Public Service Media According to Constitutional Jurisprudence — the Human Rights and Constitutional Law Dimension of the Role, Remit and Independence

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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 2nd edition 2012

F I N A L R E P O R T

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 (with Krzysztof Wojciechowski); Pascal Kamina; Mark Lengyel; Roberto Mastroianni & Amedeo Arena; and Julián Rodríguez-Pardo on behalf of the European Broadcasting Union/Union Européenne de Radio-Télévision

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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.

The original version of the present study was finalised in summer 2009 and did therefore not cover important recent case-law, and in particular the Manole decision of the European Court of Human Rights. Accordingly, the present 2nd edition contains updated versions of the chapters on Europe and also on Poland, incorporating more recent developments in legislation and jurisprudence.

Saarbrücken, 2 July 2009 and 4 September 2012

5 Table of Contents

PREFACE/DISCLAIMER/ACKNOWLEDGEMENTS ...... 5

EXECUTIVE SUMMARY ...... 9

INTRODUCTION ...... 13

EUROPE ...... 15

I. INTRODUCTION ...... 15 II. JURISPRUDENCE OF THE EUROPEAN COURT OF HUMAN RIGHTS ...... 16 1. Human rights guarantees’ and public service media ...... 16 2. Case law regarding the freedom of broadcasting ...... 19 3. Right of public service broadcasters to apply to the Court ...... 32 4. Summary ...... 34 III. CONVENTION, RECOMMENDATIONS, RESOLUTIONS AND DECLARATIONS OF THE COUNCIL OF EUROPE ...... 34 1. Elaborating on the Art. 10 protection for public service media ...... 35 2. Summary ...... 45 IV. JURISPRUDENCE OF THE COURTS OF THE EUROPEAN UNION ...... 47 1. Introduction ...... 47 2. Article 10 ECHR and its importance for measures aimed at protecting pluralism ...... 48 3. Admissibility of actions/the direct and individual concern for the purposes of Article 230 EC ...... 53 4. Remit and Supervision ...... 53 5. Summary ...... 57 V. PRIMARY AND SECONDARY LAW OF THE EUROPEAN UNION/COMMUNITY ...... 59 1. The Amsterdam Protocol on the system of public broadcasting...... 60 2. The Resolutions of the Council and of the Member States of 1999, and of the European Parliament of 2010 ...... 61 3. The Audiovisual Media Services Directive ...... 63 4. The Revised Commission Communication on the application of State aid rules to public service broadcasting...... 63 5. Summary ...... 64 VI. CONCLUSION AND PERSPECTIVES ...... 64 FRANCE ...... 67

I. INTRODUCTION ...... 67 1. Short overview of the (electronic) media market ...... 67 2. Legal framework for PSM ...... 72 II. JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND INDEPENDENCE OF PSM ...... 77 1. General lines of the relevant jurisprudence ...... 77 2. Mission of PSM in detail ...... 83 III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...... 92 GERMANY ...... 95

I. INTRODUCTION ...... 95 1. Short overview of the (electronic) media market ...... 95 2. Legal framework for PSM ...... 97 II. JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND INDEPENDENCE OF PSM ...... 102 1. General lines of the relevant jurisprudence ...... 102 2. Mission of PSM in detail ...... 111 III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...... 119 1. Constitutional context of the public service online activities ...... 119

6 2. Conclusions and implementation in the 12th Amending Treaty ...... 120 HUNGARY ...... 123

I. INTRODUCTION ...... 123 1. Short overview of the (electronic) media market ...... 123 2. Legal framework for PSM ...... 125 II. JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND INDEPENDENCE OF PSM ...... 128 1. General lines of the relevant jurisprudence ...... 128 2. Mission of PSM in detail ...... 133 III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...... 140 ITALY ...... 143 I. INTRODUCTION ...... 143 1. Short overview of the (electronic) media market ...... 143 2. Legal framework for PSM ...... 146 II. JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND INDEPENDENCE OF PSM ...... 150 1. General lines of the relevant jurisprudence ...... 150 2. Mission of PSM in detail ...... 153 III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...... 163 POLAND ...... 165

I. INTRODUCTION ...... 165 1. Short overview of the (electronic) media market ...... 165 2. Legal framework for PSM ...... 167 II. JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND INDEPENDENCE OF PSM ...... 170 1. General lines of the relevant jurisprudence ...... 170 2. Mission of PSM in detail ...... 172 III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...... 180 SPAIN ...... 181

I. INTRODUCTION ...... 181 1. Short overview of the (electronic) media market...... 181 2. Legal framework for PSM ...... 185 II. JURISPRUDENCE OF THE CONSTITUTIONAL COURT ON THE ROLE, REMIT AND INDEPENDENCE OF PSM ...... 193 1. General lines of the relevant jurisprudence ...... 193 2. Mission of PSM in detail ...... 194 III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...... 201 COMPARATIVE ANALYSIS/CONCLUSION ...... 203

I. INTRODUCTION ...... 203 1. The (electronic) media market ...... 203 2. The legal framework for PSM ...... 203 II. JURISPRUDENCE OF THE EUROPEAN AND NATIONAL COURTS ON THE ROLE, REMIT AND INDEPENDENCE OF PSM ...... 205 1. Remit ...... 205 2. Scope of protection ...... 209 3. Requirements made for, and limits set on, the implementing legislation ...... 211 4. Supervision (limits)...... 215 5. Summary ...... 217 III. POINTS FOR FURTHER DISCUSSION/CURRENT DEVELOPMENTS ...... 218 IV. CONCLUSION ...... 219 AUTHORS ...... 223

8 Executive 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”. In case a State decides to create a public broadcasting system, domestic law and practice must guarantee, in particular by ensuring independence and autonomy, that the system provides a pluralistic service.

2. The Committee of Ministers and the Parliamentary Assembly of the Council of Europe confirm, on numerous occasions, 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 Union 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 Union.

9 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 broadcasting. The State is put in a position to act as a/the ultimate 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 Treaty on the Functioning of the European Union (TFEU).1 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 Union and the Commission reiterate the view that public service broadcasting is a service of general economic interest under the TFEU. The Court highlights 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 107(1) TFEU, it benefits from the derogation for services of general economic interest on the basis of Article 106(2) TFEU 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

1 In the following, we will consistently refer to the denominations and numberings of the various treaties of the European Union as amended by the Treaty of Lisbon. However, in the case of direct quotations from decisions of the European institutions adopted before the Treaty came into effect, we will provide the current numbering in brackets.

10 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.

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 implicitely 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 result 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 Union as well as the Recommendations, Resolutions and Declarations of the Council of Europe (Committe 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

11 to adapt and “upgrade” themselves to the digital era. Increasingly, these requirements are being implemented in national legislation.

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 Union and of the General Court (the former Court of First Instance, CFI) 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/Peter Matzneller

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 Justice of the European Union (ECJ) and of the General Court (former Court of First Instance), and provide an overview over the relevant legal acts of primary and secondary Union 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 audiovisual 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 opinion- forming 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 Jersild v. Denmark, judgment of 23 September 1994, Series A No. 298, § 31.

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 Jersild v. Denmark, judgment of 23 September 1994, Series A No. 298, § 35. 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 aims - preventing disorder in telecommunications and preventing disclosure of

19 Groppera Radio AG and others v. Switzerland, judgment of 28 March 1990, Series A No. 173. 20 Autronic AG v. Switzerland, judgment of 22 May 1990, Series A No. 178.

19 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 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, judgment of 21 September 2000, No. 32240/96. 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 particulary 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 I and II (28.06.2001 and 30.06.2009)

The judgment in the Vgt Verein gegen Tierfabriken I 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, judgment of 21 September 2000, No. 32240/96. 25 Vgt Verein gegen Tierfabriken v. Switzerland I, judgment of 28 June 2001, No. 24699/94.

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 refering 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.

In 2009, the Court had to decide again on a complaint of the Vgt,31 strictly related to the judgment of 2001. On the basis of this first judgment, the Vgt had applied to the Swiss Federal Court for a review of the final domestic judgment prohibiting the commercial in

26 Vgt Verein gegen Tierfabriken v. Switzerland I, judgment of 28 June 2001, No. 24699/94, § 69, refering 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 I, judgment of 28 June 2001, No. 24699/94, § 70. 28 Vgt Verein gegen Tierfabriken v. Switzerland I, judgment of 28 June 2001, No. 24699/94, § 71, refering 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. 31 Verein gegen Tierfabriken (Vgt) v. Switzerland II, judgment of 30 June 2009, No. 32772/02.

22 question from being broadcast. The Federal Court dismissed the application. On the one hand, it held that the Vgt had been unable to show that redress was possible only through the re-opening of the proceedings. The other grounds were that it had not sufficiently shown that it still had an interest in broadcasting the original commercial. Owing to this repeated refusal, the applicant alleged that the continued prohibition on broadcasting the television commercial in question, after the Court had found a violation of its freedom of expression, constituted a new violation of its freedom of expression under Article 10 of the Convention.

In respect of the first reported ground of dismissal, the Court stated that “the reopening of proceedings that have infringed the Convention is not an end in itself; it is simply a means – albeit a key means – that may be used for a particular purpose, namely the full and proper execution of the Court’s judgments.”

The Court, however, criticises the approach chosen by the Swiss Federal Court by assessing that it “[...] is overly formalistic in a context in which it is clear from the circumstances as a whole that the association’s application necessarily concerned the broadcasting of the commercial in question, which had been prohibited by the Federal Court itself on 20 August 1997.”

Further, in deciding on the second ground of dismissal, the Court ascertains that the public interest in dissemination of a publication does not necessarily decrease with the passing of time. Moreover, “the Federal Court did not offer its own explanation of how the public debate on battery farming had changed or become less topical since 1994, when the commercial was initially meant to have been broadcast.”

Finally, the Court also rejects the argument put forward by the Federal Court that the applicant association had alternative options for broadcasting the commercial in question, for example via private and regional channels. According to the Court “[...] that would require third parties, or the association itself, to assume a responsibility that falls to the national authorities alone: that of taking appropriate action on a judgment of the Court.”

Consequently, the Court considers that the Swiss authorities failed to comply with their positive obligation under Article 10 of the Convention. dd) Demuth (05.11.2002)

In the Demuth case32 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

32 Demuth v. Switzerland, judgment of 5 November 2002, No. 38743/97, Reports 2002-IX.

23 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 33 radio advertisement for a religious meeting could be justified under Article 10 ECHR. 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 case34 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, 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.”35

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.

33 Murphy v. Ireland, judgment of 10 July 2003, No. 44179/98, Reports 2003-IX (extracts). 34 Radio France and others v. France, judgment of 30 March 2004, No. 53984/00. 35 Radio France and others v. France, judgment of 30 March 2004, No. 53984/00, § 33.

24 The Court also refers to the Bladet Tromso case36 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.”37

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 case38 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’ 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. 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.

36 Bladet Tromso and Stensaas v. Norway, judgment of 20 May 1999, No. 21980/93. 37 Radio France and others v. France, judgment of 30 March 2004, No. 53984/00, § 37. 38 Faccio v. Italy, decision of 31 March 2009, No. 33/04.

25 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 case39, 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 audivisual service by the established public service broadcasting system. ii) Manole (17.09.2009)

In this case40 the Court had to decide on a complaint by nine journalists, editors and publishers who were employed by the Moldovan public service broadcaster Teleradio- Moldova (TRM). The applicants alleged that they were victims of a practice of undue political influence over editorial policy, in breach of Article 10 ECHR. According to the applicants, TRM had been subjected to political control since its creation. This control increased after the Communist Party won a large majority at the elections in 2001 and started to replace a number of senior managers at TRM with persons loyal to the Government. As a consequence, it was alleged, the information disseminated on the news bulletins was strictly controlled by TRM's senior management and only a trusted group of journalists and technicians was used for interviews and reports of a political nature. Furthermore, the applicants complained that programmes other than the news

39 Kaleta v. Poland, judgment of 16 July 2009, No. 20436/02. 40 Manole and Others v. Moldova, judgment of 17 September 2009, No. 13936/02.

26 bulletins were also subject to censorship; controversial topics were forbidden; the identity of guests and of studio audiences was controlled, live and interactive programmes were avoided and incoming telephone calls were screened.

The applicants also claimed that the Moldovan State had not fulfilled its positive obligations under Article 10 ECHR as it had failed to enact legislation which would offer safeguards against abusive interference by public authorities.

In its judgment, the Court states that there can be no democracy without pluralism and that one of the principal characteristics of democracy is the possibility it offers of resolving a country’s problems through dialogue. According to the Court “[...] it is of the essence of democracy to allow diverse political programmes to be proposed and debated, even those that call into question the way a State is currently organised, provided that they do not harm democracy itself. [...] A situation whereby a powerful economic or political group in a society is permitted to obtain a position of dominance over the audiovisual media and thereby exercise pressure on broadcasters undermines the fundamental role of freedom of expression in a democratic society.”

The Court also identifies the State as the ultimate guarantor of pluralism and holds that “[g]enuine, effective exercise of freedom of expression does not depend merely on the State’s duty not to interfere, but may require it to take positive measures of protection, through its law or practice.”

In the passage quoted below, the Court outlines the duties and obligations of member states in respect of audiovisual broadcasting in general, and, in particular, the guarantees that have to be made in those cases where a member state chose to create a public broadcasting system. Owing to the importance and pertinence of these remarks, paragraphs 100 to 102 of the judgment are reported in their entirety: “100. [...] in the field of audiovisual broadcasting, the above principles place a duty on the State to ensure, first, that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country and, secondly, that journalists and other professionals working in the audiovisual media are not prevented from imparting this information and comment. The choice of the means by which to achieve these aims must vary according to local conditions and, therefore, falls within the State’s margin of appreciation. Thus, for example, while the Court, and previously the Commission, have recognised that a public service broadcasting system is capable of contributing to the quality and balance of programmes (Informationsverein Lentia and Others, cited above, § 33; Tele 1 Privatfernsehgesellschaft mbH v. Austria, no. 32240/96, 21 September 2000; X. SA v. the Netherlands, no. 21472/93, Commission decision of 11 January 1994, DR 76- A, p. 129), there is no obligation under Article 10 to put in place such a service, provided that some other means are used to the same end. 101. Where a State does decide to create a public broadcasting system, it follows from the principles outlined above that domestic law and practice must guarantee that the system provides a pluralistic service. Particularly where private stations are still too weak to offer a genuine alternative and the public or State organisation is therefore the sole or the dominant broadcaster within a country or region, it is indispensable for the proper functioning of democracy that it transmits impartial, independent and balanced news,

27 information and comment and in addition provides a forum for public discussion in which as broad a spectrum as possible of views and opinions can be expressed. 102. In this connection, the standards relating to public service broadcasting which have been agreed by the Contracting States through the Committee of Ministers of the Council of Europe [...] provide guidance as to the approach which should be taken to interpreting Article 10 in this field. The Court notes that in “Resolution No. 1 on The Future of Public Service Broadcasting” (1994), the participating States undertook “to guarantee the independence of public service broadcasters against political and economic interference”. Furthermore, in the Appendix to Recommendation no. R(96)10 on “The Guarantee of the Independence of Public Service Broadcasting” (1996), the Committee of Ministers adopted a number of detailed guidelines aimed at ensuring the independence of public service broadcasters. These included the recommendation that “the legal framework governing public service broadcasting organisations should clearly stipulate their editorial independence and institutional autonomy”, with reference in particular to a number of key areas of activity, including the editing and presentation of news and current affairs programmes and the recruitment, employment and management of staff. The Guidelines also emphasised that the rules governing the status and appointment of the members of the boards of management and the supervisory bodies of public service broadcasters should be defined in a way which avoids any risk of political or other interference. They provided in addition that: “The legal framework governing public service broadcasting organisations should clearly stipulate that they shall ensure that news programmes fairly present facts and events and encourage the free formation of opinions. The cases in which public service broadcasting organisations may be compelled to broadcast official messages, declarations or communications, or to report on the acts or decisions of public authorities, or to grant airtime to such authorities, should be confined to exceptional circumstances expressly laid down in laws or regulations. ...” Finally, in the Appendix to Recommendation Rec(2000)23 on “The Independence and Functions of Regulatory Authorities for the Broadcasting Sector”, the Committee of Ministers again stressed the importance for States to adopt detailed rules covering the membership and functioning of such regulatory authorities so as to protect against political interference and influence.”

The Court concludes that the applicants experienced continuing interference with their rights to freedom of expression throughout the period in question, because “there is evidence of a policy of restricting discussion or mention of certain topics because they were considered to be politically sensitive or to reflect badly in some way on the Government. The applicants, as journalists, editors and producers at TRM’s television station, must have been affected by these policies.”

In respect of the State’s positive obligation under Article 10 ECHR, the Court found that Moldova failed to ensure the independence of the state-owned broadcaster TRM, because “during the period from February 2001 onwards, when one political party controlled the Parliament, Presidency and Government, domestic law did not provide any guarantee of political balance in the composition of TRM’s senior management and supervisory body, for example by the inclusion of members appointed by the political opposition, nor any

28 safeguard against interference from the ruling political party in these bodies’ decision- making and functioning.”

The Court continues: “As set out above (paragraphs 94-101), a positive obligation arises under Article 10. The State, as the ultimate guarantor of pluralism, must ensure, through its law and practice, that the public has access through television and radio to impartial and accurate information and a range of opinion and comment, reflecting inter alia the diversity of political outlook within the country and that journalists and other professionals working in the audiovisual media are not prevented from imparting this information and comment. Where the State decides to create a public broadcasting system, the domestic law and practice must guarantee that the system provides a pluralistic audiovisual service. In this connection, the standards relating to public service broadcasting which have been agreed by the Contracting States through the Committee of Ministers of the Council of Europe provide guidance as to the approach which should be taken to interpreting Article 10 in this field.” jj) Yleisradio Oy (08.02.2011)

In this case,41 the Court had to decide on a complaint by the Finnish public service broadcaster Yleisradio Oy and two of its employees concerning an alleged infringement of Article 10 ECHR. The applicants claimed that they had been condemned by the Supreme Court of Finland because of the broadcast of a programme concerning allegations of incest made in the context of child custody disputes and problems regarding the conduct of medical examinations, the pre-trial investigation and court proceedings in that connection. During the programme, genuine cases of two fathers were used as examples. While the first man remained incognito when interviewed, the second man, A., who had been convicted and sentenced to imprisonment for sexual abuse of his two children, appeared undisguised and with his actual first name used. The Supreme Court concluded that it was probable that several people could have connected A. with X. and Y. on the basis of the information given in the programme. Consequently, the disclosure of that information in the programme constituted such a fundamental breach of the right to privacy that interference with freedom of expression was justified.

In its findings, the Court initially stated that the judgment of the Supreme Court constituted interference with the freedom of expression of the applicants. According to the Court, this interference was also prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others.

With respect to whether or not the interference was “necessary in a democratic society”, the Court considered the margin of appreciation accorded to the State and accepted that the penalties and the awards of compensation in this case were not disproportionate with respect to the competing interests at stake. The Court appreciated the careful balancing exercise made by the Finnish Supreme Court between the two basic conflicting rights, namely that of freedom of expression and the right to private life:

41 Yleisradio Oy and others v. Finland, decision from 8 February 2011, No. 30881/09.

29 “The Court finds convincing the Supreme Court’s conclusion that the important message of the programme could have been brought to the public, without stripping it of its weight, even if both fathers had appeared incognito. In the Court’s view the applicants’ contention about inadequate reasoning of that court as to the question of criminal liability does not raise an issue under the Article 10. For the Court, what is decisive is that the Supreme Court gave relevant and sufficient reasons for the necessity of sanctioning the applicants, and did so in application of the Court’s case-law under Article 10 of the Convention.”

On that basis, the Court rejected the application as being manifestly ill-founded. kk) Radio-télévision belge de la Communauté française (29.03.2011)

This case42 concerned a complaint by the public service broadcaster Radio-télévision belge de la Communauté française (RTBF) concerning an alleged violation of Article 10 following an interim injunction ordered by an urgent-applications judge, preventing the broadcasting of a programme on medical errors and patients’ rights.

The Court started with the assessment that news is a fast-moving operation, so that delaying its publication, even for a short period, might deprive it of all its interest. The Court confirmed that Article 10 does not prohibit prior restraints on broadcasting. However, such restraints require a particularly strict legal framework, ensuring both tight control over the scope of bans and effective judicial review to prevent any abuse: “[...] ces restrictions préalables doivent s'inscrire dans un cadre légal particulièrement strict quant à la délimitation de l'interdiction et efficace quant au contrôle juridictionnel contre les abus éventuels.” (para. 115)43

The Court also concluded that the Belgian Constitution authorised punishment of offences committed in the exercise of freedom of expression only once they had been committed, and not before. In addition, the Court did not agree with the view of the Belgian Court of Cassation, which refused to apply the essential constitutional safeguard against censorship of broadcasting. The Court made it clear that it did not find unacceptable as such a different treatment between audiovisual and print media, e.g. regarding the licensing of radio and television. However, in the present case the differentiation made by the Belgian Court appeared artificial, while there was no clear legal framework to allow prior restraint as a form of censorship of broadcasting (para. 115): “[L]a distinction faite par la Cour de cassation belge selon le support de l’information, à savoir entre la presse écrite et la presse audiovisuelle, et qui entraîne une application des articles différents de la Constitution, ne paraît pas déterminante en l’espèce. Elle n’assure pas la protection d’un cadre légal strict aux restrictions préalables que la Convention entend accorder à la diffusion des informations, idées et opinions, d’autant plus que la jurisprudence ne tranche pas la question du sens à donner à la notion de « censure » [...].”44

42 RTBF v Belgium, judgment of 29 March 2011, No. 50084/06. 43 “[...] these prior restraints must form part of a legal framework which is particularly strict as far as the boundaries of such bans are concerned, on the one hand, as well as effective with a view to a jurisprudential review aimed at excluding their [such bans’] eventual abuse, on the other hand.” 44 “The distinction made by the Belgian Court of Appeal according to the carrier of the information, i.e. between the written press and audiovisual media, which brings about the application of different stipulations of the Constitution, does not seem to be pertinent in the case at hand. It does not afford

30 The Court concluded that the Belgian legislative framework, together with the existing case-law, did not fulfil the condition of forseeability required by the Convention. Consequently, the present interference could not be regarded as prescribed by law, leading to an infringement of Article 10. ll) Sigma Radio Television Ltd. (21.07.2011)

In this case,45 the Court had to the decide on a complaint by the Cypriot commercial broadcaster Sigma Radio Television Ltd., which alleged violations of Articles 6, 10 and 14 ECHR owing to a number of decisions by the Cyprus Radio and Television Authority (CRTA) which imposed fines on the broadcaster for infringing several provisions of national legislation concerning radio and television.

Besides concluding that the judicial review proceedings in the present case were sufficient to comply with Article 6, the Court commented on various legitimate aims able to justify interference with Article 10 which in the present case, according to the Court, were prescribed by law and proportionate: “These [aims] in general, included [...] the importance of ensuring that viewers were informed of the true content of the broadcasts by the use of appropriate acoustic and visual warnings, the protection of pluralism of information, the need for a fair and accurate presentation of facts and events [...].”

Finally, the Court rejected the alleged infringement of Article 14, in respect of which Sigma had claimed that, as a commercial broadcaster, that it had to face stricter rules, restrictions and monitoring than the Cypriot public service broadcasting company CyBC. According to the Court: “the applicant seeks to compare the situation of the stations it runs, which are private stations, with that of the public broadcaster. Given, however, the differences in the legal status and the applicable legal frameworks and the different objectives of private stations and the CyBC in the Cypriot broadcasting system, it cannot be said that they are in a comparable position for the purposes of Article 14 of the Convention.”

The Court therefore concluded that the present case did not indicate any appearance of discrimination contrary to Article 14 of the Convention. 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 an objective guarantee. Especially according to the statements in the Kaleta case, where

the protection of a strict legal framework towards prior restraints which the Convention aims to ensure in view of the distribution of information, ideas and opinions, evenmore because the jurisprudence does not touch upon the question of which meaning should be accorded to the term “censure” [...].” 45 Sigma Radio Television Ltd. v. Cyprus, judgment of 21 July 2011, Nos. 32181/04 and 35122/05.

31 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:46 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 case47 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.”48

46 TV Vest SA and Rogaland Pensjonistparti v. Norway, judgment of 11 December 2008, No. 21132/05. 47 Radio France and others v. France, decision of 23 September 2003, No. 53984/00. 48 Radio France and others v. France, decision of 23 September 2003, No. 53984/00.

32 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 non- governmental organisation in the meaning of Article 34 of the Convention. The Court applies these principles also in the case of Österreichischer Rundfunk v. Austria.49 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.

49 Österreichischer Rundfunk v. Austria, judgment of 7 December 2006, No. 35841/02.

33 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 particulary in the area of audio-visual media which is explicitly confirmed by the Court’s judgments in the Informationsverein Lentia and others and the Manole and 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. In the Sigma case, the Court explicitly confirmed the existing differences between commercial and public service broadcasters, finding expression in the legal status, the applicable legal framework and the different objectives, so that a commercial broadcaster (in the present case claiming to face stricter rules) is not in a comparable position for the purposes of Article 14 of the Convention. In the case Yleisradio Oy, the Court rejected an application because it appreciated the careful balancing by a major court between freedom of expression and the right to private life, so that the restriction of the freedom of expression could be considered necessary in a democratic society. 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,

34 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.

“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,

50 - programme services normally not offered by commercial broadcasters.”

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”51.

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 groups52:

50 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). 51 Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance.

35 “While public service broadcasters have a special commitment to promote a culture of tolerance and understanding [...]”.53

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.”54

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 [...]”.55

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.”.56

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.”57

52 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. 53 Recommendation No. R (97) 21 on the media and the promotion of a culture of tolerance, Point 5. 54 Recommendation No. R (99) 1 on measures to promote media pluralism. 55 Recommendation No. R (99) 1 on measures to promote media pluralism, Point V of the appendix. 56 Recommendation No. R (99) 1 on measures to promote media pluralism, Point II.2 of the appendix. 57 Recommendation 1407 (1999) on media and democratic culture, point 8.

36 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.

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.”58

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 programme- policy 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 Rec (2003) 9 on measures to promote democratic and social contribution of digital broadcasting, the important role of public service broadcasting in a democratic society59: “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 [...]”.60

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

58 Recommendation No. R (96) 10 on the independence of public service broadcasting, Point VII. 59 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. 60 Recommendation Rec (2003) 9 on measures to promote democratic and social contribution of digital broadcasting.

37 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 [...]”.61

In particular public service broadcasting should be enabled to offer new special interest channels and interactive services such as electronic programme guides and programme- related online services.

Recommendation Rec (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.”62

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

61 Recommendation Rec (2003) 9 on measures to promote democratic and social contribution of digital broadcasting, point e. 62 Recommendation 1641 (2004) on public service broadcasting, point 2.

38 Assembly particulary 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 co- operation, 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 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”.63

The European Convention on Transfrontier Television (ECTT)64 contains egally 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 specifiy any measures to be taken by them.65

Article 10a66 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 ECTT67 (to be renamed “Council of Europe Convention on transfrontier audiovisual media services”) as well as a Draft Explanatory Report to the revised ECTT68 was reached in June 2009. The draft

63 Recommendation 1855 (2009) on the regulation of audio-visual media services, point 10.2. 64 Available at: http://conventions.coe.int/Treaty/en/Treaties/Html/132.htm. 65 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. 66 Article added according to the provisions of the Protocol (ETS No. 171), which entered into force on 1 March 2002. 67 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. 68 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.

39 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 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.”69

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.”70

69 Draft Explanatory Report to the revised ECTT, point 63. 70 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.

40 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.71 They 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 re- emphasises 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)”72 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;”.73

In its reply to this Recommendation, adopted on 21 April 2010,74 the Committee of Ministers welcomed the Parliamentary Assembly’s statements for their timeliness and usefulness, and, in particular, appreciated: “the Assembly’s recognition of the need for public service broadcasters to make full use of all the technologies and platforms currently available and those of the future in order to provide high quality programming to the widest audience possible.”75

The Parliamentary Assembly’s Recommendation re-emphasises the statements and demands of earlier Recommendations and Resolutions and can be summarised as follows:

71 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. 72 Recommendation 1878 (2009) on the funding of public service broadcasting, point 16.1. 73 Recommendation 1878 (2009) on the funding of public service broadcasting, point 16.2. 74 Reply of the Committee of Ministers to the Parliamentary Assembly’s Recommendation 1878 (2009) “The funding of public service broadcasting”, AS(2010)Rec1878 final. 75 Committee of Ministers, AS(2010)Rec1878 final, point 4 of the Appendix.

41 • 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 radio- frequencies, 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 important condition for the entrustment of public service broadcasting with a certain mission which therefore has to be guaranteed.

• To enable them to fulfil their mission, Member States and their regulatory bodies have to provide for an adequate funding (system or model).

In its Recommendation Rec (2011) 7 on a new notion of media,76 the Committee of Ministers reiterated that: “[f]reedom of expression, in particular the right to seek, impart and receive information, and its corollary freedom of the media, are indispensable for genuine democracy and democratic processes. In a democratic society, people must be able to contribute to and participate in the decision-making processes which concern them.”77

It affirmed that developments in information and communication technology and their application to mass communication have led to significant changes in the media ecosystem, which is understood: “in broad terms to encompass all actors and factors whose interaction allows the media to function and to fulfil their role in society.”78

In order to ensure a high level of media pluralism, the Recommendation emphasizes the need that member states “remain attentive to addressing situations of strong concentration in the media ecosystem which might result in the misuse of an actor’s ability to shape or influence public opinion or people’s choices with potentially adverse consequences in respect of governance and,

76 Recommendation Rec (2011) 7 on a new notion of media of 21 September 2011. 77 Recommendation Rec (2011) 7 on a new notion of media, point 2. 78 Recommendation Rec (2011) 7 on a new notion of media, point 5.

42 more particularly, political pluralism and democratic processes, especially as new types of services, applications or platforms gain relevance in these respects.”79

In particular, regarding public service broadcasting the Recommendation encourages member states to “adopt strategies to promote, develop or ensure suitable levels of public service delivery so as to guarantee a satisfactory level of pluralism, diversity of content and consumer choice and ensure close scrutiny or monitoring of developments.”80

In its Declaration on public service media governance,81 the Committee of Ministers reiterates the importance of independent public service media: “Editorially independent public service media help counterbalance the risk of misuse of power in a situation of excessive concentration of media, services and platforms.”82

The Declaration assesses that for some public service media organisations the transition from State broadcaster to public service media has yet to be completed. Consequently, according to the Committee of Ministers: “[t]he challenge is both to secure independence from the State and also to earn the trust of the audience by using that independence to exercise genuine editorial autonomy. For all public service media, new skills and approaches will be needed to complement, or in some cases replace, long-established ways of functioning.” 83

Furthermore, as regards public service media in a new media environment, the Declaration comments that media across Europe face rapid and profound change and, as a result, find themselves in an unprecedented period of transition. Nevertheless, “[t]he development of new information and communication technologies gives public service media an unrivalled opportunity to fulfil their remit in new and more effective ways, allowing them to offer better-targeted and more interactive content and services. It also allows public service media to enter into a meaningful dialogue with their audiences, engaging them as stakeholders, participants and co-creators, rather than as simply passive recipients. This is particularly relevant to services aimed at youth, whose use of Internet- delivered, mobile and participatory media is significant. Successful adaptation and adoption of new platforms assist public service media in fulfilling additional purposes within their public service remit.” 84

The Committee of Ministers therefore declares: “[...] that the duty of public service media to promote the values of democracy and diversity within and through their content and services remains of utmost importance in the new dynamic media environment. Public service media play a vital role in supporting such

79 Recommendation Rec (2011) 7 on a new notion of media, point 7. 80 Recommendation Rec (2011) 7 on a new notion of media, point 7. 81 Declaration on public service media governance, Adopted by the Committee of Ministers on 15 February 2012 at the 1134th meeting of the Ministers’ Deputies. 82 Declaration on Public Service Media Governance, point 5. 83 Declaration on Public Service Media Governance, point 6. 84 Declaration on Public Service Media Governance, point 9.

43 non-commercial objectives as social progress, public interest and ability to engage with democratic processes, gender equality, intercultural understanding and societal integration. [...]” 85

Recommendation Rec (2012) 1 on public service media governance of the Committee of Ministers,86 substantially addresses the same points mentioned above in respect to the (contemporarily adopted) Declaration on public service media governance. In addition, the Recommendation encourages Member States to strengthen further and, where necessary, enhance the appropriate legal and financial environment, including the external governance arrangements for public service media organisations. In order to guarantee the independence and sustainable development of public service media and empower them to take up the challenges of technological progress and editorial competition, Member States should inter alia: “- [enact], where they have not already done so, provisions in their legislation/regulations for the remit of public service media, particularly with regard to the new communication services, thereby enabling these media to make full use of their potential and, especially promote broader democratic, social and cultural participation, inter alia, with the help of new interactive technologies; - [encourage] public service media and [provide] them with the necessary resources and tools to review and develop their internal governance arrangements, regardless of where they stand in the transformation into fully-fledged public service media, by drawing inspiration from the appended guiding principles; - [ensure] wide distribution of the specifically designed guiding principles, appended hereto, to the public authorities in order to allow public service media to reinforce their essential position in the media system and improve their functioning in the digital environment to fulfil their democratic mission;”87

In its Annex, the Recommendation further proposes and elaborates guiding principles which public service media organisations should apply in order to update their system of governance. In order to secure adherence to the principles of independence, accountability, effective management, responsiveness, responsibility, transparency and openness, the Recommendation provides for a model which contains “[a]n interlocking set of criteria that public service media organisations can use to assess their system of governance is proposed in the guiding principles. The criteria are designed to operate at every level within the organisation: they relate to the highest decision-making level of the media organisation, but they are also directly related to structures, processes and behaviours operating throughout the organisation.”88

85 Declaration on Public Service Media Governance, point 14. 86 Recommendation Rec (2012) 1 on public service media governance of 15 February 2012. 87 Recommendation Rec (2012) 1 on public service media governance, point 5. 88 Recommendation Rec (2012) 1 on public service media governance, Annex, point 17. The single criteria are described and explained in more detail in points 18-49 of the Annex to the Recommendation.

44 2. 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. In connection with the Committee of Ministers’ Recommendation Rec (2011) 7 on a new notion of media, 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. 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

45 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 - supported by the Committee of Minister’s Reply of 21 April 2010 - 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 Rec (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.

The Recommendation Rec (2011) 7 on a new notion of media of the Committee of Ministers defines a new media ecosystem which should encompass all actors and factors whose interaction allows the media to function and to fulfil their role in society.

The need to ensure independence of public service media is also emphasised in respect of a new media environment (inter alia caused by technical developments) by the Committee of Ministers’ Declaration on public service media governance and the contemporarily adopted Recommendation Rec (2012) 1. In both documents, the Committee of Ministers encourages Member States to guarantee the independence and sustainable development of public service media and to empower them to take up the challenges of technological progress and editorial competition.

46 IV. Jurisprudence of the Courts of the European Union

1. Introduction

The European Union (EU) is not (yet) a party to the Council of Europe; nor has it acceeded 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 communautaire/unionaire and have to be taken into account when interpreting Union law. This is confirmed by Article 11 TFEU.

Accordingly, the ECJ stated in its judgment of 26 June 1997 (Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag)89 that, while a restriction on free movement of goods may be justified with overriding requirements under Article 30 EEC Treaty (now Article 36 TFEU), - 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.”90

While this judgment concerned a derogation from the free movement of goods and the interpretation of Article 30 EEC Treaty (now Article 36 TFEU) in the light of Article 10 ECHR, the ECJ had already clarified in its judgment of 30 April 1974 in the case of Giuseppe Sacchi 91 that

89 ECJ, Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag, [1997] ECR, p. I-3689. 90 ECJ, Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag, op. cit., § 18 refering 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. 91 ECJ, Case 155/73, Giuseppe Sacchi, [1974] ECR, p. 409.

47 “the transmission of television signals including those in the nature of advertisements, comes, as such, within the rules of the treaty relating to services.”92

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 way93.

2. Article 10 ECHR and its importance for measures aimed at protecting pluralism

In the Bond van Adverteerders case94 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 EEC Treaty (now Article 56 TFEU). Secondly, the ECJ recognised the general possibility to justify a derogation on grounds of public policy, namely the maintenance of the non-commercial 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 EEC Treaty (now Article 62 in connection with Article 52 paragraph 1 TFEU) 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) case95, 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.

92 ECJ, Case 155/73, Giuseppe Sacchi, op. cit., § 6. 93 Egbert Dommering, Comments on Article 10 ECHR, in: Castendyk/Dommering/Scheuer, European Media Law, Alphen a/d Rijn: Kluwer Law International, 2008, § 76. 94 ECJ, Case 352/85, Bond van Adverteerders and others v The Netherlands State, [1988] ECR, p. 2085. 95 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.

48 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 EEC Treaty (now Article 56 TFEU).

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 Convention on Human Rights and Fundamental Freedoms, which is one of the fundamental rights guaranteed by the Community legal order.”96

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.”97

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.98

96 ECJ, Case C-288/89, Gouda v. Commissariaat voor de Media, [1991] ECR, p. I-4007, §§ 23-25 refering 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, refering to Case 4/73, Nold v Commission, [1974] ECR, p. 491, § 13. 97 ECJ, Case C-288/89, Gouda v. Commissariaat voor de Media, [1991] ECR, p. I-4007, §§ 24, 25. 98 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.

49 In another case in 199199 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 2100 (now substantially Article 3 Treaty on European Union, TEU), 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 principles of law and that the ECHR is of special significance in that respect.101 The ECJ states that the Community cannot accept measures which are incompatible with the observance of human rights thus recognised and guaranteed.102 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.”103

The ECJ confirmed those statements in its judgment of 5 October 1994 in the TV10 SA v. Commissariaat voor de Media.case104, 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).105

99 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. 100 The constant improvement of the living conditions of the peoples of Europe and the rapid raising of their standard of living. 101 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. 102 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 5/88, Wachauf v Federal Republic of Germany, [1989] ECR, p. 2609, § 19. 103 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., § 45. 104 ECJ, Case C-23/93, TV10 SA v Commissariaat voor de Media, [1994] ECR, p. I-4795. 105 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

50 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 1991106 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 expression, which is precisely what the European Convention on Human Rights is designed to protect.”107

Also in its judgment of 23 October 2003 in the case RTL v. the Niedersächsische Landesmedienanstalt für privaten Rundfunk108 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 2007109 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.”110

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. 106 ECJ, Case C-288/89, Gouda v. Commissariaat voor de Media, op. cit., and Case C-353/89, Commission v. Netherlands, op. cit. 107 ECJ, Case C-23/93, TV10 SA v Commissariaat voor de Media, op. cit., § 25. 108 ECJ, Case C-245/01, RTL v. the Niedersächsische Landesmedienanstalt für privaten Rundfunk, [2003] ECR, p. I-12489. 109 ECJ, Case C-250/06, United Pan-Europe Communications Belgium SA and Others v Belgian State, [2007] ECR, p. I-11135.

51 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”111 which basically represents a legitimate aim to justify a restriction on Article 49 EC Treaty (now Article 56 TFEU).

The ECJ confirms the possibility of justifying restrictions in order to guarantee the maintenance of pluralism also in its judgment of 22 December 2008112 (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.”113

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 Estado114 - 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

110 ECJ, Case C-250/06, United Pan-Europe Communications Belgium SA and Others v Belgian State, op. cit., § 41. 111 ECJ, Case C-250/06, United Pan-Europe Communications Belgium SA and Others v Belgian State, op. cit., § 42. 112 ECJ, judgment of 22 December 2008, Case C-336/07, Kabel Deutschland Vertrieb und Service GmbH & Co. KG v Niedersächsische Landesmedienanstalt für privaten Rundfunk, [2008] ECR, p. I- 10889. 113 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. 114 ECJ, judgment of 5 March 2009, Case C-222/07, Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado, [2009] ECR, p. I-1407.

52 “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.”115

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.116 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.

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 Commission117 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.”118

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

115 ECJ, Case C-222/07, Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado, op. cit., § 27 refering 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. 116 ECJ, Case C-222/07, Unión de Televisiones Comerciales Asociadas (UTECA) v Administración General del Estado, op. cit., § 29. 117 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. 118 CFI, Case T-158/00, Arbeitsgemeinschaft der öffentlich-rechtlichen Rundfunkanstalten der Bundesrepublik Deutschland (ARD) v Commission of the European Communities, op. cit., § 95.

53 case119 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 case120 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 provisions of the Treaty on the free movement of goods and services or the rules on competition.”121

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.”122

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,123 whether the Courts of the European Union 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.

119 ECJ, Case 155/73, Giuseppe Sacchi,op. cit. 120 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, op. cit. 121 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, op. cit., headnote no. 1. 122 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, op. cit., headnote no. 4. 123 Informationsverein Lentia and others v. Austria, judgment of 24 November 1993, Series A No. 276.

54 a) TV2 Danmark

The CFI acknowledged in its judgment TV2 Danmark of 22 October 2008124 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.”125.

With regard to the right of Member States to classify full-spectrum television programmes as SGEIs the Court refers to the Amsterdam Protocol126, which stipulates 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”127 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.”128

124 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, [2008] ECR, p. II-2935. 125 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. 126 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. 127 Resolution of the Council and of the Member States of 25 January 1999 concerning broadcasting (OJ 1999 C 30), recital B of the resolution. 128 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

55 It concludes that the Danish definition of the remit of public service broadcasting fulfils the requirement under Article 86(2) EC Treaty (now Article 106(2) TFEU) 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 gurantee 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.129 b) SIC v. Commission

Also in the judgment of the Court of 26 June 2008130 regarding measures by the Portuguese Republic for the public service broadcaster RTP in order to finance its 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.”131

The Court of First Instance further says that State aid is compatible with the EC Treaty (now TFEU) 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.132 c) M6 and TF1 v. Commission

In its judgment of 1 July 2010133 the General Court (formerly: the CFI) confirms the decision of the European Commission of 16 July 2008 (C(200)3506) which declared compatible with the EC Treaty (now TFEU) State aid on behalf of the public service broadcaster France Télévisions. As a consequence of the planned prohibition of advertising on the public service broadcasters, in 2008 France had notified 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’.” 129 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., § 118. 130 CFI, judgment of 26 June 2008, Case T-442/03, SIC - Sociedade Independente de Comunicação, SA v Commission of the European Communities, [2008] ECR, p. II-1161. 131 CFI, Case T-442/03, SIC - Sociedade Independente de Comunicação, SA v Commission of the European Communities, op. cit., §§ 201, 202. 132 CFI, Case T-442/03, SIC - Sociedade Independente de Comunicação, SA v Commission of the European Communities, op. cit., §§ 211-213. 133 General Court, Joined Cases T-568/08 and T-573/08, Métropole télévision (M6) and Télévision française 1 SA (TF1) v Commission, nyr.

56 Commission that it would provide France Télévisions with (additional) capital of about 150 million €. After the positive decision of the Commission, the two commercial broadcasters M6 and TF1 took action for annulment before the General Court. In its judgment, the General Court initially stated that Member States are allowed to finance public service broadcasting, as long as such financing is awarded to serve its public mandate and provided that it does not harm trading and competition conditions within the EU. Further, the Court referred to Rec. 71 of the broadcasting communication of the Commission (2009/C 257/01), which states that the amount of public compensation must not exceed the net costs of the public service mission, also taking into account other direct or indirect revenue derived from the public service mission. The Court acknowlegded that the notified financing is exclusively intended to cover the costs of France Télévisions for ensuring its public services. In addition, the amount remarkably undercuts the broadcaster’s effective costs, which, according to the calculation of the Commission, amount to approximately 300 million € for the year 2008. The Court therefore dismissed the action, as it found that there were no reasons to assess that the Commssion had failed to motivate its decision appropriately.134

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 (now TFEU), 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 TFEU, 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 TFEU 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-Boitsfort135, when he states that the principle of the freedom of services is a specific manifestation in Community law of the freedom of expression

134 An appeal by TF1 against this judgment of the General Court was dismissed by the ECJ with its order of 9 June 2011, Case C-451/10 P, OJ C 311 of 22 October 2011, p. 14. 135 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.

57 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.”136

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 EC Treaty (now Article 56 TFEU).

Also of relevance here is the opinion in the Centro Europa 7 Srl case137 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 EU Treaty (now Article 11 TFEU), 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.138

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

136 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. 137 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. 138 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, op. cit., § 23.

58 “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.”139

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 TFEU: Article 56 which guarantees the free movement of services (with further guidance in Article 57-62 and exceptions in Articles 51-54 TFEU) and Articles 106, 107 et seq. TFEU which aim to prevent distortions of competition.

Broadcasting is qualified as a service which is protected by Article 56 TFEU, but - according to Article 62 in connection with Article 52 TFEU - 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 107(1) TFEU 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 106(2) TFEU 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 the Treaties, 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 Union.”

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 106(2) TFEU. 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.

139 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, op. cit., § 39.

59 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 Union’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 States140 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 democratic, social and cultural needs of each society and to the need to preserve media 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:141 “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).

140 Protocol on the system of public broadcasting in the Member States (OJ C 310). 141 “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.”

60 2. The Resolutions of the Council and of the Member States of 1999, and of the European Parliament of 2010

The Resolution of the Council and of the Member States of 25 January 1999 concerning broadcasting142 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”143 and its “vital significance for ensuring democracy, pluralism, social cohesion, cultural and linguistic diversity.”144 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.”145 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.”146 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.”147 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.”148

The Resolution of the European Parliament of 25 November 2010 (based on the Bellet- report149) on public service broadcasting in the digital era: the future of the dual system 150 reaffirmed that

142 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 30, of 5 February 1999, p. 1. 143 Resolution of the Council and of the Member States, op. cit., recital B. 144 Resolution of the Council and of the Member States, op. cit., recital B. 145 Resolution of the Council and of the Member States, op. cit., recital C. 146 Resolution of the Council and of the Member States, op. cit., recital 6. 147 Resolution of the Council and of the Member States, op. cit., recital 3. 148 Resolution of the Council and of the Member States, op. cit., recital 5.

61 “public service broadcasters have a pioneering role in stimulating and utilising technological developments in order to offer their content to the public via innovative media and distribution techniques”151 and that “an effective dual system with a genuine balance between public service and private-sector broadcasters, is in the general interest.”152

The European Parliament also sees the challenges of the digital era, which is inter alia characterised by increased consumer choice but also by a risk of audience fragmentation and increasing media concentration. Under these circumstances “public service broadcasting does and should help to maintain a public sphere, providing high quality, socially valuable programming and objective information.”153

In particular, the Resolution called upon the Member States “to ensure that there are sufficient resources to enable public service broadcasters to take advantage of the new digital technologies and to secure the benefits of modern audiovisual services for the general public.”154

In the light of the principle of technological neutrality, the European Parliament recalled that “public service broadcasters, within the remit assigned to them, must have the opportunity to offer their services, including new services, on all platforms.”155

The European Parliament also made explicit reference to the Recommendations and Declarations of the Council of Europe (see above, chapter III) and reminded Member States “of their commitment to these European standards, and recommends that they provide appropriate, proportionate and stable funding for public service media so as to enable them to fulfil their remit, guarantee political and economic independence and contribute to an inclusive information and knowledge society with representative, high quality media available to all.”156

149 European Parliament, Report on public service broadcasting in the digital era: the future of the dual system, 11 October 2010, 2010/2028(INI), http://www.europarl.europa.eu/sides/getDoc.do?pubRef= -%2f%2fEP%2f%2fNONSGML%2bREPORT%2bA7-2010-0286%2b0%2bDOC%2bPDF %2bV0%2f%2fDE 150 Resolution of the European Parliament of 25 November 2010 on public service broadcasting in the digital era: the future of the dual system (2010/2028(INI)), OJ C 99E of 3 April 2012, p. 50-56, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fNONSGML%2b TA%2bP7-TA-2010-0438%2b0%2bDOC%2bPDF%2bV0%2f%2fDE. 151 Resolution of the European Parliament, op. cit., Recital D. 152 Resolution of the European Parliament, op. cit., Recital F. 153 Resolution of the European Parliament, op. cit., Recital N. 154 Resolution of the European Parliament, op. cit., Recital 6. 155 Resolution of the European Parliament, op. cit., Recital 11. 156 Resolution of the European Parliament, op. cit., Recitals 17 and 18.

62 3. The Audiovisual Media Services Directive

The Audiovisual Media Services Directive (2010/13/EU)157 confirms that “[t]he co-existence of private and public audiovisual media service providers is a feature which distinguishes the European audiovisual media market.”158

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.”159

The impact of audiovisual media services on the process of formation of opinion is stressed by the Directive.160 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.161

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.162 The text clarifies that

“[The] values of public broadcasting are equally important in the rapidly changing new media environment.”163 “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

157 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95 of 15 April 2010). 158 Audiovisual Media Services Directive 2010/13/EU, op. cit., recital 13. 159 Audiovisual Media Services Directive 2010/13/EU, op. cit., recital 5. 160 See recital 45 of Audiovisual Media Services Directive 2010/13/EU, op. cit. 161 Recitals 13, 5 and 45 of Audiovisual Media Services Directive 2010/13/EU, op. cit. 162 Available at: http://ec.europa.eu/competition/consultations/2009_broadcasting_review/ broadcasting_review_en.pdf 163 Communication from the Commission on the application of State aid rules to public service broadcasting of 2 July 2009, Point 14.

63 audiovisual services over new distribution platforms, catering for the general public as well as for special interests […]”.164

5. Summary

The principle of pluralism and the essential role of public service broadcasting in this context is explicitly recognised by primary and secondary law of the European Union 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 involvment 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”165 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”.166

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 Union 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 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.

164 Communication from the Commission on the application of State aid rules to public service broadcasting, Point 81. Neelie Kroes, the former European Commissioner for Competition Policy, explained 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. 165 Audiovisual Media Services Directive 2010/13/EU, op. cit., Recital 13. 166 Communication from the Commission on the application of State aid rules to public service broadcasting, Point 81.

64 This is evidently confirmed by the 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 appplicant’s right to receive information. The Informationsverein Lentia and others and the Kaleta cases indicate that the States not only have the possibilty 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 Union 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 Union explicitely 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 services167, but also the legal acts of the European Union, 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 Union’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 the fulfilment of the mission of public service broadcasting requires that it continue to benefit from technological progress168 which corresponds with the requirement of the Committee of Ministers and the Parliamentary Assembly of the Council of Europe to allow and also

167 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). 168 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.

65 encourage public service broadcasters to develop in order to make use of the possibilities offered by the new communication technologies and services.169

169 See Recommendation Rec. (96) 10 on the independence of public service broadcasting, Recom- mendation (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, Recommendation 1878 (2009) on the funding of public service broadcasting, Recommendation Rec (2012) 1 on public service media governance and Declaration on public service media governance of 15 February 2012.

66 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.

67 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

68 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 unencypted at certain hours),

• and pay channels.

The following table lists all channels distributed on DTTV. PSM channels are outlined in grey.

Channels Publishers

France 2 France Télévisions

France 3 France Télévisions

France 4 France Télévisions

France 5 France Télévisions Free ARTE ARTE France

LCP LCP-AN / Public Sénat

TF1 TF1

M6 Métropole Télévision

1 ARTE and France 5 sharing the same frequency in analogue terrestrial.

69 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

Pay 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 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

2 Source: AFP news, 2 March 2009, Mediametrie.

70 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.

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

71 (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.

72 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.

73 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.

74 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 oportunities, 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.

75 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.

76 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 cease- and-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.

77 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 43- 11 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 centered 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.

78 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.

79 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”.

80 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 corolaries 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.

81 “(…) 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.

82 “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 conluded 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

83 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:

84 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 availabilty 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

85 • 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: • “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

31 See above.

86 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° 2001- 142, 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.

87 • 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 consistantly 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

88 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 non- interference 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 suffers, 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

89 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 effected 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) (Limits for) the supervision (economic behaviour and/or content-related output) by (external) supervisory bodies aa) 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, op. cit .

90 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.

91 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 by-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.

92 In application of this strategy the draft new “cahier des charges” (book of administrative regulations) of France Telévisions provides that the company “publishes, copublishes 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.

93 94 Germany

Julia Maus

I. Introduction

1. Short overview of the (electronic) media market

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 öffentlich- rechtlichen 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).

95 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”.

96 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 uses 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. Legal framework for PSM 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.ard-zdf-onlinestudie.de/index.php?id=282.

97 “(1) Every person shall have the right freely to 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: https://www.btg-bestellservice.de/pdf/80201000.pdf.

98 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

99 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 shall befunded through licence fees, income from television and radio advertising and other sources of revenue. The main source of income shall be the licence fee. With the exception of ancillary products, the provision of services and offers as part of its remit in return for special payment shall not be permitted. No income may be generated from offering premium rate telephone services.

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 und Demokratie - Das Recht der Massenkommunikation, Heidelberg, 2008, p. 235.

100 (2) Keeping a device permitting the reception of broadcasting services continues to constitute the obligation to pay the licence 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 (“Rundfunk- finanzierungsvertrag”) 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.

10 Translation available at: http://www.die-medienanstalten.de/fileadmin/Download/Rechtsgrundlagen/ Gesetze_aktuell/13._RStV-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 Constitutional Court, BVerfGE 12, 205 (261).

101 Based on that statement, the supervision of the federal states is limited in essential 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. Jurisprudence of the Constitutional Court on the Role, Remit and Independence of PSM

1. General lines of the relevant jurisprudence

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 Constitutional Court, BVerfGE 74, 297 (323).

102 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) Constitutional law context of PSM aa) Contribution to democracy 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 Constitutional Court, BVerfGE 73, 118 (152). 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 Constitutional Court, BVerfGE 57, 295 (320). 20 Constitutional Court, BVerfGE 12, 205 (260), BVerfGE 57, 295 (320). 21 Constitutional Court, BVerfGE 57, 295 (320). 22 BVerfGE 7, 198 (208) referring to BVerfGE 5, 85 (205). 23 BVerfGE 7, 198 (208) citing Cardozo. 24 Constitutional Court, BVerfGE 12, 113 (125). 25 Constitutional Court, BVerfGE 12, 113 (125). 26 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 117 (118).

103 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 people and the state, control of the state by the people and the integration of the

27 Official english translation, available at https://www.btg-bestellservice.de/pdf/80201000.pdf. 28 Constitutional Court, BVerfGE 87, 181 (198). 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 Constitutional Court, BVerfGE 7, 198 (208).

104 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 commercial broadcasters will not be interested in offering those programmes, and saw

32 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 116. 33 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 116. 34 Constitutional Court, BVerfGE 12, 205 (260). 35 Constitutional Court, BVerfGE 31, 314 (342). 36 Constitutional Court, BVerfGE 7, 228 (257). 37 Constitutional Court, BVerfGE 7, 228 (257).

105 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 aspects and obligations of the “traditional mission” including the cultural responsibility (4th broadcasting judgment, discussed in detail in part II. 2. a)).41

38 Constitutional Court, BVerfGE 57, 295 (320). 39 Ulrich Stelkens, Öffentlich-rechtliche Rundfunkanstalten: Herrenlose Diener oder Verwaltungs- träger?, 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.). 41 Constitutional Court, BVerfGE 74, 297 (326).

106 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) Determination of the scope/extent of protection 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 legislator to establish a framework for the structure of commercial broadcasting are not the same as in respect of public service broadcasting.43

42 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008. 43 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 89.

107 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) Freedom of programming

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

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

44 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 92. 45 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 92. 46 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 92. 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 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 95. 50 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 94 referring to BVerfGE 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 Constitutional Court, BVerfGE 59, 231 (258); 87, 181 (201). 53 Constitutional Court, BVerfGE 87, 181 (201).

108 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 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

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 Constitutional Court, BVerfGE 83, 238 (299).

109 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 Constitutional Court, BVerfGE 90, 60 (91). 59 Constitutional Court, BVerfGE 90, 60 (91); 73, 118 (158); 87, 181 (199). 60 Constitutional Court, BVerfGE 73, 118 (158). 61 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 127 referring to BVerfGE 83, 238, (311); 87, 181,(199); 90, 60, (91). 62 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007. 63 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 127. 64 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 127.

110 2. Mission of PSM in detail a) Remit/(specific) obligations

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 re- emphasises 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 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007. 66 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 115. 67 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 115. 68 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 116 referring to BVerfGE 31, 314 (325); 90, 60 (87); 97, 228 (256); 103, 44 (74), 114, 371 (387). 69 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 116. 70 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 116. 71 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).

111 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 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 126. 73 Constitutional Court, BVerfGE 59, 231 (258). 74 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 122 referring to 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).

112 “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 Constitutional Court, BVerfGE 74, 297 (332). 77 Constitutional Court, BVerfGE 114, 371 (389). 78 Constitutional Court, BVerfGE 74, 297 (346). 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 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 122.

113 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) Safeguards/limits for implementation measures by the legislator

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 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 123.

114 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 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 122 referring to BVerfGE 73, 118 (158 et seq., 171); 74, 297, (325); 83, 238, (297, 316); 90, 60, (90). 84 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 123. 85 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 132. 86 Constitutional Court, BVerfGE 87, 181 (201); 90, 60 (91) and confirmed in the judgment of 11 September 2007, paragraph 124, 125.

115 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 Constitutional Court, BVerfGE 74, 297 (342); 87, 181 (202). 90 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 89.

116 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 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 89. 93 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 89 referring to BVerfGE 73, 118 (171). 94 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 111. 95 Constitutional Court, 2 BvF 4/03, judgment of 12 March 2008, paragraph 130.

117 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 Michael Libertus, Zur Frage der Entscheidungskompetenz bei der Wahrnehmung der Grundversorgungsaufgabe, ZUM 1995, 699 700 with reference to (for example) Hoffmann-Riem, Rundfunkfreiheit im Umbruch Medium 1987, 17, 20. 98 Michael Libertus, Zur Frage der Entscheidungskompetenz bei der Wahrnehmung der 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.

118 public broadcasting corporations (of the ARD) to establish a satellite programme called “(ARD) EINS PLUS” because it negated their power to supervise this matter.

III. Points for further discussion/current developments

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 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 123. 105 In this way Georgios Gounalakis, Regulierung von Presse, Rundfunk und elektronischen Diensten in der künftigen Medienordnung, ZUM 2003, 180 (188).

119 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 effectivity 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 programme- related (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 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007. 108 Constitutional Court, 1 BvR 2270/05, judgment of 11 September 2007, paragraph 118.

120 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.; Carl- Eugen 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.

121 122 Hungary

Márk Lengyel

I. Introduction

1. Short overview of the (electronic) media market

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 reach 91.5% of the total television advertising revenue available on the Hungarian

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 available in Hungarian at: http://www.meh.hu/ szolgaltatasok/dtv/nams20070426.html

123 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.).

40 SHR%

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 Euro) in 20087.

6 National Audiovisual Media Strategy, Vol. II p. 108 7 Source: Hungarian Advertising Association

124 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. Legal framework for PSM 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 furthermore to access and distribute information of public interest”14. “The Republic of Hungary recognizes and respects the freedom of the press.” 15

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). 15 Act XX of 1949 on the Constitution of the Republic of Hungary, §61 (2).

125 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 well as the appointment of the directors thereof (…)” 16 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 practically unchanged since 1996. As one consequence of this the Act does not define the public service remit outside the domain of traditional (radio and television) broadcasting. This means that under the current rules the public service remit does not include Internet or any other type of new media. A further detailed description of the public service remit is provided in sub-chapter II.2.a). bb) Structure/organisation

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, according to an explicit provision of law, is held by a public foundation.18

16 Act XX of 1949 on the Constitution of the Republic of Hungary, §61 (4). 17 Broadcasting Act §64 (3). 18 Broadcasting Act §64 (4); §65.

126 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:

21 - General purpose state subsidy. This replaced the licence fee 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 due to MTV, 28% is due to MR and 24% is to be paid to Duna Tv.24 These amounts

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 re- introduction 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 Broadcasting Act §84 (2). 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.

127 are paid by the Broadcasting Fund to the public service broadcasting companies via their respective public foundations.

25 - State-paid subsidies for covering costs of programme transmission. 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 hour 27 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.

II. Jurisprudence of the Constitutional Court on the Role, Remit and Independence of PSM

1. General lines of the relevant jurisprudence

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

25 Broadcasting Act §75 (1). 26 For example: Act CLXIX of 2007 on the Budget of the Republic of Hungary for 2008 §85 (6). 27 Broadcasting Act §24 (1).

128 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 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.

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. 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.

129 a) Constitutional law context of PSM 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. bb) Contribution to democracy 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

33 Decision 30/1992. (V. 26.) AB, III. 2.1.

130 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

cc) Contribution to culture and education

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.

34 Decision 30/1992. (V. 26.) AB, III. 2.1. 35 Decision 30/1992. (V. 26.) AB, III. 2.2.

131 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. 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.

36 Decision 37/1992. (VI. 10.) AB, III. 3. 37 BVerfGE 73, 118. 38 Decision 47/1994. (X. 21.) AB, III. 2.

132 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. Mission of PSM in detail 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: “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.

39 Decision 31/1995. (V. 25.) AB. 40 Decision 46/2007. (VI. 27.) AB III. 1.4. 41 Decision 37/1992. (VI. 10.) AB, II. 2. b. 42 Decision 37/1992. (VI. 10.) AB, II. 2. b.

133 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:

- from the standpoint of content and programming;

- 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

43 Decision 37/1992. (VI. 10.) AB, II. 2. d. 44 Decision 37/1992. (VI. 10.) AB, III. 3. 45 Decision 22/1999. (VI. 30.) AB, IV. 7.2. 46 Decision 1/2007. (I. 18.) AB, III. 5. 47 Broadcasting Act §2, §19.

134 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 about issues deserving the attention of the public.”49

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;

- providing programmes for minors, serving their physical, psychological and moral development;

50 - providing assistance to people with disabilities.

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

48 Broadcasting Act §2, §19. 49 Broadcasting Act §2, §18. 50 Broadcasting Act §23 (4).

135 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 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

136 programme of “MR2Petőfi” cannot be regarded as a public service programme51. The MR appealed against this decision to the court. b) Safeguards/limits for implementation measures by the legislator

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 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:

51 ORTT decision 242/2008 (I.30.) 52 Decision 37/1992. (VI. 10.) AB, III. 3. 53 Decision 37/1992. (VI. 10.) AB, III. 3. 54 Decision 37/1992. (VI. 10.) AB, III. 3.

137 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 into the national regulation. The requirement of a qualified majority also means that the political and moral responsibility for solving these issues remains unclear.

55 Decision 37/1992. (VI. 10.) AB, III. 3. 56 Decision 47/1994. (X. 21.) AB, III. 2. 57 Decision 47/1994. (X. 21.) AB, III. 2.

138 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) (election)

Presidency of the Board of Trustees Controlling body for the Board of Trustees (at least 8 members) members (3 ) (supervision) Board of Trustees (21 - 23 members)

governance and supervision nomination Civil organisations 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; c) to disappropriate assets or profits (dividends) from the companies;

139 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.

III. Points for further discussion/current developments

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. However, because of the political landscape characterised by the extremely hostile

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

140 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.

141 142 Italy

Roberto Mastroianni/Amedeo Arena

I. Introduction

1. Short overview of the (electronic) media market

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.

143 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.

144 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.

145 2. Legal framework for PSM 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 della radiotelevisione, hereinafter: The Broadcasting

146 Code), 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, RAI-Radiotelevisione 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 so- called 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.

147 bb) Structure/organisation

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.

148 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.

149 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. Jurisprudence of the Constitutional Court on the Role, Remit and Independence of PSM

1. General lines of the relevant jurisprudence

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 law-maker'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 law-maker to lay down a comprehensive legal framework to regulate that sector. 7 Judgment 225/74.

150 a) Constitutional law context of PSM 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) Contribution to democracy

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.

151 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) Contribution to culture and education

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) (Explicitly named parts of the) remit (general description)

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) Determination of the scope/extent of protection

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 one- sided 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

152 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. Mission of PSM in detail a) Remit/(specific) obligations 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

153 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 case- law, 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.

154 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 activites 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) The constitutional law background to the concretization of the remit in the broadcasting law

(1) 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

155 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.

156 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

157 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.

158 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 l'editoria e la RAI - Radiotelevisione italiana S.p.a., per la trasmissione di programmi radiofonici 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 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 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.

159 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) Safeguards/limits for implementation measures by the legislator

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 law-maker 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.

160 225/74, 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) (Limits for) the supervision (economic behaviour and/or content-related output) by (external) supervisory bodies

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.

161 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) fromArticle 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 prespectives: 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 therof 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.

162 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 provisions are the users or the undertakings operating the other platforms. Whilst the former option would better reflect the Union 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

163 platforms, 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 law-maker, it would ultimately be for the courts to determine, in the light of the relevant provisions of European Union law, to what extent the public service broadcasting principles applying to terrestrial linear broadcasting can be extended to other broadcasting platforms.

164 Poland

Karol Jakubowicz∗

I. Introduction

1. Short overview of the (electronic) media market

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-and- talk format (TOK FM)

• Around 200 local radio stations, most forming part of networks.

Private television comprises:

• 1 nation-wide commercial channel (Telewizja POLSAT);

∗ In the original report drafted by Dr Karol Jakubowicz, Dr Krzysztof Wojciechowski has updated the relevant information on the Constitutional Tribunal’s jurisprudence and legislative developments in Part I.2. and Part II.

165 • Three sub-national, generalist commercial channels (TVN, TV 4, TV PULS),

• 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

Cable TV Digital TV No. of No. of Operator Subscribers Market share subscribers Internet towns HHs

UPC Polska 1,000,000 116 22.22% 100,000 358,000

Vectra 711,000 151 15.80% 190,000 175,000

Multimedia Polska 662,000 14.71% 70,700 260,000

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 126,000 16 2.80% n.d. n.d. Communications

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).

166 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. Legal framework for PSM 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.”

167 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) Structure/organisation

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

168 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 three members, appointed and possibly dismissed by the NBC, by a resolution, on the motion of the Supervisory Council or the general meeting 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 seven members in case of TVP S.A. and Polish Radio S.A., and five members in regional public radio companies. Five members of the Council, respectively of TVP and PR are selected in the competition held by the National Council, with the exception of one member who is appointed by the minister in charge of the State Treasury and one

169 member who is appointed by the minister in charge of culture and national heritage. The Supervisory Council elects the Chair from amongst its members.

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 media service providers within the limits of powers granted to it under the Act”.

II. Jurisprudence of the Constitutional Court on the Role, Remit and Independence of PSM

1. General lines of the relevant jurisprudence

The jurisprudence1 highlights the need for the existence of independent PSM, well- funded 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). Judgment of 4 November 2009 (Case Kp 1/08) (Broadening of exemptions from licence fees); Judgment of 16 March 2010 (Case K 24/08) (Enforcement of licence fees).

170 a) Constitutional law context of PSM aa) Contribution to democracy

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) Contribution to culture and education

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) (Explicitly named parts of the) remit (general description)

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) Determination of the scope/extent of protection

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

171 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. Mission of PSM in detail a) Remit/(specific) obligations

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).

172 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: “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”.

173 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 and sports activities, 8) dissemination of knowledge of the Polish language, 8a) paying due regard to the needs of national and ethnic minorities and communities speaking regional languages, including broadcasting news programmes in the languages of national and ethnic minorities and in regional languages, 9) production of educational programmes and ensuring access by people of Polish descent and Poles living abroad to such programmes, 10) ensuring accessibility of programme services or parts thereof as well as of other services to visually impaired persons and hearing impaired persons, 11) promotion of media education. 2. Programme services and other 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,

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/35ac5b7ebf4e590d783cdac8fda 7051e1223892790343.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.

174 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, 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, 7b) serve to promote and popularize sport, 8) contribute to combating social pathologies, 9) (repealed) 10) contribute to media education.”

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.

In 2010 the amendment to the Broadcasting Act added the new paragraphs 3 and 4 in Article 21, under which PSM organisations, acting in agreement with the National

175 Broadcasting Council shall prepare, every year financial and programme plans of projects involving performance of tasks resulting from the carrying-out of the public service remit which have to be financed with public funds, having regard to a part of costs of operation and development of these organizations. Dates for submission and scopes for those plans shall be defined by the NBC in a regulation. The first such plans have been adopted for 2012. b) Safeguards/limits for implementation measures by the legislator

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 an 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 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; Judgment of November 4, 2009, Case Kp 1/08; Judgment of March 16, 2010, Case K 24/08) 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. 17/93,7 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.

6 Judgment of 2 March 1994 (Case W. 3/93) (Christian values). 7 Judgment of 7 June 1994 (Case K. 17/93) (Christian values).

176 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.

The importance of adequate public funding for PSM, with reference to the Judgment of 9 September 2004 (Case K 2/03), has been restated by the Tribunal in the Judgment of 4 November 2009 (Case Kp 1/08). In the latter case the Tribunal dealt with the act of 13 June 2008 amending the Licence Fee Act and providing for significant broadening of social exemptions from the fees. Noting the importance of public funding for the remit of PSM, the Tribunal stressed the competence and broad freedom of the law-maker with regard to a method of financing of PSM from public funds, the level of such a funding, and its details. The Tribunal added: “The freedom to chose a form of financing of PSM does not release the law-maker from the obligation to establish proper rules of funding. Fulfilment of the public service remit by PSM is not possible without safeguarding of adequate financing contributions from public funds.”

Nevertheless, the Tribunal concluded that the freedom of the law-maker includes the right to introduce the exemptions from the licence fees for certain groups of citizens and to choose the relevant criteria for such exemptions. Consequently, the Tribunal did not declare unconstitutional the broadening of social exemptions provided for in the revision of the Licence Fee Act.

In the Judgment of 16 March 2010 (Case K 24/08) the Tribunal confirmed the constitutionality of administrative enforcement of the licence fees, and the possibility of such an enforcement in practice, inter alia on the basis of the regulatory freedom of the law-maker to decide on the type of enforcement of the fees and the competent entities. The Tribunal suggested a more effective collection and enforcement of the licence fee in practice, but also encouraged reflection on possible legislative improvements to the system to make it more simple and effective. c) (Limits for) the supervision (economic behaviour and/or content-related output) by (external) supervisory bodies

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”.

177 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. One member of the Supervisory Council respectively of TVP and PR is also appointed by the Minister of Culture. 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 submit the motion to the NBC to dismiss their members.

8 Judgment of 28 November 1995 (Case K. 17/ 95) (Programme Council and must-carry).

178 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. These powers were recently broadened by the revision of the Broadcasting Act enacted in 2010, which obliged the PSM organisations to prepare “in the agreement with the NBC” financing and programme plans of projects involving performance of public service tasks, as well as giving the NBC the competence to dismiss members of the Board and Supervisory Councils. 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 30 June every year at the latest, the method of distributing the licence fee proceeds amongst the public radio and

179 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”.

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.

III. Points for further discussion/current developments

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: “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 …”

Under Article 21.1a.5, public service broadcaster have as a task to “work on new technologies of production and transmission of radio and television programme services”. As of May 2011 duties listed in Article 21 paragraph 2 apply not only to programmes but also to other services of PSM.

These are interpreted as providing the legal foundation for PSM to branch out into new media services, which are subject to the same qualitative requirements as programmes.

In 2009, new legislation on PSM, an act on Public Tasks in Media Services, was preparated and passed bythe Parliament, but effectively vetoed by the President (the Parliament did not reject the veto). The far-reaching changes, including in particular replacement of the licence fee by the funding of PSM from the State budget, and other solutions that might change the legal status described above, did not come into effect.

Although the new Law has finally been rejected, PSM face financial difficulties because of the low level of public funding, related to still unresolved, atthe time of writing this update, problems with effective collection and enforcement of the licence fees.

180 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

Daily Radio TV broadcasting Internet Cinema newspapers broadcasting (viewers per day) (users per day) (spectators per (readers per (listeners per day) week) day) 2008 42.1% 53.1% 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.

181 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 totalof 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.

182

Free Digital Terrestrial Television Broadcasters

PUBLIC PRIVATE

NUMBER OF NUMBER OF NAME NAME PROGRAMMES 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.

183 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.

184 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 – 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 Data source: AIMC (Asociación para la Investigación en Medios de Comunicación).7

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. Legal framework for PSM 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.

185 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.

186 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 limits 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, in public interests 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).

187 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.

188 Just a few days after approval of the Law, the Spanish Parliament approved the so- called “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).

189 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.

190 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).

191 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.

192

II. Jurisprudence of the Constitutional Court on the Role, Remit and Independence of PSM

1. General lines of the relevant jurisprudence 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) (Explicitly named parts of the) remit (general description)

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) Determination of the scope/extent of protection

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

193 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. Mission of PSM in detail a) Remit/(specific) obligations

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 16-5- 2005; STS 4-6-2006, STC 183/2006, 19-6-2006; STC 193/2006, 19-6-2006; and STC 191/2006, 19- 6-2006.

194 • 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 measuredbeforehand, 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.

195 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.

196 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%:

• News programmes shall be entirely produced by RTVE 100% of own production.

25 Primer Mandato-Marco a la Corporación RTVE, de 30 de junio de 2006, (BOE, 30.6.2006).

197 • 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 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.

198 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) Safeguards/limits for implementation measures by the legislator

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.”

199 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 17-11- 1997; in respect of telecommunications by wire, STC 12/1995, 16 January, STC 40/1996, 12 March,

200 c) (Limits for) the supervision (economic behaviour and/or content-related output) by (external) supervisory bodies

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.

III. Points for further discussion/current developments

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).

201 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.

202 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

203 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.

204 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. In the Kaleta case, and later in Manole, the Court stressed that where a State decides to create a public broadcasting system, domestic law and practice must guarantee that the system provides a pluralistic service.

205 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 programming based on high ethical and quality standards. The Committee of Ministers in Recommendation No. R (99) 1 on measures to promote media pluralism re- emphasises 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 (subsequently appreciated by the reply of the Committee of Ministers, AS(2010)Rec.1878 final).5

The Courts of the European Union also stress the important role of public service broadcasting for pluralism and democracy, as well as for culture, when refering to the Protocol on the system of public service broadcasting6, introduced by the Treaty of Amsterdam and then annexed to the EC Treaty, which confirms 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”.

In the TV2 Danmark case7 the Court of First Instance (now General Court) 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

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 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. 7 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, [2008] ECR, p. II-2935.

206 “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

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

8 Resolution of the Council and of the Member States of 25 January 1999 concerning broadcasting (OJ 1999 C 30), recital B.

207 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. 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 case- law, 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 Union too stress the important role of public service broadcasting for culture and refer, inter alia, to the statements of the European Union 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.

9 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.

208 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.

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). In the Manole case, the Court held that it is indispensable for the proper functioning of democracy that the public broadcaster transmits impartial, independent and balanced news, information and comment. Such a guarantee of political balance, according to the Court, is missing if the broadcaster’s management and supervisory body is established without including members appointed by the political opposition.

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

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.

209 financial resources to participate, which is explicitly confirmed by Recommendation 1878 (2009) on the funding of public service broadcasting (subsequently appreciated by the reply of the Committee of Ministers, AS(2010)Rec1878 final).

The European Court of Justice guarantees protection of the freedom of expression within the fundamental freedoms of the FEU Treaty, i.e. the free movement of goods and the free provision of services. Although in its judgments regarding a violation of the FEU 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 possibilty of justifying restrictions on the free provision of services with legitimate aims resulting from the 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 (now General Court), 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 (and a correlating right to 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.

210 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 to take 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 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 and Manole cases 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.

211 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.

In the same vein, Recommendation Rec (2011) 7 on a new notion of media of the Committee of Ministers encourages the Member States to adopt strategies to promote, develop or ensure suitable levels of public service delivery so as to guarantee a satisfactory level of pluralism, diversity of content and consumer choice and ensure close scrutiny or monitoring of developments. In respect of a new media environment, Recommendation Rec (2012) 1 on public service media governance of the Committee of Ministers encourages Member States to guarantee the independence and sustainable development of public service media. 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, 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,

212 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

In this regard, the General Court of the European Union, in the joined cases Métropole télévision (M6) and Télévision française 1 SA (TF1) v Commission, explicitly confirmed that Member States are allowed to finance public service broadcasting, as long as such financing is awarded to serve its public mandate and provided that it does not harm trading and competition conditions within the EU.

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. 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) Freedom of programming

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

213 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. 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

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.

214 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 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

215 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 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.

12 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, op. cit. 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 Commission of the European Communities, op. cit., § 118.

216 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 Union 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 Union, 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 Union, 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 case-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

217 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.

III. Points for further discussion/current developments

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 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 Recommendations Rec (2007) 3 on the remit of public service media in the information society and Rec (2012) 1 on public service media governance as well as in the Parliamentary Assembly’s Recommendation 1641 (2004) on broadcasting. The Parliamentary Assembly re-emphasizes this statement in Recommendation 1855 (2009) on the regulation of audio-visual 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 Union such as the Amsterdam Protocol, the Resolution of the Council of 25 January 1999, the Audiovisual Media Services

218 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 constituing 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 and Manole cases 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 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

219 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 as well as the legal acts of the European Union 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 informatory, 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.

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 Union, 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 explicitely 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.

220 • The Recommendations, Resolutions and Declarations of the Council of Europe (Committee of Ministers and the Parliamentary Assembly) and the legal acts of the European Union 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.

221 222 Authors

Arena, Amedeo (LL.M., 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”. Called to the Bar in Naples in 2008, he is a senior associate at Studio Legale Mastroianni, specialising in EU, antitrust and broadcasting law.

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 (2004- 2006). 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 (Ph.D)

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 monographes 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

223 Ph.D. on 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 (LL.M., 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 (1992- 1997), 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.

Matzneller, Peter (LL.M. Eur.)

Peter Matzneller graduated in law at the Leopold-Franzens University in Innsbruck, Austria, in 2007. After completing his practical education at the Higher Regional Court of Innsbruck (Oberlandesgericht Innsbruck) and the Regional Government of Tyrol (Tiroler Landesregierung), in 2009 he obtained a postgraduate Masters diploma from the Europa-Institute at the University of Saarland, Saarbrücken (LL.M. Eur.), with specializations in European Media Law and European Competition Law. Since January

224 2010 he has been working as a scientific researcher at the Institute of European Media Law (EMR), where he is mainly engaged in issues concerning advertising, sponsorship and product placement, as well as the content of commercial communications (advertising principles, prohibitions and restrictions). He is currently in charge of the project commissioned by the European Commission on the assessment of transposition and application of the Audiovisual Media Service Directive (2010/13/EU) in the EU Member States and on the monitoring of the relevant advertising practices. His research is also focussing on the law of new media, and in particular law enforcement on the Internet.

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. In 2008 and 2009, she worked as an attorney-at-law in a lawyer’s office specialising in media law (Kanzlei Dr. Ory) and for the Institute of European Media Law in Saarbrücken, where she was particularly involved in subjects regarding broadcasting law. In the context of her activity for the Institute of European Media Law she regularly published short reports on 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. Since the end of 2009, she has been working as scientific assistant to the faction of the political party Die Linke in the regional Parliament of the Saarland.

Rodríguez-Pardo, Julián (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 and 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 Rijn 2008; co-author of the

225 Commentary on the EU and FEU Treaties, Lenz/Borchardt (eds.), Köln, Basel, Genf, München, Wien (1999, 2003, 2006 and 2010; 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 telecommuniations law, commissioned, at European level, inter alia by the European Commission (co-regulation; media market definitions), the European Parliament, 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 expert seminars organized by the respective EU Council presidency.

Wojciechowski, Krzysztof (Dr)

Dr Krzysztof Wojciechowski was born in 1968. In 1992 he graduated from the University of Warsaw, Faculty of Law and Administration. He trained for the profession of legal adviser in the Warsaw District Bar of Legal Advisers between 1997- 2001 and is a legal adviser (radca prawny) in the Warsaw Bar. In 2003 he obtained the title of doctor of law, on the basis of the thesis devoted to the protection of sports events and audiovisual sports transmissions. He works as a lecturer at the University of Warsaw, Faculty of Law and Administration, in the Institute of Civil Law, currently in the Department of Intellectual Property Law. He teaches civil law and intellectual property law, including European copyright law. As a legal adviser Dr Wojciechowski works for Polish public service television, Telewizja Polska (TVP), where he holds the position of adviser to the Board of Management. He is involved in the work of European Broadcasting Union and is the Chairman of the EBU's Statutes Group, and a member of the EBU Legal and Policy Committee and of the Copyright Group. He has also cooperated with the Council of Europe and UNESCO. Currently he is a member of the Intergovernmental Council of UNESCO International Programme for the Development of Communications (IPDC). Dr Wojciechowski has participated in legislative works in Poland on copyright and media. He is a member of the Copyright Committee in Poland – the arbitration board responsible for approval of tariffs and certain other matters relating to collecting societies. Dr Wojciechowski has also been an ad hoc expert of the National Broadcasting Council and the Ministry of Culture and National Heritage in Poland.

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