culture and mass media. The councils’ members
“represent public interests and expectations related to the programming activities of the
company”. The programme councils adopt resolutions evaluating the level and quality
of current programming as well as of the programme schedule. These are submitted to
the Supervisory Council for its consideration and possible action.
Another element of supervision is the National Broadcasting Council (NBC), the
regulatory authority, whose job it is, under Article 6 of BA, “to supervise the activity of
broadcasters within the limits of powers granted to it under the Act”.
II.
Independence of PSM
1.
The jurisprudence1 highlights the need for the existence of independent PSM, wellfunded by the licence fee and protected against outside interference, especially by
Government, for democratic development, operation of democracy, freedom of
expression, media pluralism, culture and education.
In its judgment in Case K 2.03, the Constitutional Tribunal stated:
“Pursuant to Article 213.1 of the Constitution, and to the Broadcasting Act, the National
Broadcasting Council on the one hand safeguards freedom of speech and independence of
the media, and on the other is responsible for the delivery of the public service remit,
covered by ‘the public interest regarding radio broadcasting and television’, highlighted by
Article 213.1”.
1
The relevant jurisprudence of the Polish Constitutional Tribunal encompasses the following
judgments: Judgment of 2 March 1994 (Case W. 3/93) (Christian values); Judgment of 10 May 1994
(Case W. 7/94) (dismissal of members of the National Broadcasting Council); Judgment of 7 June
1994 (Case K. 17/93) (Christian values); Judgment of 28 November 1995 (Case K. 17/95)
(Programme Council and must-carry); Judgment of 13 December 1995 (Case W. 6/95) (dismissal of
members of Supervisory Councils); Judgment of 9 September 2004 (Case K 2/03) (Licence fees);
Judgment of 23 March 2006 (Case K 4/06) (Amendments to the Broadcasting Act).
160
a)
aa)
The Constitutional Tribunal recognises in its decisions the importance of the social
dialogue, the media and media pluralism in the contemporary society (see in detail
below chapter II.2.a)).
It furthermore highlights the task of PSM to provide independent information. (Case K
2/203).
bb)
In its judgment in Case K 2/03, the Constitutional Tribunal also acknowledges the
cultural role of public service television which should provide theatre and cultural
programmes as well as educational contents.
cc)
Contribution to the freedom of expression and the freedom of media
The Constitutional Tribunal further recognises the important role of the public service
broadcasters to safeguard the freedom of speech and the right of information (Case W
6/95, see in detail below chapter II.2.a)).
b)
In its judgment in Case K 2/03, the Constitutional Tribunal states:
“In the contemporary system of democracy, exercise of power is based on social dialogue
which is of crucial importance for the emergence and development of civil society. The
mass media facilitate this dialogue … While noting the importance of the media in
contemporary democratic society, the importance of media pluralism for developing civil
society should be recognized. The legislation should enshrine the coexistence of public and
private media.”
Also in Case W. 6/95, the Constitutional Tribunal recalled the obligation of PSM
broadcasters to provide reliable information about the vast diversity of events and
processes taking place in Poland and abroad and to encourage an unconstrained
development of citizens' views and formation of the public opinion. This, the Tribunal
added, translates into an obligation to maintain internal pluralism in programming.
c)
In Case K 2/03, the Tribunal stated that
“it is impossible to overestimate the importance of the independence of the media and of
the implementation of the public mission in the media in a democratic legal state”.
In Case W. 6/95, the Tribunal noted that one of the reasons for the creation of the
National Broadcasting Council was the need to safeguard the independence of public
service radio and television. Independence is a fundamental value, as only when it is
161
preserved is it possible truly to guarantee freedom of speech and the right to
information.
The principle of PSM independence is not absolute, the Tribunal noted, in view of the
need to protect the public interest and the protection of the interests of the State
Treasury in relation to the financial aspects of the PSM’s operation. However, the
matter of independence is thrown into sharp relief when it comes to considering the
relationship between PSM companies and the government and the administration.
Adoption of the Broadcasting Act in 1992 specifically served the purpose of
transforming government-controlled radio and television into public service media. The
primary objective, the Tribunal noted, was to disassociate radio and television from the
government and the parliamentary majority supporting it, so as to prevent use of these
media as an instrument for the exercise of political power. It was for this reason, the
Tribunal adds, that the Broadcasting Act created three levels of decision-making
concerning the PSM media: the NBC and within the companies themselves Supervisory Councils and Boards of Management. They are designed to serve as
“buffers” between political authorities on the one hand, and, on the other, journalists
and editorial departments engaged in the programming activities of radio and television.
Only the NBC has any relationship to political authorities, though its position should
also be interpreted in terms of the principle of independence, in that it is not directly
related or subordinate to the government or the administration (see in detail chapter
II.2.c)).
2.
a)
In its judgment in Case K 2/032, the Constitutional Tribunal recognizes the connection
between a properly functioning democracy and the media:
“In the contemporary system of democracy, exercise of power is based on social dialogue
which is of crucial importance for the emergence and development of civil society. The
mass media facilitate this dialogue which however - as laid down in Article 213 of the
Constitution - does not release State authorities from the obligation of safeguarding
freedom of speech, the right to information and the public interest in broadcasting”.
Further, the Constitutional Tribunal states the importance of the media and the media
pluralism in this context:
“While noting the importance of the media in contemporary democratic society, the
importance of media pluralism for developing civil society should be recognized. The
legislation should enshrine the coexistence of public and private media”.
The Tribunal also noted that PSM shapes civic attitudes. In Case W. 6/953, the Tribunal
highlighted the fact that the tasks of PSM must be considered in direct relation to the
political rights of citizens. In its judgment in Case K 2/03, the Constitutional Tribunal
2
Judgment of 9 September 2004 (Case K 2/03) (Licence fees).
3
Judgment of 13 December 1995 (Case W. 6/95) (dismissal of members of Supervisory Councils).
162
recalls that one of the tasks of PSM is to provide independent information. In its
judgment in Case W. 6/95, the Tribunal also notes the axiological foundations of PSM,
in that public service broadcasters are directly related to the goal of safeguarding
freedom of speech and the right to information.
Again in its judgment in Case K 2/03, the Constitutional Tribunal notes that in addition
to providing information, the media, and especially public service broadcasting, shapes
personality patterns and social attitudes of a great multitude of listeners and viewers.
Accordingly, their role is cultural, in that the content they provide promotes broadly
understood culture as concerns the Polish language. In this sense,
“public television, as it delivers its remit, can be seen as a public good (by broadcasting
television theatre and cultural programmes, educational content for schools, programming
for the unemployed, for different occupational groups, for the Polish diaspora and for
national minorities)”.
In the same judgment (Case K 2/03), the Constitutional Tribunal recalls that under
Article 1 of BA, PSM media should ensure access to culture and art; to facilitate access
to learning and scientific achievements; to disseminate civil education; to provide
entertainment; to promote domestic production of audiovisual works. It adds that it is
“the public, social and historically-motivated obligation of the Polish State to ensure
implementation of this mission in the interest of everyone who wishes to draw on the
heritage of Polish culture, science and art”.
In Case W. 6/95, the Constitutional Tribunal recalled the obligation of PSM
broadcasters to provide reliable information about the vast diversity of events and
processes taking place in Poland and abroad and to encourage an unconstrained
development of citizens' views and formation of the public opinion. This, the Tribunal
added, translates into an obligation to maintain internal pluralism in programming
which in turn is possible only if PSM maintain clear distance from the government of
the day. And that is why the manner of appointing members of the NBC, the
Supervisory Council and the Board of Management was designed to operate in the way
laid down in BA.
In this Case the Constitutional Tribunal also said, that the 1992 Broadcasting Act
developed the constitutional principles of freedom of speech, right to information and
protection of the public interest.
The Broadcasting Act also defines in detail the remit of PSM. As noted above, Article
21.1 offers this general definition:
services and other services in the area of information, journalism, culture, entertainment,
education and sports which shall be pluralistic, impartial, well balanced, independent and
innovative, marked by high quality and integrity of broadcast”.
163
This is then developed in detail in later paragraphs and articles4.
Article 21 reads further:
“1a. The tasks of public radio and television arising out of the implementation of the
mission referred to in paragraph 1 shall include in particular:
1) production and transmission of national and regional programme services,
programme services for reception abroad in the Polish language and in other
languages as well as other programme services meeting the democratic, social and
cultural needs of local societies,
2) production and transmission of thematic programme services, if a broadcasting
licence has been granted for transmission of the said programme service,
3) construction and operation of radio and television transmitters and relay stations,
4) transmission of teletext services,
5) work on new technologies of production and transmission of radio and television
programme services,
6) production, provision of services and carrying out commercial activities5 related to
audiovisual production, including exports and imports,
7) encouraging artistic, literary, scientific and educational activities,
8) dissemination of knowledge of the Polish language,
9) production of educational programmes and ensuring access by people of Polish
descent and Poles living abroad to such programmes.
2.
Programme services of public radio and television should:
1) be guided by the sense of responsibility for the content of the message and by the
need to protect the good reputation of public radio and television,
2) provide reliable information about the vast diversity of events and processes taking
place in Poland and abroad,
3) encourage an unconstrained development of citizens' views and formation of the
public opinion,
4) enable citizens and their organisations to take part in public life by expressing
diversified views and approaches as well as exercising the right to social supervision
and criticism,
5) assist the development of culture, science and education, with special emphasis on
the Polish intellectual and artistic achievements,
4
Mention should also be made here of an extensive self-regulatory document “The Principles
Guiding the Fulfillment of the Telewizja Polska S.A. Public Mission”, adopted by the TVP Board of
Management
in
2005
(http://s.v3.tvp.pl/repository/attachment/3/5/a/
35ac5b7ebf4e590d783cdac8fda7051e1223892790343.doc), which complements statutory provisions
on the remit with detailed internal regulations.
5
The term “commercial activities” used here refers only to those that are directly involved in the
delivery of the public service remit, i.e. purchase of rights to programming and programme
exchange. Other commercial activities (such as sales of rights, sale of DVDs or paid-for VOD) are
not regarded as involved in the delivery of the remit and are subject to separate accounting.
164
6) respect the Christian system of values, being guided by the universal principles of
ethics,
7) serve to strengthen family ties,
7a) advance the propagation of a pro-health attitude,
8) contribute to combating social pathologies,
9) have regard to the needs of ethnic groups and minorities.”
Under Article 22 “public radio and television broadcasting organisations shall facilitate
direct presentation and explanation of the State policy by supreme State authorities”, in
ways defined by the NBC in a special regulation.
Under Article 23, Public radio and television broadcasting organisations shall enable
political parties, as well as national trade unions and employers’ organizations, to
present their position with regard to major public issues. Again, the NBC is under an
obligation to issue a regulation, specifying the detailed ways in which this is to be done.
Under Article 23a, public radio and television broadcasting organisations shall enable
public service organisations referred to in the Act of April 24, 2003, on Public and
Voluntary Service to provide, without any fee, information about the services provided
free of charge by these organisations. The NBC may issue a regulation on the procedure
of action for this.
Article 24 puts PSM under an obligation to transmit election programmes of entities
participating in elections to the Sejm, the Senate, the local self-government and the
European Parliament. The same applies to the election of the President of the Republic
of Poland. A separate provision relates to referendum programmes in case a referendum
is held.
Under Article 25 public radio and television broadcasting organisations may produce
and transmit programme services in the Polish language and other languages for
receivers abroad. They are also under an obligation to produce and broadcast
educational programmes for schools and other educational institutions, the costs of
producing such programming to be borne by the state budget within the limits
determined in the Budget Act.
b)
The main safeguard, in addition to the Constitution and international agreements, is
provided by Article 188 of the Constitution, whereby the Constitutional Tribunal rules
on the conformity of statutes and international agreements to the Constitution. Article
79 gives “everyone whose constitutional freedoms or rights have been infringed,” the
“right to appeal to the Constitutional Tribunal for its judgment on the conformity to the
Constitution of a statute …”. Finally, under Article 122.3 of the Constitution, the
President of the Republic may, before signing a bill, “refer it to the Constitutional
Tribunal for adjudication upon its conformity to the Constitution.”
As can be seen from this report, several provisions of the Broadcasting Act relating
directly to PSM have been referred to the Polish Constitutional Tribunal for
165
adjudication upon their conformity to the Constitution. In most cases (Judgment of
March 2, 1994, Case W. 3/93; Judgment of June 7, 1994, Case K. 17/93; Judgment of
November 28, 1995, Case K. 17/ 95; Judgment of December 13, 1995, Case W. 6/95) it
upheld the constitutionality of the particular provisions. In two of the mentioned cases
rulings were issued on the implications of Art. 21.2.6 of BA, which states that
“programme services of public radio and television should (…) respect the Christian
system of values, being guided by the universal principles of ethics”.
In Case W. 3/936 the Constitutional Tribunal found that this provision cannot be
construed as meaning that PSM organizations must submit programming before
transmission to another body for assessment of whether this obligation will be
honoured. “Respect” does not mean “propagate” or “disseminate”. This provision does
not impose an obligation to submit programming to ex ante evaluation. When read in
the context of all applicable law, including the duty of the NBC to safeguard freedom of
expression, and the abolition of pre-publication censorship, the provision cannot be
understood as introducing the possibility of pre-transmission assessment of
programming content.
In Case K. 17/937, the Tribunal was again asked whether this provision was in
accordance with the Constitution. For very much the same reasons as in the previous
ruling, the Tribunal found that the provision was constitutional and did not violate the
principle of equality.
The Tribunal has also noted the importance of funding for the independence of PSM
organizations and the performance of their mission. In Case K 2/03 it noted that
“the collection of the licence fees is of significant importance for safeguarding the right to
information and the public interest. The operation of PSM requires a guarantee of access to
funds necessary for the purpose”.
Also in Case K 2/03, the Tribunal noted the need for a system of providing public
funding for the performance of the public mission, including by public service
broadcasters. Besides, the Constitutional Tribunal found in this very judgment that the
provision of BA, which gave the National Broadcasting Council the competence to set
the level of the licence fee, was unconstitutional, since this should be done by statute.
To remedy this, Parliament subsequently adopted the Licence Fee Act of 2005.
c)
In addition to Articles 14 and 54 of the Polish Constitution (see above), mention should
be made here first of Article 22 of BA, which states specifically that
“State authorities may take decisions concerning the functioning of public radio and
television broadcasting organisations only in circumstances specified in the existing
legislation”.
6
Judgment of 2 March 1994 (Case W. 3/93) (Christian values).
7
Judgment of 7 June 1994 (Case K. 17/93) (Christian values).
166
In other words, the authorities may not take any decisions or formal actions vis-à-vis the
public service media without a clear legal basis and authorization - and this is limited to
clearly defined circumstances.
In Case K. 17/958, the Constitutional Tribunal dealt, among other things, with the
Programme Councils of PSM organizations (see below) and with the argument that BA
establishes them, in view of their composition as “guardians of the public interest”. The
Tribunal rejected that argument. While BA states that the councils’ members “represent
public interests and expectations related to the programming activities of the company”,
the councils themselves have been charged with no such task or obligation. Under the
Constitution, it is the task of the NBC to
“safeguard the freedom of speech, the right to information as well as safeguard the public
interest regarding radio broadcasting and television”.
There is a difference, the Tribunal argued, between “representing” the public interest
and “safeguarding” it. In any case, programming councils are not construed as
governing bodies of the companies they operate in. Their role is advisory and their
resolutions are not legally binding.
PSM companies operate under the Broadcasting Act and company law and their
institutional autonomy is safeguarded in a number of ways. They are established and
operate by law, without the need for any licences or permits. The telecommunications
administration is obliged to reserve for them frequencies needed to broadcast.
BA provides many legal and formal safeguards of the independence of PBS. While
NBC members have 6-year-terms, PSM Supervisory Councils have 3-year-terms, and
Boards of Management 4-year-terms to dissociate those terms from that of Parliament.
Members of Supervisory Councils cannot be dismissed, as confirmed by a
Constitutional Tribunal judgment of 13 December 1995 (Case W. 6/95). The
Supervisory Council elects its own Chair. A qualified majority of the Supervisory
Council (at least two-thirds in the presence of at least three-quarters of members) is
needed to appoint, or dismiss, the Board of Management, though a simple majority is
enough to suspend a member of the Board of Management.
The Minister of the State Treasury, acting as the general meeting of shareholders of
PSM companies, may appoint only one member of the Supervisory Council and has no
power to appoint or dismiss members of the Board of Management. Under Article 29 of
BA, the statutes of PBS companies may only be changed by agreement between the
general meeting of shareholders and the NBC.
As a result, the Boards of Management are fully in control of programming and
finances. Supervisory Councils have no power to direct them to do anything, only to
suspend or dismiss their members.
8
Judgment of 28 November 1995 (Case K. 17/ 95) (Programme Council and must-carry).
167
aa)
Supervision of programming
Article 10 of BA authorizes the Chairman of NBC to: (i) require a broadcaster to
provide materials, documentation and information to the extent necessary for the
purpose of supervising the broadcaster's compliance with the provisions of the Act and
the terms of the broadcasting licence; (ii) call upon a broadcaster to cease practices in
respect of production or transmission of programme services, if they infringe upon the
provisions of the Act, resolution of the National Council or terms of the broadcasting
licence; and (iii) when so empowered by a resolution of NBC, to issue a decision
ordering the broadcaster to cease the practices referred to in item ii.
Under Article 30 of BA, the NBC, upon a motion of the Board of Management of
Polish Television, and after having consulted the directors of the company’s regional
branches, determines “the minimum share of programmes produced by the branches in
the transmission time of particular national programme services”, and “the minimum
share of the company’s regional branches in proceeds from licence fees”.
The general meeting of shareholders may not dismiss members of the Supervisory
Council or of the Board of Management. Under Article 29 of BA, “Directions and
prohibitions imposed by the general meeting of shareholders in respect of the contents
of a programme service shall not be binding upon the Board of Management”.
The NBC is therefore authorized to react in ways described above when PSM
broadcasters depart from the provisions of BA concerning the remit. The NBC’s direct
powers vis-à-vis PSM companies are thereby limited.
bb)
Financial supervision
Article 31a. 3 of BA authorizes the NBC to issue a regulation laying down the manner
of keeping accounts and the manner of preparing financial reports submitted to the NBC
“with due regard for the need to observe the principles of openness and transparency in
the use of funds allocated for the pursuit of tasks referred to in Article 21 paragraph 1 in
a manner that would not distort market competition”. Such a regulation, issued in new
form in 2008, does so.
Under Article 8 of the Licence Fees Act, revenue from this source is earmarked
“exclusively for the discharge by public radio and television broadcasters of the tasks
referred to in Article 21 paragraph 1 [of BA] in the amount that shall not exceed the
expenses incurred in connection with the discharge of the same tasks”. The NBC
analyses programme and financial guidelines which PSM companies are obliged to
submit to it, as well as financial reports for the past calendar year and an analysis of
costs specified therein, and on this basis determines by June 30 every year at the latest,
the method of distributing the licence fee proceeds amongst the public radio and
television broadcasting organisations for the following calendar year. If quarterly
licence fee proceeds exceed the value of expenditure on the discharge of tasks referred
to in Article 21 paragraph 1, “the surplus shall be set-off against expenditure for the
discharge of the same tasks in the following quarter of the year”.
168
In general, the NBC makes public its assessment of the performance of PSM companies
in its annual report to the Parliament and the President.
Under Article 31 of BA, shareholders of PSM companies, i.e. the State Treasury, are not
entitled to a share in the companies' profits.
The matter on the remit of public service media regarding new media services (ways of
distribution, e.g. Internet, mobile; different kinds of services, e.g. form, content) has not
been under discussion in the Constitutional Tribunal or elsewhere. Article 21.1 defines
the mission as follows:
services and other services …”
Under Article 21.1a.5, public service broadcasters have as a task to “work on new
technologies of production and transmission of radio and television programme
services”.
These are interpreted as providing the legal foundation for PSM to branch out into new
media services.
New legislation on PSM, a draft Law on Public Tasks in Media Services, is in
preparation. It may change the legal status described here. At the time of writing, the
Lower House of Parliament has passed the law and sent it to the Senate. Some of the
main points of the new legislation, as far as PSM is concerned, are the following:
1. Abolition of the licence fee and its replacement with budgetary appropriations for
the delivery of public service by both PSM and commercial stations, to be paid into
a Public Tasks Fund, controlled by the National Broadcasting Council and divided
between PSM and commercial stations (whose share of the money may not exceed
10%) for the performance of tasks described in “public service programme
licences”; Appropriations to PSM organizations should not fall below the level of
licence fee collection in 2007 (when it amounted to some 880 million zlotys, while
PSM organizations, financed also from advertising, spent a total of 2.5 billion
zlotys);
2. Introduction of “programme licences” to be awarded to PSM stations at their request
for entire programme services, and additionally to PSM and commercial stations for
particular programme items in a contest procedure. The licence would describe the
public service obligations to be implemented by the licensee (respectively in
programme services or in particular programme items), and allocate funds from the
State budget for this purpose;
169
3. Introduction of the institution of “vote of acceptance” by the National Broadcasting
Council of the fulfilment by the broadcaster of tasks specified in the licence; with
the proviso that a member of a Board of Management may be dismissed if the NBC
refuses to pass such a vote and accept that the licence has been implemented well;
4. Separation of regional stations now forming part of Polish TV and their
transformation into separate companies, as a result of which Poland would have 35
PSM companies (2 at the national level, broadcasting nation-wide programme
services, and 17 radio and 16 television regional PSM companies);
5. Termination, when the law comes into effect, of the terms of office of members of
Supervisory Councils and Boards of Management of PSM companies, and of the
members of the National Broadcasting Council, and appointment of new ones.
Adoption of this Law would mean that the Licence Fee Act of 2005 would become null
and void.
The adoption of this Law is provisionally scheduled for the autumn of 2009. It may run
into two kinds of difficulties. First is the possible reaction of the President of the
country, who has vetoed many new laws adopted by the Parliament elected in 2007.
Supporters of the Law have enough votes to overturn a potential veto, so it is speculated
that the President may send the law to the Constitutional Tribunal to check whether it is
in accordance with the Constitution. At best, assuming the law is accepted by the
Constitutional Court, this would delay its entry into force by many months. The second
hurdle may be the need for European Commission acceptance of a change in financing
PSM under State aid regulations. The draft law has not been notified to the
Commission. As many detailed provisions regarding the public service remit and the
level of public funding will only be decided in secondary legislation or in the budget for
each year, and in the programme licences awarded to particular stations, the
Commission may find it difficult to assess the entire new system and especially the
proportionality of public funding. Meanwhile, the licence fee system is to be eliminated
by the end of 2009. There is a real prospect that PSM organizations may be left without
public funding in 2010.
170
Spain
Julián Rodríguez-Pardo
I.
Introduction
1.
Short overview of the (electronic) media market.
The three main subsectors of the media market in Spain are the printed press, radio and
television broadcasting. Each of them has suffered changes in the number of
competitors during the last twenty years, especially in the case of television
broadcasting because of its new means of distribution (cable, satellite, telephone and
digital terrestrial), as well as the rise of Internet thanks to the development of a truly
open commercial telecommunications market.
The EGM - Estudio General de Medios (Mass Media General Study) - was developed
by the AIMC - the Asociación para la Investigación en Comunicación (Mass
Communication Research Association) - and constitutes the biggest database on media
consumption, studying the social penetration of all media, as well as audiences of radio
and television broadcasters, readers of newspapers, Internet users and spectators of
films at cinemas.
According to the last EGM - February/November 2008 -, television continues to be the
leading medium in respect of daily consumption (more than 88.5% of the population,
i.e. more than 36 million people daily connecting with any broadcaster), followed by
radio broadcasting and daily newspapers.
Estimated mass media social penetration
2008
Daily
newspapers
Radio
broadcasting
(readers per
day)
(listeners per day)
42.1%
53.1%
TV broadcasting
Internet
Cinema
(viewers per day)
(users per day)
(spectators per
week)
88.6%
29.9%
4.2%
Data source: EGM (Estudio General de Medios), - February/November 2008, by AIMC (Asociación para
la Investigación en Comunicación).1
1
http://www.aimc.es.
171
The Spanish media market has become truly wide in the last ten years, especially in the
audiovisual field, because of the legal changes on the television market, allowing a
progressive liberalisation, as well as the arrival of DTT. It could be said that we face a
substantial offer when data are projected over a market of 40 million people: more than
106 daily newspapers; more than 17 national radio networks, either private or public; 23
free national DTT programmes, either private or public; 24 public regional radio
networks; 64 free regional DTT programmes, either private or public; 16 major
telecommunications providers; and 785 cinemas, with an overall total of more than
4,000 screens.
Because of its extremely high social penetration, as well as the increasing number of
broadcasters, television keeps receiving the most advertising investment.
Advertising investment by sectors in 2008 (million Euros)
Press
Magazines
TV
Radio
Cinema
Internet
Others
1,575.6
616.6
3,146.0
596.2
22.2
166.9
524.0
Data source: Marketing Directo, 2 February 2009.2
On the other hand, the arrival of DTT and the future analogue switch-off have led to an
increase in the number of digital programmes, both for public and private broadcasters.
The national public television broadcaster, TVE - Televisión Española - is currently
broadcasting 5 digital programmes; and the development of regional public
broadcasters, since 1982, has resulted in a regional television market with a supremacy
of the previously mentioned ones. Either in real broadcasts, or just as a reservation of
frequencies for the future, the current number of these programmes has grown to 32.
Meanwhile, private broadcasters, either with a national or regional scope, have to fight
in this DTT market against the legally permissible extent of the public offer. Every
current national analogue television broadcaster has already started digital terrestrial
transmission and has added new offers to the previous analogue ones, with very small
shares at the moment. Within this national scope, the most successful broadcasters are
ANTENA 3, TELE 5, CUATRO and LA SEXTA, which have developed new DTT
offers, bringing a total of 18 free national private digital programmes.
Especially in the case of the regional scope, private initiatives are finding difficulty in
consolidating their offer, as the power of regional public broadcasters is high, owing to
its tradition and the previous non-existence of private ones; in some cases, because of
these difficulties, assigned digital programmes have not been launched yet. In the case
of Navarra and La Rioja, where no public initiative can be found with regional scope,
the regional private broadcasters lead this market. In the short term, the number of
private regional broadcasters will be 17.
2
http://www.marketingdirecto.com.
172
Free Digital Terrestrial Television Broadcasters
PUBLIC
PRIVATE
NAME
NUMBER OF
PROGRAMMES
NAME
NUMBER OF
PROGRAMMES
TVE
5
ANTENA 3 TV
3
PRISA/SOGECABLE
4
TELE 5
4
VEO TV
3
LA SEXTA
2
INTERECONOMIA
1
DISNEY
1
Data source: Ministerio de Industria, Comercio y Turismo.3
As already mentioned, when reference is made to the national television market the
power of private broadcasters is clear, with four of their offers within the five most
watched; in fact, since the arrival of private television broadcasters, in 1988, the public
one, TVE, has progressively lost its preeminent position. For 2008, TELE 5 led the
share ranking with 18.1%; TVE1 was the second position, with a 16.9% share;
ANTENA 3 reached 16%; CUATRO remained fourth with 8.6%; and LA SEXTA,
obtained 5.5%.4
Unlike the television market, the radio broadcasting market has not yet started a real
digital migration, despite of the existence of a Technical Plan on the issue. Since the
1980s the so-called radio-formula has increased its offer, being mainly musical, while
the so-called generalist-radio only added one network in the 1990s (ONDA CERO) and
another one in the 2000s (PUNTO RADIO).
The national public broadcaster is RNE (RADIO NACIONAL DE ESPAÑA). It
displays a diverse content offer with generalist, classical music, pop-rock music, and
all-news channels, but, despite of its variety, and a high number of stations through the
country, it is not one of the leaders of the market. The number of public regional
3
http://www.mityc.es.
4
http://www.sofresam.com.
173
broadcasters, especially in the case of television services, has grown during the last two
decades; their (increase in) success has usually been proportional to the duration of
them participating in the market.
Either in respect of generalist content radio, or radio-formula, private broadcasters
control the market, with a general national offer of more than 18 programmes, which
cannot always be received on 100% of the territory, as this depends on having enough
local stations to transmit national programming.
National Radio Programmes/Channels
PUBLIC
PRIVATE
RADIO 1
CADENA SER
ROCK & GOL
RADIO CLÁSICA
40 PRINCIPALES
KISS FM
RADIO 3
CADENA DIAL
ONDA CERO
RADIO 4
M80
ONDA MELODÍA
RADIO 5 TODO NOTICIAS
RADIOLÉ
EUROPA FM
RADIO EXTERIOR
MÁXIMA FM
PUNTO RADIO
RADIO INTERECONOMÍA
RADIO WOP
RADIO MARCA
RADIO MARÍA
CADENA COPE
CADENA 100
Data source: AIMC (Asociación para la Investigación en Medios de Comunicación) and Radio España.
Principales cadenas de radio en España.5
Within the national radio market, the media group PRISA is the leading company, either
referred to generalist or radio-formula content: SER, CADENA 40 and CADENA
DIAL. The first one broadcasts generalist content, which can be translated as news and
magazines for the Spanish country; the second one is a Top 40 Hits List; and the third
one is contemporary Latin pop. The second leading network is COPE, which belongs to
the Catholic Church and has an ideological conservative position, linked with the PP (Popular Party).
In respect of their market share, CADENA SER has an average of 4.5 million
listeners/day; CADENA 40 reaches 3.1 million listeners/day; COPE has 1.8 million
5
http://www.aimc.es, http://www.radioes.net.
174
listeners/day; ONDA CERO is fourth also with 1.8 million listeners/day; and CADENA
DIAL has around 1.5 million listeners/day.6
As regards the daily newspapers market, there are no public/State titles, either nationally
or regionally. The selling power of regional and local newspapers is a defining
characteristic of the country, together with the importance of sports titles, such as
MARCA, the leader of the whole market. In respect of general content ones, EL PAÍS,
belonging to PRISA media group, or sells more than 425,000 copies per day and has
more than 2.2 million readers. It has ideological links with the PSOE, the Socialist Party
of Spain.
Top 3 daily newspapers number of daily readers ranking
February-November 2008
TITLE
CONTENT
READERS
MARCA
Sport
2,597,000
EL PAIS
General
2,218,000
EL MUNDO
General
1,348,000
7
Data source: AIMC (Asociación para la Investigación en Medios de Comunicación).
Finally, and in respect of the telecommunications provider, TELEFONICA DE
ESPANA is the leading company of the market, after being a State monopoly between
its foundation, in 1924, and 1996, when RETEVISION started providing land-line
services. Its market tradition, to some extent, has led to the current situation where
TELEFONICA still rules the three main sectors of the telecommunications market, with
a 2008 market share of 79.4% on telephone land-line, 45.5% on mobile telephones, and
63.5% on Internet access provision.8
2.
a)
Constitutional law
Article 20 of the Spanish Constitution of 1978 lays down the main legal principles in
respect of public mass media, freedom of information and freedom of expression, as
well as their limits. The Article is included within Title I, Chapter 1, which embraces
“Fundamental rights and duties”, as well as “Fundamental rights and public liberties”.
Thus, Article 20 has a transcendental connection with the protection of Human Rights
6
Data source: AIMC (Asociación para la Investigación en Medios de Comunicación),
http://www.aimc.es.
7
Data source: AIMC (Asociación para la Investigación en Medios de Comunicación),
http://www.aimc.es.
8
Data source: Comisión del Mercado de las Telecomunicaciones.
175
and Dignity.9 However, in respect of mass media, it must also be mentioned that, owing
to the political and administrative organisation of the country, with a central
government, regional governments and city councils, Article 149 must be considered, as
it refers to the transfer of some jurisdiction competences to regional and local
administrations, including commercial, intellectual property, and press, radio and
television regulation. These competences, relating to the mass media sector, have
mainly led to some regulation measures on: audiovisual independent authorities,
establishment of regional public radio and television broadcasters, organisation and
control over local radio and television stations, as well as some measures on specifics of
commercial communications.10
“Article 20.
1. The following rights are recognised and protected:
a) the right to freely express and disseminate thoughts, ideas and opinions by word, in
writing or by any other means of communication;
b) the right to literary, artistic, scientific and technical production and creation;
c) the right to academic freedom;
d) the right to freely communicate or receive accurate information by any means of
dissemination what so ever. The law shall regulate the right to invoke personal conscience
and professional secrecy in the exercise of these freedoms.
2. The exercise of these rights may not be restricted by any form of prior censorship.
3. The law shall regulate the organisation and Parliamentary control of the social
communications media under the control of the State or any public agency and shall
guarantee access to such media to the main social and political groups, respecting the
pluralism of society and of the various languages of Spain.
4. These freedoms are limited by respect for the rights recognised in this Title, by the legal
provisions implementing it, and especially by the right to honour, to privacy, to personal
reputation and to the protection of youth and childhood.
5. The confiscation of publications and recordings and other information media may only
be carried out by means of a court order”.11
Concerning public service media, Article 20 alludes to three main issues: (a) the
recognition of the right of freedom of expression and information - which comprises
freedom of broadcasting; (b) the need for a legal organisation and Parliamentary control
of the mass media under State entitlement; (c) the recognition of the right of access to
these media by any social or political significant group.
Regarding freedom of broadcasting, the Spanish Constitution is the only legal text with
an explicit recognition, as part of freedom of information and freedom of expression
9
Art. 10: “(…) 2. The principles relating to the fundamental rights and liberties recognized by the
Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and
the international treaties and agreements thereon ratified by Spain”.
10
http://www.constitucion.es . The existence of Article 149 gave birth in 1982 to the regional public
broadcasters of Catalunya and Pais Vasco: TV3 and EITB.
11
http://www.constitucion.es.
176
rights; besides, and as Article 20 states, these freedoms shall be exercised by word,
writing or any means of communications, which obviously includes radio and television
broadcasting.
Further, and as a member of the Council of Europe, Spain is bound to respect the 1950
European Convention on Human Rights, as Article 10 of the national Constitution states
too; these freedoms shall be carried on without any public/State interference, although
the launch of audiovisual mass media shall need a governmental authorization.
Besides, the same 1950 European Convention on Human Rights settles the limit of
these freedoms
“in the interests of national security, territorial integrity or public safety, for the prevention
of disorder or crime, for the protection of health or morals, for the protection of the
reputation or the rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary”.12
In other words, it is the public interest and personal fundamental rights which should be
considered by the Courts in the so-called “balance of rights”.
b)
Ordinary law
aa)
Remit
The Ley 17/2006, de 5 de junio, de la Radio y la Televisión de Titularidad Estatal (Act
17/2006, 5 June 2006, on Radio and Television under State Entitlement) has developed
a real framework for the public broadcaster, as well as those fundamental rights
considered by Article 20 of the Spanish Constitution. Its Article 2 made a first attempt
at a definition of public service media belonging to the State, qualifying them as
“an essential service for the community, in order to achieve the cohesion of democratic
societies”,13
through a display of radio and television channels aiming to satisfy the people’s need
for information, culture, education and entertainment; further, it must spread the identity
of the Spanish society and its cultural diversity, promote the Information Society,
pluralism, Constitutional values, as well as the access right to significant political and
social groups.
Regarding the recognition of the right of access to these media by any socially or
politically significant group, the 2006 Act intended finally to develop it, after almost 30
years of its recognition in the Spanish Constitution.
Article 3 of the 2006 Act remarks that the remit of RTVE includes,
“the promotion of democratic participation through the exercise of the right of access”.
12
European Convention on Human Rights, Article 10 (2).
13
Ley 17/2006, de 5 de junio, de la Radio y la Televisión de Titularidad Estatal (BOE, 6.6.2006).
177
The proceedings and rules were legally approved in June 2007 by the Board of
Managers and included recognition as significant political and social groups being given
to political parties, regional or national trade-unions, business owners associations,
religions, non-profit social organisations and associations.14
Once again, a general declaration was included in the definition of public service media;
however, this time the following articles of the Act went deeper into the issue, outlining
these and other commitments (Article 3):
•
To promote the knowledge of the constitutional principles and civic values.
•
To guarantee professional independence in respect of objective, pluralistic and
truthful information, distinguishing between information and opinion.
•
To promote democratic debate.
•
To promote the access right as a means of achieving a democratic debate.
•
To promote Spanish cultural and linguistic diversity.
•
To promote the exchange of information and knowledge between European Union
States and citizens.
•
To display international radio and television channels in order to promote Spanish
culture.
•
To broadcast a wide diversity of subjects and genres, focused on every different
target and especially dealing with public interest issues.
•
To promote Spanish cultural productions, especially the audiovisual ones; as well as
European and independent content.
•
To support the social integration of minorities.
•
To support equality between men and women.
•
To promote artistic, cultural, scientific and historic knowledge.
•
To promote consumers’ rights, guaranteeing the right of reply.
•
To protect and preserve the television historic audiovisual files.
•
To cater for the widest possible audience, in terms of quality, diversity, innovation
and ethical commitment.
•
To protect children and youth.
•
To promote peace and ecological values.
14
http://www.rtve.es.
178
Just a few days after approval of the Law, the Spanish Parliament approved the socalled “Primer Mandato-Marco a la Corporación RTVE, de 30 de junio de 2006” (1st
Legal Framework Commandment to RTVE Corporation, 30 June 2006), which
developed all the above-mentioned items, displaying the RTVE public service duties for
the next nine years - starting in 2008 - in an unprecedented milestone in the current
Spanish democracy.
Although the Mandato-Marco does not lay down in a specific way some of the public
service principles included in the 2006 Act - especially those concerning abstract
constitutional and civic values -, it develops some others with vital influence as regards
the type of content to be broadcast, as well as the financial structure of RTVE, under the
premise of quality programming:
“The Act certifies the public service identity of the State’s radio and television,
establishing the need to combine social profitability and a duty to reach the widest possible
market. It also endows specific content to the public service function, requiring quality
programming, which includes related and interactive services and permits the fostering of
Spanish audiovisual production in Spanish as well as other co-official and European
languages”.15
The text marked the programming objectives under the public service concept (Articles.
21 to 28):
•
Concerning its educational purpose, RTVE shall pay special attention to issues such
as older people, immigrants and minorities’ integration, health, consumers’ rights,
employment, road safety, ecology, natural environment, religious beliefs, economy,
education and media literacy.
•
Information will constitute a central axis of RTVE’s content offer, as it must serve
as a place for public debate, promoting thinking, knowledge of reality, critical
attitude and civic participation.
•
RTVE will also present a quality entertainment offer, which shall not interfere with
the general objectives of its public service duties.
•
The Board of Managers of the new Corporation will assign formats, times and
schedules for the exercise of the access right by significant political and social
groups, once the Counsellors’ Council has expressed its views and following the
rules established by the Audiovisual Authority.
bb)
Structure/Organisation
Regarding the legal entitlement of radio and television broadcasting to the State, the Ley
4/1980, de 10 de Enero, del Estatuto de la Radio y la Televisión (Act 4/1980, 10
January 1980, on the Statute of Radio and Television), established for the first time a
legal definition of radio and television broadcasting and lasted until 2006; and although
it was supposed to focus on the organization and parliamentary control of the national
15
Primer Mandato-Marco a la Corporación RTVE, de 30 de junio de 2006, (BOE, 30.6.2006).
179
public broadcaster RTVE, in fact it went further through a configuration of both
markets - which did not develop into problems for the radio broadcasting.
Its Article 1 stated:
“1. Radio and television broadcasting are the social mass media to be considered under this
Statute.
2. Radio and television broadcasting are essential public services, legally entitled to the
State.
(…)”.16
Its Article 2 continued:
“1. This current Statute, and any complementary technical order, constitute the basic legal
framework of radio and television broadcasting public services and should be applied
through the whole national territory.
2. The national Government shall concede the direct management of a third channel to the
Regions, regarding the authorization of the Congress and the Senate; this third channel will
be under State entitlement and will only broadcast within the scope of each Region”.17
This conception of television and radio broadcasters as public services under State
entitlement, whether they belonged to private owners or not, has guided the whole
regulation of those media in Spain for more than 25 years; not because of the real
impact on the content of their character as public services but because of the reservation
to the State of the right of broadcasting, which meant that the liberalisation of the
television market developed very slowly - which did not happen in the case of radio
broadcasting, which has always mainly worked under private initiatives.
In 1999, the Real Decreto 1287/1999, de 23 de julio, por el que se aprueba el Plan
técnico nacional de la radiodifusión sonora digital terrenal (Royal Decree 1287/1999, 23
July 1999, on the approval of the National Technical Plan on Digital Terrestrial Radio
Broadcasting) recalled that direct management of this new radio broadcasting modality
belonged to RTVE, the public broadcaster, while indirect management still belonged to
private broadcasters.18
In 2005 the Real Decreto 944/2005, de 29 de julio, por el que se aprueba el Plan
Técnico Nacional de la Televisión Digital Terrestre (Royal Decree 944/2005, 29 July
2005, on the approval of the National Technical Plan on Digital Terrestrial Television)
16
Ley 4/1980, de 10 de Enero, del Estatuto de la Radio y la Televisión (BOE, 12.1.1980).
17
Ley 4/1980, de 10 de Enero, del Estatuto de la Radio y la Televisión (BOE, 12.1.1980).
18
Real Decreto 1287/1999, de 23 de julio, por el que se aprueba el Plan técnico nacional de la
radiodifusión sonora digital terrenal (BOE, 26.7.1999). In 2006, Real Decreto 964/2006, de 1 de
septiembre, por el que se aprueba el Plan técnico nacional de radiodifusión sonora en ondas métricas
con modulación de frecuencia (Royal Decree 964/2006, 1 September 2006, on the approval of the
National Technical Plan on FM radio broadcasting), expressed the same principles.
180
maintained this legal situation, distinguishing again between direct and indirect
management of the right to television broadcasting.19
Finally, in 2006, and as regards the need for a legal, economic and structural reform of
the national public broadcaster, the new Ley 17/2006, de 5 de junio, de la Radio y la
Televisión de Titularidad Estatal (Act 17/2006, 5 June 2006, on radio and television
under State entitlement), changed the legal appreciation of public service radio and
television, as well as its legal entitlement, transforming RTVE into a Corporation,
following the BBC model:
“Article 1.
This Act aims to regulate the public service of radio and television broadcasting under
State entitlement and to establish the legal framework for those entities asked to develop
the provision of the said services”.
“Article 3.
1. The management of public service radio and television broadcasting is under entitlement
to the Corporación Radio y Televisión Española, RTVE, which will be directly exercised
by its subsidiary societies (…).”20
Although without an explicit mention, the definition of public service broadcasting as
linked with the public broadcaster implicitly suppressed the so-called indirect
management of broadcasting by private companies, making a clear difference between
public broadcasters’ obligations and private broadcasters’ ones; besides, the legal
entitlement of radio and broadcasting to the State is restricted to the national public
broadcaster, i.e. RTVE (RNE and TVE).
Since the 2006 Act, RTVE - Radiotelevisión Española - has taken the form of a
corporation, with the total monetary stock belonging to the State. This corporation will
develop its functions through two State companies: the television broadcaster, TVE Televisión Española -, and the radio broadcaster, RNE - Radio Nacional de España;
TVE currently displays an offer of 5 digital programmes, LA PRIMERA, LA 2,
TELEDEPORTE, CLAN TV and 24 horas; RNE currently displays an offer of 4
national programmes, RADIO 1, RADIO CLASICA, RADIO 3 and RADIO 5 TODO
NOTICIAS, as well as an international programme - RADIO EXTERIOR -, and a
regional programme in Catalunya region - RADIO 4.
Its management and government belong to the Board of Managers, with 12 members
acting for a term of 6 years, and all of them elected by the Spanish Parliament: the
election of eight of them is done by the Congress; the election of the other four is done
by the Senate; two of the eight members elected by the Congress will be proposed by
the two most significant trade-unions within RTVE; in every case, 2/3 of the votes will
19
Real Decreto 944/2005, de 29 de julio, por el que se aprueba el Plan técnico nacional de la televisión
digital terrestre (BOE, 30.7.2005). Previously, the Ley 10/2005, de 14 de junio, de Medidas
Urgentes para el Impulso de la Televisión Digital Terrestre, de Liberalización de la Televisión por
Cable y de Fomento del Pluralismo, (Act 10/2005, 14 July 2005, on Urgent measures for the
promotion of Digital Terrestrial Television, liberalization of television by wire and promotion of
pluralism), stated in its Article 1: “Radio and television broadcasting by hertzian waves are public
services (…). Its indirect management will require an administrative concession.” (BOE, 15.6.2005).
20
Ley 17/2006, de 5 de junio, de la radio y la televisión de titularidad estatal (BOE, 6.6.2006).
181
be required. This Board of Managers will carry on its executive direction functions
through its President, who will also be the President of the corporation (Articles 9, 10
and 11).
There will also exist a Board of Counsellors, representing Spanish society in the
Corporation, with a whole of 15 members; three of them will be elected by the
Economic and Social Council; two of them by the Consumers’ and Users’ Council; and
one by each of the following: the Foreign Affairs Ministry, the Spanish Youth Council,
Women’s Institute, disabled people’s associations, General Council for Immigration,
Academy of Television Arts and Sciences, Academy of Cinematographic Arts, Council
of Universities, advertisers’ associations, and journalists’ associations.
The exercise of the right of social or political significant groups to access these media
will be done through two different modalities: first, whenever these groups appear as
sources or suppliers of information and opinion in the regular content of the broadcast;
secondly, in a direct way, under the above-mentioned assignment of specific formats,
times and schedules for each group. At the end of each semester, a two-week deadline
will begin for receipt of the respective claims of those groups which consider
themselves not to have been represented during the past six months.
This right was finally put into practice on 1 January 2009 with the publication of the
necessary proceedings to exercise it, and understanding it as a tool for guaranteeing
content pluralism.
cc)
Funding
In respect of its funding, TVE will have a mixed regime based on State financial aid,
from the yearly State General Budget, and on advertising revenue, without specific
limits on each issue; however, the State monetary aid shall only be applied over public
service duties, not exceeding the real costs incurred.
dd)
Supervision
There will be two Councils for News Affairs, with the aim of supervising news
accuracy, independence and truthfulness of information.
The Commissions formed by the RTVE Board of Managers in order to control the
exercise of the right of access by any social or political significant group are as follow:
in the case of the television broadcaster, TVE, its General Manager, the News General
Editor, the General Content Manager and the Information Studies Manager; in the case
of the radio broadcaster, RNE, its General Manager, the News General Editor, the
General Content Manager, the radio channel 1 Manager (RNE1) and the 24 hours news
channel Manager (RNE 5 TODO NOTICIAS).
Beside these internal supervisory bodies there are several external bodies that supervise
in some way the activities of RTVE. An internal Committee of the Congress follows the
activities of RTVE. The accounts of RTVE are audited and controlled by the Spanish
Court of Auditors and by the Inspectors of the Ministry of Economy.
182
II.
Independence of PSM
1.
a)
Constitutional law context
Although the Spanish Constitutional and Supreme Court do not address directly the
remit of public service media they dealt with the issue of the remit of public service
media and its function in a democratic order in several cases which mostly concerned a
strike and the question of whether and to what extent there is an obligation of
“minimum services”.
The Supreme Court thereby states that the idea of essential services refers to the nature
of those interests to be satisfied by its provision, linking with fundamental rights, public
liberties and those other rights protected by the Constitution (see in detail chapter II. 2.
a)). The Constitutional Court states that public service media guarantee the fundamental
right of citizens to receive free and pluralistic information. According to the Court,
within the essential services provided by radio and television broadcasting, there must
be a distinction between those that can be qualified as imperative ones, in order to
satisfy the essential needs of the public (see in detail chapter II. 2. a)). In another case,
which concerned the appeal of two private companies and the order of the provincial
Delegate of the National Government to close down, the Court recognised the right to
qualify television broadcasting as a public service under State entitlement, owing to the
granting of certain rights to citizens which must be provided by the State (see in detail
chapter II. 2. b)).
It can therefore be noted that the Supreme and Constitutional Court acknowledge the
extensive effect which broadcasting, and especially the programmes qualified as
“essential services”, have on the fundamental rights and public interests and thereby on
the democratic and information society.
b)
As already mentioned, the remit of public service media has only been covered
indirectly by the afore-mentioned cases - cases that will be scrutinised in more detail in
chapter II. 2. a) and b). It can be summarised that the Supreme and Constitutional Court
do recognise the information role of broadcasting which led them to the view that also
in cases of a strike the provision of “essential/minimum services” may be necessary.
c)
In the relevant cases the Court did recognise the right to communicate and receive
truthful information with respect to any mass media; however, there has not been the
explicit conclusion of the Court that truthful information and the important role of
183
public service broadcasting in this respect require special protection of the
independence of public service broadcasters regarding the programming and their
funding. The jurisprudence of the Constitutional Court in the cases concerning appeals
of private companies (see chapter II. 2. b)) suggests that the legislator has a large
margin of appreciation in the implementation of the broadcasting system. Consequently,
the scope of protection is laid down in the ordinary laws, which have not been the
subject of judicial proceedings to date.
2.
a)
Besides the question of the direct or indirect management of public service, understood
as a legal entitlement of the right of broadcasting (see in detail below chapter II.2.b)),
neither the Spanish Constitution nor the Constitutional or Supreme Courts have gone
further in the explanation of its remit, supervision, independence or financial funding.
However, it is possible to outline here some recent case-law which, implicitly,
surrounded the issue21: the cases raised the question of defining minimum services on
public service television during national general strikes, and questioned the
Government’s rules which established those minimum services.
Almost every appeal before the Supreme Court (STS) and the Constitutional Court
(STC) was filed by the national trade-unions, which disagreed with the extension of
those minimum public services settled by a Governmental order. Whether referring to
the direct management of the public broadcasting service, or indirect management, the
controversy appeared after the Government made it compulsory to broadcast the
ordinary schedule of programmes - but pre-recorded - including the live production of
news programmes, which, in the view of the petitioners, exceeded the supposed
minimum services and was in fact a restriction of their constitutional right to down
tools.
In respect of the Supreme Court:
•
in STS 20-2-1998 it judges this case in the framework of a partial strike in RTVE,
from 11.30 to 13.30 and 18.30 to 20.30, after a general establishment of the
minimum services by the Government. The Supreme Court believes that, despite the
qualification of radio and television broadcasting as essential services, this
consideration does not justify the establishment of minimum services, as it will
depend on each particular strike. In this particular case, the Court states that the
negative consequences on the general programming and news programmes are very
slight, owing to the strike time schedule, which will allow those news programmes
to be broadcast at any other moment of the day.
21
Cases STS 20-2-1998; STS 15-9-1995; STS 17-1-2003; STS 2-4-2004; STS 22-3-2004; STS 16-52005; STS 4-6-2006, STC 183/2006, 19-6-2006; STC 193/2006, 19-6-2006; and STC 191/2006, 196-2006.
184
•
in STS 15-9-1995 it judges a similar case in RTVE, but only with a partial strike of
one hour in the morning, from 10.00 to 11.00, and one hour in the evening, from
21.00 to 22.00. The Supreme Court estimates that this schedule is not a significant
drawback for the audience, given that news programmes can be provided at a
different time. In those circumstances, the settlement of minimum services would
not be necessary at all.
•
in STS 17-1-2003 it recalls, in another similar case, that the idea of essential
services refers to the nature of those interests to be satisfied by its provision, linked
to fundamental rights, public liberties and those other rights protected by the
Constitution; besides, it states that essential services are not always prevented by a
strike, making it necessary to explore every single case. However, the Court argues
in this case differently from in the ones cited above, considering those minimum
services to be proportional, as the audience of RTVE will perceive the strike
because of the pre-recorded programmes substituting the ordinary ones.
•
in STS 2-4-2004 it considers that “the importance of information (…) is general in
Spain; but the importance of each particular news bulletin cannot be measured
beforehand, in order to reduce the time of news programmes”. To keep producing
and broadcasting news during a strike is related to the right to information provided
by Article 20 of the Spanish Constitution, and the right to strike has one of its limits
in this right.
•
in STS 4-6-2008 it judges a case in respect of a strike involving indirect
management of the television broadcasting right, in the private company TELE 5.
The strike was due to last for 10 days. The Employees’ Representative Committee
considered that the rules establishing the minimum services for a broadcaster which
is an indirect manager of the public service are excessive, as they embrace entire
pre-recorded programming within the ordinary schedule, the provision of live news
programmes and the broadcasting of public interest official statements. However,
the Court considered these measures non proportional and able to remove the ability
of the audience to see the effects of the strike.
•
in STS 22-3-2004 it refers to a strike with the telecommunications infrastructure
provider RETEVISION, and it judged an appeal made by a trade-union. The rule
fixing the minimum services does not impose a number of workers or hours, but it
defines essential services as the guarantee of a normal provision of the service,
which carries the hertzian television signal nationwide. The Court agrees with this
rule and rejects the appeal.
In respect of the Constitutional Court:
•
in STC 191/2006, STC 183/2006, STC 184/2006 and STC 193/2006, all on 19 June
2006, it states that a strike cannot mean the full interruption of a public service, but
only the non-customary functioning of it. The right to strike can be diminished
because of its connection with other Constitutional rights, restricting its exercise, or
totally blocking it, and it can also happen in a reciprocal way.
185
The Court does not hold that any productive activity should be considered as
essential, except when in those cases the provision of goods requires the
maintenance of the service, but only under proportional measures. The
classification of television and radio broadcasting as essential services cannot
suppress the right to strike, but certain rules must be established that allow the
provision of goods, rights and freedoms essential to citizens. In any strike, a
reasonable agreement must be reached between workers’ rights and consumers’
rights. Within the essential services provided by radio and television broadcasting,
it is necessary to identify those that can be qualified as imperative ones, in order to
satisfy the essential needs of the public.
Regardless of the question of which services are to be qualified as “essential”, it should
be noted that in the mentioned cases the Court stresses the essential role of media and
especially the audiovisual media as a guarantor of free formation of public opinion
which after all led to the establishment of public service broadcasting, ensuring the
provision of free and pluralist information.22 The Court underscores the “essential”
character of public service broadcasting which the Court considers a consequence not
only of explicit legislative determination but also of its impact on the exercise of the
fundamental rights to communicate and receive information freely.23
As regards the case, the right to strike clashes with the right to communicate and receive
truthful information from any mass media, recognised by Article 20 of the Spanish
Constitution. Further, the characterisation of these services as essential does not depend
only on the rule-maker, but depends also on its consequences regarding Article 20
rights.
However, in those cases where pre-recorded programmes refer to information, Article
20 would restrict in a non-proportional way the right to strike, because any news
included in a pre-recorded programme can obviously be broadcast 24 hours later, as it
lacks the requisite of immediateness. Besides, the regular broadcasting of live news
programmes would require the supply of such necessary works, which would restrict the
right to strike.24
Although in this case the Court decided in favour of the right to strike, it recognised the
constitutional responsibility to provide those essential services, which can be qualified
22
STC 183/2006.
23
STC 184/2006.
24
Apart from the implicit characterisation of public service media content, made by these two courts,
in respect of national television broadcasting, there are some other cases concerning other minor
issues that could be of interest:
STC 36/2003. The Constitutional Court recognises the right of a political party to freedom of
expression through the use of free political advertising on television and radio, despite not being
registered in the Electoral Board of Tarragona (a province), but being registered in the National
Electoral Board.
STS 7-10-2002. The Supreme Court recognises the right of the regional public broadcaster of
Catalunya -- TV3 and CANAL 33 -, not to broadcast any part of its programming in the Spanish
language. The Court estimates that its programming offer in the Catalan language is legitimate
compensation for the influence of the Spanish language broadcasters in that geographic scope.
186
as imperative ones, in order to satisfy essential needs of the public. Also in the key
sentence in 1994, the STC 31/1994, 31 January (see following chapter b)) the
Constitutional Court entrusted public service broadcasting with the granting of certain
rights to citizens which must be provided by the State.
Owing to the lack of further jurisprudence on the remit of PSM, it is necessary to go
back to the ordinary laws.
Furthermore, the Mandato-Marco implemented the design of the future strategic lines of
content broadcast to be followed by RTVE (Articles 29 to 41), some of them through a
too general description:25
•
The definition of “Contratos-Programa” (Programming-Contract) as the new key
concept defining the concrete schedule of channels and programmes for the public,
in respect of both RNE and TVE.
•
The understanding of RNE and TVE’s offer under universal and free access,
including its presence in the new Information Society technologies. Specifically,
and under the 1st Contrato-Programa, TVE is entitled to be present in the new
mobile technologies, displaying a concrete offer to reach the youth market.
•
The existence of regional disconnections through regional RTVE stations.
•
The promotion of RNE and TVE programming within the specific age target 14 to
45.
•
The launch by RNE of an adequate number of different channels, identifying its
target and countries receiving their signal.
•
The display by TVE of a generalist programming offer, through TVE1 and LA 2,
including the following television genres: news, international and national fiction,
sports, TV movies, children and youth, quizzes and games, documentaries, musical
and variety and religious programmes.
•
The display by TVE of a thematic offer, currently represented by: 24 HORAS news -, TELEDEPORTE - sports -, CLAN TV - children and youth - and two
satellite channels - DOCU TVE and CANAL CLASICO.
The same articles of the Mandato-Marco included the future percentages of production
to be made by RTVE, once considered its public service role and the reality of the
television market; curiously, while the generalist offer must reach 60% of own
production, the thematic channels should only reach 20%:
•
25
News programmes shall be entirely produced by RTVE 100% of own production.
Primer Mandato-Marco a la Corporación RTVE, de 30 de junio de 2006, (BOE, 30.6.2006).
187
•
Entertainment programmes shall require a mixed formula of co-production, either
for purchase of rights, or artistic and creative contracting - between 55% and 60% of
own production, depending on the type of programme.
•
Exclusive alien production will mainly focus on the purchase of broadcasting rights
on international films, soaps, dramas, comedies, documentaries, sports and big
events.
Finally, Article 42 concerns the issue of the Contrato-Programa, considering it as the
tool to define the specific objectives of RTVE in respect of public service duties, as well
as its financing support in order to achieve them. The Contrato-Programa will only last
for three years and will have to consider methods of control for accomplishing its
objectives.
The 1st Contrato-Programa refers to the period 2008-2010 and establishes the following
main goals:
•
TVE will have an offer of 8 channels in 2010, one of them in High Definition
Technology.
•
A minimum of 72,360 broadcasting hours in 2010.
•
The preservation of the six current RNE channels.
•
A progressive decrease of advertising time and revenue in TVE, reaching 10
minutes per hour in 2009, as opposed to the 12 minutes of private broadcasters.26
26
http://www.rtve.es. Regarding private media, the Ley 10/1988, de 3 de mayo, de Televisión Privada
(Act 10/1988, 3 May 1988, on Private Television), referred in Article 3 to the indirect management
making compulsory its inspiration on Article 4 of the Ley 4/1980, de 10 de enero, del Estatuto de la
Radio y la Televisión (Act 4/1980, 10 January 1980, on the Statute of Radio and Television), already
mentioned.
These principles did not have, because of the lack of further development in the past, any specific
consequence over private broadcasters’ content; however, the Resolucion de 25 de enero de 1989, de
la Secretaria General de Comunicaciones, por la que se aprueba el Pliego de Bases del Concurso
para la Adjudicación del Servicio Publico de Televisión, en Gestión Indirecta (Resolution of 25
January 1989, on the approval of the Bases for the public contest on the assignment of public service
television, under indirect management), made the following compulsory for the future broadcasters:
- To guarantee freedom of expression and ideological pluralism.
- To broadcast a daily minimum of 4 hours, and a weekly minimum or 32 hours.
- To respect the following production percentages: 15% of own production; 40% of European Union
States production; and 55% of the broadcast done in Spanish.
- To guarantee that 40% of broadcast commercial films must have been produced by any European
Union State, and within it, a minimum of 50% must be made in Spanish.
- Not to broadcast any commercial film until two years after its launch in cinemas, except in the case
of a film made for television, or the financing of 30% of its cost by the broadcaster.
- To broadcast free of charge any public interest communication at the request of the Government.
188
Regarding the ordinary law, the Mandato-Marco will be under the control of the
Spanish Parliament: it is the Congress, together with the Senate, the institution in charge
of fixing its duties by Law. Obviously, the Board of Managers will be responsible for
the achievement of these goals, as the head of the Corporation. Its President will have to
assist the Parliament on those occasions when the deputies and senators require him to
do it.
In respect of this Mandato-Marco, the Board of Managers of the new corporation will
assign formats, times and schedules for the exercise of the right of access by significant
political and social groups, once the Counsellors Council has been heard and following
the rules established by the Audiovisual Authority - non-existent in Spain nowadays.
Furthermore, and in respect of the Contrato-Programma, its approval will have to be
signed by the Corporation RTVE and the national Government, and finally be approved
by the Ministries Council, after its review by the Parliament.
b)
There are two key sentences from the Constitutional Court, which formed the principles
for the legislator in the implementation and establishment of the broadcasting system in
Spain:
The STC 12/1982, 31 March 1982: under the appeal of a private company, called
ANTENA 3, the national Government - Ministry of Culture - denies their petition for a
licence for national television broadcasting.
ANTENA 3 stated before the Constitutional Court that two articles of the Spanish
Constitution allowed this petition: Article 20, which recognises the rights freedom of
expression and freedom of information by any means; and Article 33, which recognises
the right to private property, within a liberal economy regime. The exercise of the rights
under Article 20 implicitly means the right to launch a television broadcasting service,
as a way of putting it into the practice.
But the Court denied this petition, despite recognising the importance of these
freedoms:
“Freedom of expression means recognising and guaranteeing a fundamental political
institution, as it is free public opinion (…)”;
However, it also stated that it was not its aim to judge the legal framework of mass
media in Spain; furthermore, it commented that the concession of this licence is not
under its jurisdiction, but it is a legal and political decision, especially in the case of
television where the radio-electric spectrum is clearly limited:
“It is not our duty to judge the legal framework of television in Spain (…). And, although
the legal configuration of television as a public service under State entitlement might not
be necessary, it is a decision of the legislator either to adopt indirect management of this
service or not (…). So-called private television is neither compulsory nor forbidden by
Article 20.”
189
Thus the Court does not challenge the 1980 Act declaring radio and television
broadcasting to be public services under State entitlement, and it does not give any
recommendation to change this legal approach. It thus sends back the petition to the
Government, by its entitlement to approve a new legal framework for the launch of
private national television broadcasters.27
In 1994, the STC 31/1994 of 31 January gave a different Constitutional view before
quite a similar case: two local private companies - TELEDIMO and LADY COCINAS were distributing television by wire in the province of Huesca, despite a specific legal
regulation on this means of broadcasting. The provincial Delegate of the National
Government ordered them to close down, owing to their lack of administrative
concession to manage a television service.
The appeal to the Constitutional Court claimed, with very similar arguments as in the
above case, that the exercise of Article 20 of the Spanish Constitution embraces the
right to create the necessary media; besides, and in this particular case, local wire
television does not interfere with the limitations of the radio-electric spectrum; nor does
it limit the number of other possible wire offers.
The Constitutional Court expressed itself with different points of view from the 1982
judgment: it recognised the right to qualify television broadcasting as a public service
under State entitlement, subject to the granting of certain rights to citizens which must
be provided by the State; furthermore, it supported the indirect management system of
television, considering it adequate to the rights of Article 20. However, it states that the
rule-maker cannot delay its regulatory duties sine die, which would fail to give full legal
value to that Article:
“Qualifying television broadcasting as a public service does not allow any kind of
regulation on it, as there are personal rights in question, such as freedom of information
and freedom of communication of our thoughts (…). In respect of local cable television,
the lack of a legal framework could mean the non-exercise of a fundamental right (…).As
far as this lack persists, the prohibition of this exercise cannot depend on an administrative
concession or authorisation, as this would delete the fundamental right to freedom of
communication and information”.28
27
STC 12/1982, de 31 de marzo (BOE, 21-4-1982).
28
STC 31/1994, de 31 de enero (BOE, 3-2-1994).
In respect of this issue, it should be noted that a new rule introduced in 2006, strictly related to the
provision of radio and television services by wire telecommunications, named as Real Decreto
920/2006, de 28 de julio, por el que se aprueba el Reglamento general de prestación del servicio de
difusión de radio y televisión por cable (Royal Decree 920/2006, 28 July 2006, on the General rules
for the provision of television and radio broadcasting services by wire telecommunications), which
opened this market by distinguishing between general wire services distributors and television and
radio wire services broadcasters. It also stated the need for a simple administrative authorisation for
its provision.
Some case-law examples which can be taken as basic references are: in respect of public regional
broadcasters, STC 146/1993 and STC 147/1993, 29 April; in respect of local television, STC
88/1995, 6 June, STS 2-6-1997, STS 16-6-1997 and STS 14-7-1997; in respect of private television
broadcasters, STC 127/1994, 5 May, STC 74/1982, 7 December, STS 22-9-1997 and STS 17-111997; in respect of telecommunications by wire, STC 12/1995, 16 January, STC 40/1996, 12 March,
190
c)
The Act 17/2006 established a new model of funding: the Government and RTVE sign
a contract valid for three years in which the funding of the State budget and the goals to
be achieved, as well as the consequences in case of breach of the conditions, are
specified. The funding in the case of these three-year-contracts shall ensure a certain
stability in the financing system of the public service broadcasters. Although the Act
17/2006 establishes several obligations towards the RTVE regarding the use of the
funding from the State, it does not explicitly name obligations or limits vis-à-vis the
Government in its funding decisions. In any case, the Act seems to imply that RTVE
has to receive the necessary funds to finance its public service activities on the basis of
the three-year-contract with the Government.
The Act 17/2006 stipulates that the economic performance is subsequently controlled by
the Spanish Court of Auditors and the Inspectors of the Ministry of Economy.
There is only one general law allowing direct interference by the State/Government over
the functioning of mass media: the Ley Orgánica 4/1981, de 1 de Junio, de los Estados
de Alarma, Excepcion y Sitio - (Act 4/1981, 1 June, on the State of Alarm, Exception
and Siege) compels in its Article 2 all public media, and those private media to be
determined by the State/Government, to publish/broadcast the official declaration of any
of these three States. Furthermore, and in the case of the states of exception and siege,
the Government could abate these rights under the authorisation of the Congress
(Article 21).29
Although, the Act 17/2006 seeks to create an independent audiovisual authority with
several supervisory functions which was expected to be created by now, it has not come
into effect so far. Owing to the lack of an audiovisual authority there is also no
regulation or case-law regarding the limits of the body.
Regarding public service media and their remit in new media services, neither the
Constitutional Court nor the Supreme Court presents any related case-law.
However, regarding the legal framework, the Ley 17/2006, de 5 de junio, de la Radio y
la Televisión de Titularidad Estatal (Act 17/2006, 5 June 2006, on radio and television
under State entitlement) only states in its Article 2, par. 2, that the “public service remit
embraces content production, and editing and distribution of generalist and thematic
channels, free-view or encoded, both with national and international scope, as well as
the offer of interactive services linked with the above mentioned”.
STC 47/1996, 25 March; in respect of satellite television, STC 244/1993, 15 July, STC 291/1997, 22
July, and STS 9-2-1999.
29
Ley Orgánica 4/1981, de 1 de Junio, de los Estados de Alarma, Excepción y Sitio (BOE, 5-6-1981).
191
Furthermore, Article 3 states that the public service remit of radio and television also
includes the contribution to the development of the Information Society; RTVE will
employ new technology and means of distribution, and will develop related and
interactive services which can complete their current programming offer.
With this aim, the “Primer Mandato-Marco a la Corporacion RTVE, de 30 de junio de
2006” (1st Legal Framework Commandment to the RTVE Corporation, 30 June 2006),
reminds that any online broadcasting carried on by TVE or RNE shall fulfil the public
service duties stated by the new 2006 Act (Art. 7).
Moreover, Article 29 says that the offer of RNE shall be present in those technological
means arising from the Information Society; and in respect of TVE, Article 30 states the
same obligations, plus: defining an offer for the DTT market; guaranteeing options for a
HD offer, according to European Union Standards; using TV-IP technology; and
producing content for mobility devices, in order to connect with a younger audience. In
respect of on-line services (Art. 31), this “Mandato-Marco” makes compulsory the
creation of a platform, providing interactive services, through the use of IP nets, the
Internet and mobility devices.
After the approval of the 2006 Act, RTVE launched a new web page, with an online
offer of RNE live programming, as well as past TVE broadcasting files.
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Comparative Analysis/Conclusion
I.
Introduction
1.
The (electronic) media market
It may be noted that in all countries which have been included in the study public
service and commercial broadcasters co-exist. Broadcasting still represents one of the
most attractive markets for advertising. In many cases public service and commercial
broadcasters are close competitors, and their respective audience share is at a fairly
comparable level. This is not true, however, in Hungary where the audience share of
public service broadcasters is significantly low. The situation in Spain shows a tendency
of a similar, and not reassuring, nature.
2.
The legal framework for PSM
a)
Human Rights law
The freedom of broadcasting is protected by the constitution in all the countries
analysed. Even if it is not explicitly mentioned in the relevant constitutional law of a
number of countries, the freedom has developed mostly as a corollary of the freedom of
expression.
The freedom of expression is also protected by Article 10 of the European Convention
on Human Rights (ECHR), although it too does not explicitly mention the freedom of
broadcasting. However, it explicitly refers to broadcasting in Article 10 § 1 sentence 3,
which has a limiting character to the freedom of expression, and furthermore obviously
assumes that the freedom of broadcasting is part of the freedom of expression when it
stipulates in Article 10 § 1 sentence 2 that “this right (the freedom of expression) shall
include [...] the right to receive and impart information and ideas [...]”. The European
Court of Human Rights (ECtHR) further recognised the validity of the principles
regarding the freedom of expression - such as the task of the press to impart information
and ideas of public interest and to play a vital role as a “public watchdog”- also in the
area of audiovisual media.
In France, the Constitution mentions freedom of expression and obviously - since the
constitutional freedom is laid down in the Declaration of Human Rights of 26 August
1789 - refers neither to broadcasting nor to other means of communication via the
media. In Hungary, the Constitution explicitly guarantees freedom of information and
freedom of the press in addition to freedom of expression1, but does not refer explicitly
1
Act XX of 1949 on the Constitution of the Republic of Hungary, § 61 (1) reads as follows:
“everyone has the right to freely express his opinion, and furthermore to access and distribute
193
to broadcasting or to other means of electronic mass communication. The Constitutional
Court considers freedom of expression to be the “mother right” for the so-called
“fundamental rights of communication”. The freedom of the press is a separately
defined right which originates from this “mother right”. The Court further clarifies that
the freedom of the press comprises the freedom of all kinds of media.
Although the Constitutions of Poland, Italy and Spain do not explicitly address the
freedom of broadcasting, they indicate its inclusion by using the term “(all) other means
of communication”. The Polish Constitution guarantees the freedom of the press and
other means of social communication,2 as well as the freedom of expression and
information.3 Moreover, the Spanish Constitution guarantees “the right to freely express
and disseminate thoughts, ideas and opinions by word, in writing or by any other means
of communication” and “the right to freely communicate or receive accurate
information by any means of dissemination whatsoever”.4 The Article thereby stipulates
freedom of expression and information and refers to any means of communication and
dissemination. In Italy there is no explicit reference to television or radio in the
constitutional legal texts, so the freedom of broadcasting has also developed as a
corollary of the wider principle of freedom of expression. This is set out in Article 21 of
the Italian Constitution, whose § 1 also refers to “other means of communication” and
reads as follows: “All shall have the right to express their thoughts freely by speech, in
writing, and by all other means of communication”.
It can be noted that only the German Constitution explicitly guarantees the freedom of
broadcasting in the context of freedom of expression in its Article 5 § 1: “Freedom of
the press and freedom of reporting by means of broadcasting and film shall be
guaranteed. [...]”.
b)
Ordinary law
The legislation of all countries concerned concretises, through ordinary laws, the remit
of public service broadcasting. Furthermore, all set out in great detail the structure and
organisation of the broadcasting system and of the public service broadcasters, as well
as their funding and supervision.
In the context of the remit of public service broadcasting, the countries’ ordinary laws
always point out the mission of public service broadcasting to offer diverse, pluralistic
programming and to promote cultural diversity, stressing its importance for a
democratic society.
In respect of supervision, it can be noted that, generally, public service broadcasting
organisations are under the supervision of external authorities which may execute only
limited control over the activities of the public service broadcaster in view of their
information of public interest”. Act XX of 1949 on the Constitution of the Republic of Hungary,
§ 61 (2) reads: “The Republic of Hungary recognises and respects the freedom of the press”.
2
Article 14 of the Polish Constitution.
3
Article 54 and 61 of the Polish Constitution.
4
Article 20 § 1 a) and d) of the Spanish Constitution.
194
economic behaviour and the fulfilment of their public service remit. In Spain there is, to
date, no general supervisory authority, even if its establishment has been foreseen by
law. There are several external bodies which supervise to some extent the activities of
the Spanish public service broadcaster RTVE.
In Poland the regulatory authority is even constitutionally enshrined under Article 213
of the Constitution, which stipulates that the National Broadcasting Council “shall
safeguard the freedom of speech, the right to information as well as safeguard the public
interest regarding radio broadcasting and television. It shall issue regulations and, in
individual cases, adopt resolutions.” Although the Hungarian Constitution does not
directly require the establishment of a supervisory authority it does refer to such a body
when stating that a majority of two-thirds of the votes of the Members of Parliament
present is required to pass a law on the supervision of public radio, television and the
public news agency, as well as the appointment of the directors thereof.
II.
Jurisprudence of the European and National Courts on the Role,
Remit and Independence of PSM
1.
Remit
The German, Hungarian, Polish and Italian courts address in detail the remit of public
service broadcasting, and they have elaborated on it in various judgments. The Spanish
Constitutional (and the Supreme) Court recognises the role of public service
broadcasting in guaranteeing free formation of public opinion through the provision of
free and pluralist information to the public. The French Conseil constitutionnel points
out the importance of the press and of the audiovisual media for pluralism and
democracy in general, without referring explicitly to public service media.
a)
Pluralism and democracy
The ECtHR recognises the importance of the audiovisual media for pluralism and
diversity of opinion when it gives the State the role as a guarantor of pluralism and
thereby especially refers to the audiovisual media. By confirming the possibility for the
legislator to restrict the freedom of broadcasting as far as the restriction can be justified
by a legitimate aim - such as serving the public interest and securing and improving the
output quality and balance of information provided; or the aim of preventing a
competitive advantage in politics and the commercial exertion of influence on the
process of formation of opinion by financially strong groups; or the aim of providing
accurate and reliable information in accordance with the ethics of journalism - the
ECtHR appears to address clearly the remit of broadcasting.
The Prague Resolution No. 1 on the future of public service broadcasting of the
Ministers of the States participating in the 4th European Ministerial Conference on
Mass Media Policy (Prague, 7-8 December 1994) confirms that the public service
broadcasting missions shall include the provision of a pluralistic, innovative and varied
195
programming based on high ethical and quality standards. The Committee of Ministers
in Recommendation No. R (99) 1 on measures to promote media pluralism reemphasises the commitment of public service media and the media in general to
enabling different groups and interests in society to express themselves and thereby to
contribute to the diversity of opinion and democracy. In Recommendation (2003) 9 on
measures to promote democratic and social contribution of digital broadcasting the
Committee of Ministers stresses:
“the specific role of the broadcasting media, and in particular of public service
broadcasting, in modern democratic societies, which is to support the values underlying the
political, legal and social structures of democratic societies, and in particular respect for
human rights, culture and political pluralism.”
The Committee of Ministers further points out the remit of public service broadcasters
to promote a culture of tolerance and understanding while paying particular attention to
the needs of minority groups in its Recommendation No. R (97) 21 on the media and the
promotion of a culture of tolerance.
The Parliamentary Assembly, too, recognises the role of broadcasting for political and
cultural pluralism in Recommendation 1407 (1999) on media and democratic culture
and in Recommendation 1878 (2009) on the funding of public service broadcasting.5
The Courts of the European Communities also stress the important role of public service
broadcasting for pluralism and democracy, as well as for culture, when referring to the
Protocol on the system of public service broadcasting6, introduced by the Treaty of
Amsterdam and annexed to the EC Treaty, which confirms that
“the system of public broadcasting in the Member States is directly related to the
pluralism”.
In the TV2 Danmark case7 the Court of First Instance refers also to the Council’s and
the Member States’ Resolution of 25 January 1999 concerning public service
broadcasting, which reaffirms the importance of broadcasting SGEIs and states
“that public service broadcasting in view of its cultural, social and democratic functions
which it discharges for the common good, has a vital significance for ensuring democracy,
pluralism, social cohesion, cultural and linguistic diversity”.8
5
The contribution of public service broadcasters to media pluralism is also recognised by the recently
published Provisional Agreement on the Draft Amendments to the European Convention on
Transfrontier Television (ECTT), which foresees replacing the current Article 10a ECTT by a new
Article 12. § 3 stipulates that “the present Parties shall encourage broadcasters with a public service
mission to play an active role in promoting social cohesion and integrating all communities, social
groups and generations [...].”.
6
“the Amsterdam Protocol”), introduced by the Treaty of Amsterdam and annexed to the EC Treaty.
7
8
Resolution of the Council and of the Member States of 25 January 1999 concerning broadcasting
(OJ 1999 C 30), recital B.
196
The German Constitutional Court puts strong emphasis on the importance of public
service broadcasting for pluralism and democracy when it explicitly entrusts the public
service broadcasting - under the current legislator’s choice of a dual broadcasting
system - with the “functional mandate”, which must, by providing an offer of balanced
diversity and by representing the current opinions in society to the greatest possible
extent, serve the formation of opinion and political will; pluralism thereby has to be
realised, the very basis of a democratic society. The Hungarian Constitutional Court
explicitly addresses the public service broadcasters’ remit when pointing out their
principal ability to represent comprehensively and in a balanced manner the opinions
present in the society. The Italian Constitutional Court assigns the public service
broadcasters the task of providing pluralist information and clarifies that internal
pluralism is a duty mainly for the public service broadcaster. In France, the Conseil
constitutionnel recognises the role of the press and of audiovisual communication for a
pluralistic society and democracy, but it has not rendered any decisions in great detail
on the remit and role of PSM. The same is true in Spain, where the Supreme and the
Constitutional Court do not address the issue specifically, but acknowledge, in the
context of judgments regarding strikes by the public service broadcaster, the extensive
effect which broadcasting, and especially the programmes qualified as “essential
services”, has on the fundamental rights and public interests and, thereby, on the
democratic and information society. The Polish Constitutional Tribunal recognises the
important role of media and of media pluralism for a properly functioning democracy
and lays down the public service broadcasters’ obligation to provide reliable
information about the vast diversity of events and processes and to encourage the
unconstrained development of citizens’ views and the formation of public opinion.
b)
Information
The German Constitutional Court points out that the public service broadcasters’
“functional mandate” also includes the function of providing information which exceeds
continuous reporting. So does the Hungarian Constitutional Court when it stresses the
public service broadcasters’ key ability to ensure unbiased reporting on facts and news
and their obligation to provide a balanced presentation of news. The Italian
Constitutional Court assigns to the public service broadcaster the specific task of
ensuring, to a greater degree than the commercial broadcasters, the right to information.
The Polish Constitutional Tribunal recalls that one of the tasks of public service media
is to provide independent information and also notes the direct link between public
service broadcasting and the goal of safeguarding freedom of speech and the right to
information. The French Constitutional Court recognises the importance of broadcasting
in an information society when it states that the public has to have access to
programmes which guarantee the expression of different currents of thought and honest
information - even without explicitly assigning to public service broadcasting the task
of providing honest information to the public. The Spanish Supreme and Constitutional
Court recognise the importance of the provision of information by public service
broadcasters when stating that - owing to their function of guaranteeing the free
formation of public opinion through the provision of free and pluralist information - in
the particular case of a strike by the public service broadcaster the provision of
“essential” services still has to be guaranteed.
197
c)
Basic/essential services
While the French Conseil constitutionnel assigns to the legislator the obligation to take
the necessary precautions in order to guarantee the freedom of the audiovisual
communication, the Court further assumes that the provision of “basic services” has to
be guaranteed. As already mentioned, the Spanish Constitutional Court refers to the
provision of “essential services” which must be guaranteed also during strikes within
the public service broadcaster. The German Constitutional Court too, in its earlier caselaw, referred constantly to the provision of “basic services”, the provision of which the
public service broadcasters are obliged to deliver; recently, it replaced the term by the
notion “functional mandate”.
d)
Culture
The contribution of public service media to cultural pluralism is underscored by the
Council of Europe in recommendations by the Committee of Ministers as well as by the
Parliamentary Assembly (see also above in II. 1. a)) and consistently confirmed by the
jurisprudence of the ECtHR. The Courts of the European Communities too stress the
important role of public service broadcasting for culture and refer, inter alia, to the
statements of the European Community in the Amsterdam Protocol9 and the Council’s
and Member States’ Resolution of 25 January 1999 which highlight the important role
of public service broadcasting for the democratic, social and cultural needs of each
society and for media pluralism (see also above in II. 1. a)).
The German Constitutional Court clarifies that the “functional mandate” also includes
cultural responsibility of public service broadcasting. In Italy, the Constitutional Court
assigns to the public service broadcaster the specific task of ensuring, to a greater
degree than the commercial broadcasters, the dissemination of culture, so as to promote
citizens’ participation and to contribute to the social and cultural development of the
country. The French Conseil constitutionnel recognises the pluralist character of the
currents of socio-cultural expression as an objective of constitutional value to which
audiovisual media, by dint of their considerable influence, are likely to affect. It further
confirmed the constitutionality of the legal obligation for broadcasters to use the French
language in all programmes and advertisements of radio or television broadcasters,
subject to the exceptions which they admit. The Polish Constitutional Tribunal
acknowledges the cultural role of public service broadcasting, which should provide
drama and cultural programmes, as well as educational content.
2.
Scope of protection
The jurisprudence regarding the scope of protection for freedom of broadcasting,
namely independence, the freedom of programming and the guarantee of funding, is of
varying detail.
9
“the Amsterdam Protocol”), introduced by the Treaty of Amsterdam and annexed to the EC Treaty.
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The ECtHR defines the scope of protection of Article 10 ECtHR when stating that although the mass media must not overstep the bounds imposed in the interests of the
proper administration of justice - it is incumbent on them to impart information and
ideas concerning matters of public interest and that they not only have the task of
imparting such information and ideas but the public also has a right to receive them. To
enable the press and audiovisual media to play their vital role as a public watchdog,
restrictions on their right and task to impart information as well as the right of the public
to receive them have to be justified by necessity in a democratic society. The Court
further confirms that restrictions which refer to the character and the objectives of a
programme are possible, but they would also have to be justified by necessity in a
democratic society.10
The ECtHR thereby clarified that the freedom of programming is protected by freedom
of expression and that restrictions on the programme interfere with this freedom and
need to be justified by a pressing social need. The same is true for restrictions which
result in interfering with the media’s role as a “public watchdog”. The Court further
recognises the principle of independence when stating that the prevention of political
influence and greater opportunities for financially powerful groups to market their
opinions is a legitimate aim for a prohibition of political advertising. In the Faccio case
the Court further clarifies that the funding of public service broadcasting is also a
legitimate aim which can justify interference with subjective rights (in the particular
case, such as the right to receive information).
The Parliamentary Assembly of the Council of Europe stresses out the importance of
the public service broadcasters’ independence in its Recommendation 1407 (1999) on
media and democratic culture when considering public service broadcasting as a
guarantee that the public is provided with programmes that are impartial and varied, and
free of government or partisan interference. The Assembly re-emphasises in
Recommendation 1641 (2004) on public service broadcasting the specific remit of
public service broadcasting, which is essentially to operate independently of those
holding economic and political power. Furthermore, it emphasised the importance of an
appropriate institutional and financial framework especially against the backdrop of new
media services in which public service broadcasters should have both the possibility and
financial resources to participate, which is explicitly confirmed by Recommendation
1878 (2009) on the funding of public service broadcasting.
The European Court of Justice guarantees protection of the freedom of expression
within the fundamental freedoms of the EC Treaty, i.e. the free movement of goods and
the free provision of services. Although in its judgments regarding a violation of the EC
Treaty rules the ECJ does not go into details regarding the scope of protection in respect
of the public service broadcasters’ independence, i.e. the freedom of programming, it
appreciates the principles connected to the freedom of expression laid down in Article
10 ECHR as interpreted by the ECtHR when it confirms the possibility of justifying
restrictions on the free provision of services with legitimate aims resulting from the
10
The Court confirmed the admissibility of national regulation which requires for the granting of a
licence that the television programmes of the applying broadcaster must to a certain extent also
serve the public interest and thereby help to improve output quality and balance to obtain a licence.
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freedom of expression such as the maintenance of pluralism. It further confirms the
possibility of justifying the funding of public service broadcasting - e.g. via licence fees
- with the need to enable public service broadcasters to realise their service of general
economic interest and to fulfil their remit. Considering the reference, made by the CFI,
to the Protocol on the system of public broadcasting according to which the
“provisions of the Treaty (...) shall be without prejudice to the competence of Member
States to provide for the funding of public service broadcasting insofar as such funding is
granted to broadcasting organisations for the fulfilment of the public service remit”,
it can be concluded that the Courts recognise that Member States will provide for
adequate funding, i.e. funding which is compatible with the remit as defined.
In Germany, the Bundesverfassungsgericht explicitly addresses and defines the scope of
protection of the freedom of broadcasting and thereby sets the principles of
independence, the freedom of programming and the guarantee of existence and
development (correlating to a right of functionally-adequate funding). In Hungary and
Poland, the constitutional courts stress the principle of independence and require
regulation which prevents governmental or one-sided private influence on the content of
the programme provided by public service broadcasting. The case-law in Spain does not
address directly the necessity of special protection of the independence of public service
broadcasters regarding the programming and their funding. Nevertheless, the Court has
recognised the right of the citizens to communicate and receive truthful information by
any mass media, including public service media.
The case-law of the Conseil constitutionnel in France does not address in the same
explicit manner the guarantee of independence of the public service broadcasters, but it
acknowledges the principle as one of the corollaries of the freedom of broadcasting.
Regarding Italy it can be noted that the Constitutional Court has also recognised the
principle of independence and confirmed the necessity of absence of both governmental
and one-sided private influence.
3.
Requirements made for, and limits set on, the implementing legislation
While determining the scope of protection afforded to public service media shows a
clear relationship with the remit as defined by the ECtHR and the national constitutional
courts, the perspective taken at this point is slightly different. A matter of particular
interest is the way in which, on the one hand, the courts define positive obligations on
the legislator and, on the other, where the boundaries of the margin of discretion lie
when it comes to such rule-making.
a)
Positive obligation to implement the legal framework
The ECtHR recognises the possibility for the legislator takes implementation measures
which restrict the freedom of broadcasting as far as they can be justified by a legitimate
aim. By defining and concretising legitimate aims to restrict the freedom of
broadcasting the Court implies a remit of broadcasting which may also result in an
objective guarantee obliging the national legislators to develop their national media
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regimes according to these requirements and to protect the whole communication
process (not only in terms of the individual exercise of the freedom but also in terms of
a guarantee of the pluralism of opinions). The ECtHR in the Informationsverein Lentia
and others case explicitly assigned the State the function of a supreme guarantor to
secure pluralism in particular in the area of audiovisual media. In the Kaleta case the
ECtHR explicitly states that the domestic law and practice must guarantee that the
chosen public service broadcasting system provides for a pluralistic audiovisual service.
In conformity with this, in all the countries analysed the constitutional courts entrust the
legislator with implementing the freedom of broadcasting by a positive order which
may be understood as an obligation.
The countries’ constitutional courts generally recognise that the positive order which
implements the freedom of broadcasting has to meet certain requirements, such as
ensuring media pluralism (see chapter II. 3. b) below). With the implementation of the
freedom of broadcasting, various constitutional rights, objectives and principles are
concerned, which makes it necessary for the legislator to reconcile them. In this respect,
the courts furthermore set limits for the legislator on, for example, the principle of
independence - i.e. the essential element of adequate funding or the freedom of
programming; the Spanish Constitutional Court, however, is quite reserved in terms of
imposing limits on the legislator (see chapter II. 3 c)).
It can be noted too that the Polish Constitutional Court is the only one - among the
countries analysed - which suggests that the legislator should enshrine the co-existence
of public and private media. The German, Spanish, Italian, Hungarian and French courts
assign the competence to choose the appropriate broadcasting system to the legislator;
nevertheless, the chosen system and the regulation adopted in this field have to be seen
in the constitutional context. The legislator, while implementing the freedom of
broadcasting, has to observe certain requirements as described below.
b)
Requirements for the legislator
The constitutional courts of most of the countries under analysis stipulated obligations
vis-à-vis the legislator which mainly have the objective of enabling the public service
broadcasters to fulfil their remit. The German and Polish Constitutional Courts
acknowledged that the legislator is generally obliged to set a legal framework which
guarantees the possibility for public service broadcasters to fulfil their mission; this is
further concretised with respect to the obligations stemming from ensuring media
pluralism and securing the funding of public service broadcasting. The other countries’
constitutional courts also stipulate obligations to the legislator, which are ultimately
aimed at enabling the public service broadcasters to fulfil their remit.
aa)
Media pluralism
In Germany, the Constitutional Court confirmed that Article 5 of the Constitution
requires the establishment of a positive order by the legislator, which ensures that
diversity of themes and opinions is represented. The Court states that it is the
legislator’s competence to decide on whether to establish a dual broadcasting system,
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which is not compulsory. It also complies with the constitution to set lower
requirements for commercial broadcasters than for the public service broadcasters to the
extent that the latter are entrusted with the fulfilment of the “functional mandate” which
should guarantee a certain offer of quality programmes. According to the case-law of
the Hungarian Constitutional Court, it falls within the competence of the legislator to
develop legal solutions granting the proper presentation of the views existing in society,
in accordance with democratic standards. According to the court, regulation has to
exclude the possibility of influence over the content of the programme by any organ of
the State or by any social group. The jurisprudence of the Conseil constitutionnel
implies an obligation to ensure pluralism, derived from freedom of communication, but
does not explicitly set an obligation to operate public service broadcasting; nevertheless
public service broadcasting can be based on the obligation to ensure pluralism.
According to the Court it is for the legislator to reconcile the exercise of the freedom of
communication with, on the one hand, the technical constraints of the audiovisual media
(notably the scarcity of resources) and, on the other hand, other objectives based on
constitutional values such as the safeguard of law and public order, the respect of
freedom of others and the safeguarding of the pluralist character of currents of sociocultural expression. The Italian Constitutional Court has emphatically reaffirmed in its
judgments that “radio and television broadcasting at the national level is an essential
public service of paramount general interest”, which may be understood as an obligation
to ensure pluralism through the establishment of public service broadcasting. In Spain,
the Constitutional Court states that it is not its duty to judge the legal framework of
television in Spain, and gives the legislator a wide margin of appreciation in
implementing the freedom of broadcasting. Nevertheless, it also recognises the remit of,
especially, public service broadcasting to guarantee the free formation of public opinion
when the provision of free and pluralist information to the public is involved, and states
in various decisions regarding strikes at the public service broadcaster that there is a
necessity to establish rules which reconcile the right to strike with the right to
communicate and to receive information.
bb)
Independence and Funding
The Italian Court states that the structure of the State broadcaster must be designed in
such a way as to ensure the objectivity of the governing bodies, and points out that the
legislator has to guarantee that those requirements are met. The German Constitutional
Court states that the legislator’s obligation to enable the public service broadcasters to
fulfil their “functional mandate” also includes taking the necessary precautions
regarding technical, organisational, personal and financial conditions. The Polish
Constitutional Tribunal has noted in its jurisprudence the requirement for a system
which provides public funding for the performance of the public mission, and has stated
that setting the level of the licence fee should be done by statute. According to the
Hungarian Court the legislator has to safeguard the independence of the public service
institutions with regard to the funding system. The French Constitutional Court, too,
confirms that adequate funding of PSM is an element of their independence. Regarding
a law which provided for the abolition of advertising on France Télévisions it stated that
the legislator must also provide for adequate financial compensation by the State
regarding the loss of advertising revenue so that the public service broadcaster is able to
perform the public service missions which are entrusted to it.
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c)
Limits for the legislator
The constitutional courts primarily set limits for the legislator regarding the
independence of the public service broadcasters, i.e. the central element of freedom of
programming and of funding.
aa)
The German Bundesverfassungsgericht clarifies that the obligation on the legislator to
establish a positive order which enables the public service broadcasters to fulfil their
“functional mandate” also limits - owing to the constitutional guarantee of the freedom
of programming - positive measures by the legislator. The legislator is not allowed to
stipulate any further requirements regarding the programme offers in respect of their
content or form. The Polish Constitutional Tribunal recognised that the legislator not
only has an obligation to set a legal framework which enables the public service
broadcasting to fulfil its remit but is also limited as far the freedom of programming is
concerned. Nevertheless, the Tribunal in most of the cases upheld the constitutionality
of the provisions referred to it and relating directly to PSM. The Tribunal judged on
provisions regarding programming content which obliged public service broadcasting to
respect the Christian system of values, being guided by the universal principles of
ethics. It held that the regulation did not impose an obligation to submit programming to
ex ante evaluation. The French Conseil constitutionnel found that the legislator may
impose restrictions on the freedom of programming - in the cases at hand through
legislation on reporting and other programme items during election campaigns - but is
under an obligation to reconcile the relevant public policy concerns (safeguarding fair
elections through measures aimed at securing non-interference by the media) with the
freedoms advocating in favour of the media, i.e. independence, pluralist information,
freedom of expression and opinion. The Hungarian Constitutional Court, by pointing
out the importance of the public service broadcaster’s independence, states that neither
the Parliament - which means the legislator - nor the Government should obtain
definitive influence concerning the content of the programmes.11 The Italian
Constitutional Court struck down legislation - concerning the authorisation of one single
individual to hold simultaneously three television networks - which was not adequately
tailored to protect media pluralism. It thereby acknowledged limits for the legislator’s
implementation measures in order to guarantee media pluralism which requires the
freedom of programming and the principle of independence of the public service
broadcasters.
11
It is notable that owing to the requirement of a qualified majority (two-thirds) for legislation related
to the structure and governance of public service broadcasters and the high political sensitivity of the
matter, there has not been any major modification of the legislation related to structure and services
of public service broadcasters in Hungary since 1996; the regulatory framework governing the
operation of public service broadcasting has remained unchanged for 13 years.
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bb)
Funding
The obligation on the legislator to provide for an adequate funding system obviously
restricts the legislation in the sense that it is not allowed to pass legislation which would
not respect this requirement.
The German Constitutional Court explicitly set further limits on the legislator regarding
funding decisions: as these can have a major impact on programming, the legislator’s
decision on the financing of public service broadcasting has to remain strictly bound to
its purpose. To minimise the risk of indirect influence being exerted on programming
via funding decisions, such decisions may only follow the purpose guaranteeing the
(financial) possibility of the public service broadcasters to fulfil their “functional
mandate,” i.e. to fulfil the remit of public service media. The determination of the
broadcasting fees must not be used for purposes of media policy or programming
control. The Polish Constitutional Tribunal declared as unconstitutional provisions in
the Broadcasting Act empowering the supervisory authority - the National Broadcasting
Council - to determine the exact level and some other key elements of the licence fee,
though the decision was not based on media law or a constitutionally founded demand
for adequate funding but on a constitutional formal requirement according to which all
taxes and other “public burdens” must be determined by statutory acts.
4.
Supervision (limits)
It may be noted that the countries’ constitutional courts generally render in greater
number (and detail) judgments regarding limits to the legislators’ implementation
measures than regarding the limits to supervision. Even so, the same principles are
relevant in the area of supervisory activities as for legislative measures, i.e. the principle
of independence and the freedom of programming.
The courts judged on some specific and quite wide-ranging situations which ultimately
all concerned the afore-mentioned principles in one way or another, except for Spain
where there is no regulation or case-law regarding the limits of such bodies.
It can be noted too that the relevant proceedings all led to judgments in favour of the
public service broadcasters’ independence, except for one judgment by the Italian
Constitutional Court which, nevertheless, affirmed the need for parliamentary approval.
a)
Structure/organisation of the public service broadcaster
In respective cases, the courts had to consider the competence of supervisory authorities
regarding the organisation or structure of the public service broadcaster in the light of
the principle of independence.
A proceeding before the Italian Constitutional Court concerned the competence and the
admissibility of a parliamentary approval requirement to remove public service
broadcasters’ board members. The court recognised the principle of independence and
confirmed the necessity of absence of both governmental and one-sided private
influence when it affirmed, in its judgment, the need for parliamentary oversight of the
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removal of RAI's board members even against a literal interpretation of the
Broadcasting Code. The situation of governmental influence on the public service
broadcaster RAI was also the subject of concern expressed by the Parliamentary
Assembly of the Council of Europe in its Resolution 1387 (2004).
As with the Italian judgment, the Hungarian Constitutional Court dealt with the
composition of the presidency of the external authority’s respective Board of Trustees.
The latter is elected by the Parliament and supervised by a controlling body of the
Board of Trustees which is also elected by the Parliament. Regarding the composition
of the presidencies of the respective Board of Trustees the Court stated that members
nominated by parliamentary fractions which later ceased to exist cannot be regarded as
being linked to the governing parties or to the parties in opposition. This decision was
related to the rules of the Broadcasting Act requiring a constant balance within the
presidencies between the representation of the governing parties and the parties in
opposition.
The French Conseil constitutionnel declared the provision of the Law on the New
Public Service of Television, which transferred the capacity of nomination of the
presidents of the national programme corporations from the CSA to the President of the
Republic, to be compatible with the Constitution only because of the safeguards
foreseen by law, such as the “avis conforme” of the CSA, so that the nominations
cannot be decided without the agreement of this independent administrative authority.
b)
Programming
The Polish Constitutional Tribunal held that programming councils are not construed as
governing bodies of the companies in which they operate. Their role is advisory and
their resolutions are not legally binding. The Boards of Management are fully in control
of programming and finances. Supervisory councils have no power to direct them, but
only to suspend or dismiss their members.
In Hungary, there is no jurisprudence of the Constitutional Court which explicitly sets
limits on the supervisory bodies regarding programming. However, by stating that the
freedom from the State requires that neither the Parliament nor the Government obtain
definitive influence over the content of the programmes, the Court recognises that the
principles of independence and freedom of programming are also of great relevance in
the area of supervisory activities.
In Germany too the Constitutional Court confines itself to setting the general principles
of independence and freedom of programming and, although it concretises the resulting
obligations and limits for the legislator, it has not concretised them further with respect
to supervision. A judgment of an administrative court addresses the issue when deciding
on the prohibition to launch a new satellite channel to a public service broadcaster and
by stating: only the facts of the matter, which underlie concrete rules which in turn
contain determinable legal duties, can be the subject of supervisory action. As the
legislator - in the area of programme-related legislation - is, owing to the
constitutionally-founded programming autonomy of the public service broadcasters,
restricted to the setting of abstract rules, the possibilities for supervision in this area are
very limited. The Court of First Instance recognised the freedom of programming in its
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judgment TV2 Danmark of 22 October 200812 when it confirmed that the freedom of
expression guaranteed by Article 11 of the Charter of Fundamental Rights of the
European Union and Article 10 ECHR also protects the public service broadcaster’s
editorial independence from public authority in the choice of its actual programmes.13
c)
Switch-off of analogue broadcasting services
In France, the Conseil d’Etat judged on a specific issue in the context of supervision: it
denied the external media authority - the CSA - the competence to allow and organise
the switch-off of analogue broadcasting services and assigned this competence
exclusively to the legislator.
d)
Need for a legal basis
The Polish Constitutional Tribunal confirmed that the authorities may not take any
decisions or formal action vis-à-vis the public service media without a clear legal basis
and authorisation - and this is limited to clearly-defined circumstances. In Germany, an
administrative court concretised the requirements for a legal basis on which any
supervisory action must be based, in the judgment mentioned above.
5.
Summary
It can be noted that in all the countries analysed the Constitutional Courts recognised
the media in general as an important instrument in the process of formation of opinion
and in view of the need to ensure pluralism. Pluralism, in turn, is, according to the
jurisprudence of the courts, an essential basis for a democratic society. This reflects the
jurisprudence of the ECtHR, which consistently stresses that freedom of expression
constitutes one of the essential foundations of a democratic society, one of the basic
conditions for its progress and for the development of every individual, and also on the
jurisprudence of the Courts of the European Communities which, too, confirm freedom
of expression as one of the fundamental principles of a democratic society and
recognise the important role of public service broadcasting in view of its cultural, social
and democratic functions and its vital significance for ensuring democracy, pluralism,
social cohesion, and cultural and linguistic diversity. The Recommendations,
Resolutions and Declarations of the Committee of Ministers and the Parliamentary
Assembly of the Council of Europe, as well as primary and secondary law of the
European Community, underline the importance of public service broadcasting for
democracy, pluralism and cultural diversity.
By corresponding to the standards, rules and jurisprudence of the institutions of the
Council of Europe and the European Communities, in all the countries analysed the
importance of the media in general for ensuring pluralism and the freedom of
expression as well as for democracy is recognised, whereas the density of national case12
13
CFI, Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04, TV 2 Danmark A/S and Others v
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law on the remit of, especially, public service broadcasting, on the scope of protection,
on the obligations and limits for the legislator in the implementation of the freedom of
broadcasting and on the limits for the supervision varies from country to country.
In Germany there exists a considerable, very specific and comprehensive body of
jurisprudence on the remit not only of media or broadcasting in general but also
specifically as regards public service broadcasting. The Hungarian, Polish, Italian and
Spanish courts specifically address the remit of public service broadcasting. In France it
seems more difficult to identify concrete statements of the courts on the remit of public
service media. Nevertheless, the Conseil constitutionnel dealt with the issue and
expressed the necessity of “basic” services, meaning the offer of programmes which
represent different currents of thoughts and provide honest information.
Moreover, the principle of independence of public service broadcasting is recognised by
all of the countries’ constitutional courts. This reflects the jurisprudence of the ECtHR
and the Recommendations, Resolutions and Declarations of the Committee of Ministers
and the Parliamentary Assembly of the Council of Europe, which explicitly note the
importance of the public service broadcasters’ independence, i.e. editorial and financial
independence, resulting in the freedom of programming and a guarantee of adequate
funding. Although the ECJ does not address these principles in great detail, it recognises
the freedom of expression stipulated in Article 10 ECHR and the resulting principles as
confirmed by the ECtHR, the Committee of Ministers and the Parliamentary Assembly
of the Council of Europe when it judges restrictions to the free movement of services or
with regard to the financing of public service broadcasting and its compatibility with
competition rules (State aid).
The implementation of freedom of expression and freedom of broadcasting falls according to all countries’ constitutional courts - within the competence of the legislator
who is also obliged to observe certain requirements which mainly have the objective of
ensuring media pluralism and enabling the public service broadcasters to fulfil their
remit. At the same time most of the courts set limits on the legislator regarding
implementation measures which may interfere with the principle of independence,
meaning an infringement upon the freedom of programming or a conflict with the
guarantee of adequate funding. Furthermore, the supervision has to observe limits which
also result from the aforementioned principles.
The development of new technologies which provide new forms and ways of
distribution as well as new formats of content require an answer regarding the extent to
which the remit of public service media also requires them to be active in the constantly
changing and expanding field of new media services. The available jurisprudence
strongly argues for public service broadcasters also have to be active in the field of new
media services. The latest judgment of the German Constitutional Court regarding the
funding of public service broadcasters confirms that the “functional mandate” of the
public service broadcasters has to be interpreted in a dynamic manner, and that activities
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in new formats and distributed over new delivery platforms are covered by the
guarantee of development and thereby belong to the remit of public service
broadcasting. Even so, the majority of the courts have not yet dealt with the issue.
The necessity for public service organisations to use diverse platforms and to offer
various services to fulfil the public service remit is strongly recognised by the Council
of Europe in the Committee of Minister’s Recommendation Rec (2007) 3 on the remit of
public service media in the information society and the Parliamentary Assembly’s
Recommendation 1641 (2004) on broadcasting. The Parliamentary Assembly reemphasizes this statement in Recommendation 1855 (2009) on the regulation of audiovisual media services when it requests preservation of the principle of public service
broadcasting in the changing media environment and a further extension to audiovisual
media services as a whole. In the same manner, the legal acts of the European
Community such as the Amsterdam Protocol, the Resolution of the Council of 25
January 1999, the Audiovisual Media Services Directive or the Revised Broadcasting
Communication explicitly demand participation by public service broadcasting in new
media services.
The States’ legislation is increasingly in keeping with these requirements stemming
from both the European developments as well as national jurisprudence; not least in
view of closed or ongoing European Commission investigations in State aid procedures,
in the countries analysed, but also in a number of other Member States, the statutory
formulation of the public service media mission in respect to the new media is a process
of concretion and adaptation.
IV. Conclusion
It follows on from the foregoing comparative analysis that there is a direct chain of
arguments, provided for in the case-law of the ECtHR and the national constitutional
courts, which links the protection of public service media as well as their remit to the
specific role, which they are entrusted with, to ensuring and preserving pluralism and
diversity of opinion/cultural expression. The fulfilment of their mission is essential for
attaining these objectives, the latter lying at the heart of the freedom of broadcasting
which in its turn is a fundamental factor in freedom of expression; this fundamental
right is the constituting element of democracy. To enable public service broadcasters to
fulfil their mission, Member States have to guarantee adequate funding for public
service broadcasting which - according to the ECtHR in the Faccio case - represents a
legitimate aim that can justify interference with subjective rights protected by the
ECHR. The ECtHR in the Kaleta case further obliges the Member States to guarantee
that the chosen public service broadcasting system provides for a pluralistic audiovisual
service. The need for public service media, owing to their importance for a democratic
and pluralistic society, is deeply-rooted in Europe; in most countries public service
broadcasting has a privileged status. The present analysis of national and European
jurisprudence also demonstrates that the privileged status coincides with a remit of
public service broadcasting which it has to fulfil. Even though the specific obligation
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resulting from the remit of public service broadcasting may vary slightly from country
to country - not least because of the respective individual political and cultural
backgrounds - there is a great common understanding of the national courts - and of the
legislators - on the core values in the concepts of public service media: they all
recognise the high impact of public service media for a pluralistic and democratic
society and the importance of public service media’s independence. It can further be
observed, that the national jurisprudence as well as legislation reflects jurisprudence and
legislation at the European level, which on the one hand sets the basic principles and
framework and, on the other, gives the national States scope to organise their national
media landscape and to implement freedom of expression, and specifically the freedom
of broadcasting, according to their national characteristics. Jurisprudence and legislation
at the European level, in turn, are also affected by the national jurisprudence and
legislation, which is taken into consideration through the discussion of facts and
concepts in proceedings before the European Courts and through discussions at the
political level. The Audiovisual Media Services Directive and the Revised Broadcasting
Communication reflect the reciprocal connection between the national and European
concepts. Ultimately, though, national legislation has to respect the requirements
resulting from the law (jurisprudence and legislation) at the European level, which
means, in particular, respect for the requirements set out by the ECtHR regarding
Article 10 ECHR.
Based on the common conviction that public service media are essential for a pluralistic
and democratic society, i.e. they have a vital significance for ensuring democracy,
pluralism, social cohesion, cultural and linguistic diversity, it is indispensable to
conclude that the principles relating to the concept of public service broadcasting are
not limited to traditional broadcasting but also apply to new ways of distribution and
new formats. Especially the Recommendations, Resolutions and Declarations of the
Council of Europe’s institutions as well as the legal acts of the European Community
demonstrate the constant demand for a public service broadcasting activity in new
media services in order to maintain pluralism and to satisfy the needs of an informed,
pluralistic, democratic society.
The principle of independence is recognised by the national courts, on the one hand, as
the main reason for the public service media being granted a specific mission and, on
the other, as the basic condition which enables public service media to fulfil their remit.
The Courts, and especially Recommendations, Resolutions and Declarations of the
Council of Europe, underscore the principle of public service broadcasters’
independence. They explicitly refer to editorial independence and institutional
autonomy as the basic condition for the fulfilment of the public service remit. The
importance of editorial independence and institutional autonomy is again recognised in
the jurisprudence of the national courts when they deduce from the freedom of
broadcasting the public service broadcaster’s freedom of programming, which
according to most of the courts also results in the requirement of an adequate funding
system.
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It can be concluded that the following are the main results of the study:
•
The national constitutional courts, as well as the jurisprudence and legal acts of the
Council of Europe and the European Community, recognise the importance of
public service media for pluralism and diversity of opinion and - as pluralism, in
turn, is regarded by the jurisprudence of the courts as an essential basis for a
democratic society - for democracy.
•
The national constitutional courts and especially the legal acts of the Council of
Europe explicitly recognise the principle of independence of public service
broadcasting.
•
The principle of independence primarily consists of editorial independence and
institutional autonomy, which requires freedom of programming.
•
The guarantees that public service media can invoke and, correspondingly, the
requirements that legislators must respect, also entail the right to adequate funding,
by virtue of which public service media must be enabled to fulfil their remit.
•
The Recommendations, Resolutions and Declarations of the Council of Europe
(Committee of Ministers and the Parliamentary Assembly) and the legal acts of the
European Community explicitly require the participation of public service
broadcasting in new media services. National jurisprudence also strongly indicates
that public service broadcasters have to be active in new media services.
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Authors
Arena, Amedeo (LLM, Ph.D)
Amedeo Arena completed his LLB magna cum laude at the University of Naples “Suor
Orsola Benincasa” and obtained his Laurea in Giurisprudenza with honours at the
University of Rome “Tor Vergata”. He holds an LLM in European Law from King's
College London and a Ph.D in International Law from the University of Naples
“Federico II”. Dr Arena is the author of several publications on Italian and international
legal periodicals, as well as of the first Italian collection of the WTO legal texts. His
current research interests focus on harmonisation within the EC internal market, with
particular emphasis on audiovisual media services. He teaches on the “European
Institutions” course at LUISS University (Rome) and on the Broadcasting Law course
held by Professor R. Mastroianni at the University of Naples “Suor Orsola Benincasa”.
Jakubowicz, Karol (Dr)
Karol Jakubowicz (Poland) is Chairman, Intergovernmental Council, Information for
All Programme (UNESCO). He was Director, Strategy and Analysis Department, the
National Broadcasting Council of Poland, the broadcasting regulatory authority (20042006). He has worked as a journalist and executive in the Polish press, radio and
television for many years. He has been Vice-President, Television, Polish Radio and
Television; Chairman, Supervisory Board, Polish Television; and Head of Strategic
Planning and Development at Polish Television. He has been active in the Council of
Europe, in part as Chairman of the Committee of Experts on Media Concentrations and
Pluralism; Chairman of the Standing Committee on Transfrontier Television; and
Chairman of the Steering Committee on the Media and New Communication Services
(2005-2006). He helped write the report “Public Service Broadcasting in Europe” which
was adopted by the Parliamentary Assembly of the Council of Europe on 27 January
2004. His scholarly books and other publications in the media research field have been
published widely in Poland and internationally.
Kamina, Pascal (PhD)
Pascal Kamina is Professor (Maître de conférences) at the University of Poitiers, where
he teaches EC Law, media law and intellectual property law. He is the author of the
book "Film Copyright in the European Union", Cambridge University Press, June 2002,
and of several monographs and chapters on the subject of film and media law, in French
and in English. He contributes regularly to law journals in France and abroad on these
topics, and participates on a regular basis in studies and seminars at the National and
European levels in the fields of copyright and media. He is also an attorney at law of the
Paris Bar, where his practice is entirely focused on these matters. He was trained both in
France and in the UK, at the University of Cambridge. In France, he holds a Ph.D. on
211
Intellectual Property (1996). In Cambridge, after an LLM in 1991, he obtained a Ph.D.
in 1997 with a thesis on British copyright law.
Lengyel, Márk (Ph.D)
Márk Lengyel graduated at the Faculty of Law of Eötvös Loránd University of Sciences
in Budapest, Hungary. In 1998 he joined the Office of the National Radio and
Television Commission (NRTC). Between 2000 and 2002 he was the leader of the
Directorate of Strategy of the authority. In 2002 he left the NRTC and took part in the
establishing of the Körmendy-Ékes & Lengyel Consulting, a company providing
economic and legal consultancy on questions related to media. In 2005 he also
established his law firm and began to practise as an attorney of law. In the past five
years he took part in a number of projects of high importance for Hungarian media
regulation. Beside his activities as an independent media expert he is also a lecturer in
law at the Moholy-Nagy University of Art and Design, Budapest. At the international
level Márk Lengyel has been an expert in various bodies of the Council of Europe,
including its Steering Committee on the Media and New Communications Services
(CDMC) and its predecessor, the Steering Committee on Mass Media (CDMM), since
1998. Currently he is an expert of the CDMC’s Group of Specialists on public service
media in the information society. He was elected Vice-Chairman of the group for the
period from 2006 to 2008.
Mastroianni, Roberto (LLM, Ph.D)
Roberto Mastroianni is full Professor of European Union law at the University
"Federico II" in Naples, Italy, where he also teaches mass media law. He graduated in
Law at the University of Florence, Italy (1987), and holds a Ph.D. in European Law
from the University of Bologna (1991) as well as a LL.M. from the Dickinson School of
Law in Carlisle (PA), USA (1992). He specialized in International Copyright Law and
in European Mass Media Law at the Universities of Geneva, Amsterdam and New York
(NYLS). Former Researcher of International Law at the University of Florence (19921997), he served as Referendaire at the European Court of Justice in Luxembourg, in
the Cabinets of Advocate General Giuseppe Tesauro and Antonio Saggio (1997-2000).
He practises law in Rome and Naples, and collaborates with several private and public
bodies. Among his publications are a treatise on International copyright Law (Milan,
Giuffré, 1997), a book on the reform of Italian Broadcasting Law (Turin, Giappichelli,
2004), a book on the Audiovisual Media Services Directive (2009) and several articles
and notes on EU law, international law and mass media law.
Maus, Julia
Julia Maus graduated in 2008 at the faculty of law at the Universität des Saarlandes,
Germany. She also studied for one year in Spain at the Universidad Autónoma de
Madrid. She is an attorney at law in a lawyer’s office specialising in media law (Kanzlei
Dr. Ory) and works for the Institute of European Media Law in Saarbrücken, where she
is particularly involved in subjects regarding broadcasting law. In the context of her
activity for the Institute of European Media Law she regularly publishes short reports on
212
recent developments in media law in two legal journals, the “IRIS - Legal Observations
of the European Audiovisual Observatory” and “Multimedia und Recht” (MMR), a
German-language publication for information, telecommunication and media law.
Rodriguez-Pardo, Julian (Ph.D)
Julián Rodríguez-Pardo holds a Ph.D in Mass Media Communication (2000). He is
currently Lecturer in Media Law and Ethics at the University of Extremadura, Spain. He
has published and coordinated several books in Spanish in the field, as well as
"Copyright and Multimedia" in 2003 with Kluwer Law International, which has
international scope. He has been Academic Visitor at the Centre for Socio-Legal Studies
of the University of Oxford and he is currently visiting the Universidad Michoacana San
Nicolás del Hidalgo in Mexico as postgraduate lecturer. Since 2005 he has also been
involved in several research project collaborations with the Institute of European Media
Law, in one case a joint project with the Hans-Bredow-Institute of the University of
Hamburg.
Scheuer, Alexander
Attorney at law, General Manager, Member of the Executive Board of the Institute of
European Media Law (EMR), Saarbrucken/Brussels (2000 to date). Alexander Scheuer
is a member of the Advisory Committee and of the IRIS Editorial Board, both at the
European Audiovisual Observatory. Since 2003 he has been a member of the Scientific
Advisory Board of the Voluntary Self-Regulation of Private Televisions in Germany
(FSF), Berlin. Co-editor and author of the Commentary “European Media Law”,
Castendyk/Dommering/Scheuer, Alphen a/d Rhijn 2008; co-author of the Commentary
on the EU and EC Treaties, Lenz/Borchardt (eds.), Köln, Basel, Genf, München, Wien
(1999, 2003 and 2006; chapters on free movement of workers, and on freedom of
establishment). He has been responsible for several major studies in the area of media
and telecommunications law, commissioned, at European level, inter alia by the
European Commission (co-regulation; media market definitions), the Committee of the
Regions, and the Council of Europe, as well as, at the national level, by different media
authorities in Germany, Austria and Switzerland. He has published widely on European
media, telecommunications, protection of minors and copyright law. He has made
numerous speeches at international and national conferences and has been a speaker and
moderator in several media seminars organized by the EU Council presidency.
________________
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EMR_ Remit of Public Service Media_final

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