Co-Regulation of the Media in Europe
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Co-Regulation of the Media in Europe Published by the European Audiovisual Observatory In addition to the question of which media and services should be regulated and to what extent, the regulatory apparatus itself has been a topic of debate for some time now. The discussion has particularly centred on the possibility, either alongside or instead of traditional legislation (parliamentary acts, ordinances, directives, etc), of introducing “alternative” forms of regulation. Self-monitoring, self-regulation and co-regulation are examples of these alternative types of regulation, the boundaries between which are difficult to define. This IRIS Special focuses in particular on co-regulation. This publication explains co-regulation, offers current examples of its use and discusses possible areas in which it may be applied. It describes the characteristics and legal requirements of co-regulation, as well as the chances and risks associated with it. Any discussion of co-regulation should take into account the current debate over what criteria should be met by the content of audiovisual regulation. Acceptance, competence, flexibility, harmonisation, simplification, legal certainty and speed are just a few key concepts which come to mind and which are discussed in the report. As well as practical demands, the publication considers how co-regulation can be brought in from a technical point of view. In particular, the interfaces between traditional and alternative methods of regulation are explained in concrete terms, with reference to existing European regulatory instruments. Four questions form a central theme throughout the various articles: Is there already a legal framework for co-regulation? Are there good or bad examples of its use? What tools are needed for this and who is in charge of them? Consideration is also given to possible differences between national and supranational co-regulation and to whether there is a need for a European framework for co-regulation. We cannot expect to find conclusive answers to many of these questions. The publication offers sound knowledge and current examples which make co-regulation easier to understand and contribute constructively to the co-regulation debate. The information presented in this IRIS Special was gathered at a workshop on the theme of “Co-regulation of the Media in Europe”, held in September 2002 at the European University Institute in Florence. The different parts of the publication reflect various stages of preparations for and follow-up to the workshop, as well as some elements presented at the event itself. They are supplemented with a selection of background material and information about the workshop. The Observatory is doubly grateful to every one of the workshop participants: firstly, for their excellent contributions to this IRIS Special and secondly for their willingness to share them with the public in this way. Our sincere thanks also go to our two partner institutions, the Institute of European Media Law (EMR) in Saarbrücken and the Institute for Information Law (IViR) in Amsterdam. They not only co-organised the workshop with the Observatory, but each also produced one of the two expert reports found at the beginning of this IRIS Special. Last but not least, we thank the European University Institute in Florence for its superb logistical support. Wolfgang Closs Susanne Nikoltchev Executive Director Head of the Legal Information Department CO-REGULATION OF THE MEDIA IN EUROPE IRIS Special: Co-Regulation of the Media in Europe European Audiovisual Observatory, Strasbourg 2003 ISBN 92-871-5141-5 EUR 27 Director of the Publication: Wolfgang Closs, Executive Director of the European Audiovisual Observatory E-mail: [email protected] Editor and Coordinator: Dr. Susanne Nikoltchev (LL.M. EUI and U of M) Head of Department Legal Information E-mail: [email protected] IRIS Special: Co-Regulation of the Media in Europe Contributing Partner Organisations: Institute for Information Law (IViR) Institute of European Media Law (EMR) Rokin 84 Nell-Breuning-Alleee 6 NL-1012 KX Amsterdam D-66115 Saarbrücken Tel.: +31 (0) 20 525 34 06 Tel.: +49 (0) 681 99 275 11 Fax: +31 (0) 20 525 30 33 Fax: +49 (0) 681 99 275 12 E-mail: [email protected] E-mail: [email protected] URL: http://ivir.nl URL: http://www.emr-sb.de/ Editorial Assistant: Michelle Ganter Marketing: Markus Booms E-mail: [email protected] Typesetting/Print: Pointillés, Hoenheim (France) Publisher: European Audiovisual Observatory 76 Allée de la Robertsau F-67000 Strasbourg Tel.: +33 (0)3 88 14 44 00 - Fax: +33 (0)3 88 14 44 19 E-mail: [email protected] URL: http://www.obs.coe.int © European Audiovisual Observatory, 2003. Opinions expressed in this publication are personal and do not necessarily represent the views of the Observatory, its members or the Council of Europe. CO-REGULATION OF THE MEDIA IN EUROPE INDEX Part I Co-Regulation of the Media in Europe . 1 European Provisions for the Establishment of Co-Regulation Frameworks . 3 The Potential for Practice of an Intangible Idea . 15 Part II 15 Topical Contributions to the Co-Regulation Debate . 27 Self-Monitoring v. Self-Regulation v. Co-Regulation . 29 Introduction to the Self-Regulatory System of the EASA. 33 Assumptions about Self-Regulation in the Media . 37 Protection of Human Dignity, Distribution of Racist Content (Hate Speech). 43 Self-Regulation – The Swedish Model. 47 Technical Standards . 49 Converged Classification. Fantasy or Reality? . 55 Self-Regulation, Co-Regulation and Reform of Media Regulation in the UK . 59 The European Union Legal and Policy Framework. 63 The Approach of the Council of Europe. 67 Self-Regulation or Co-Regulation? . 71 What are the Conditions for Setting-up (for the first time) a Co-Regulatory System? . 77 The Implementation and Enforcement of Co-Regulation Codes in a Transfrontier Context . 79 EASA’s Working Cross-Border Complaints System: Illustrated and Explained . 83 Self-Regulation and Co-Regulation: a Broadcasting Perspective . 87 Part III Self- and Co-Regulation Verbatim: Examples of Texts and Other Background Material . 95 Examples of Texts EASA’s Common Principles and Operating Standards of Best Practice . 97 ICC International Code of Advertising Practice (1997 Edition) Commission on Marketing, Advertising and Distribution, 21 April 1997 . 102 Regulations for the Conduct of an Examination of the Voluntary Self-Regulation Authority for Television (Prüfordnung der Freiwilligen Selbstkontrolle Fernsehen - PrO-FSF) of 30 June 1995 (last amended on 19 April 2002). 107 Protection of Human Dignity and Prohibition of Hate Speech . 112 Code of Ethics for the Swedish Press, Radio and Television . 114 European Telecommunications Standards Institute (ETSI) Directives - April 2002 . 116 CO-REGULATION OF THE MEDIA IN EUROPE Background Material Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain Legal Aspects of Information Society Services, in particular Electronic Commerce, in the Internal Market (Directive on Electronic Commerce) . 123 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with regard to the Processing of Personal Data and on Free Movement of Such Data . 124 Council Recommendation of 24 September 1998 on the Development of the Competitiveness of the European Audiovisual and Information Services Industry by Promoting National Frameworks Aimed at Achieving a Comparable and Effective Level of Protection of Minors and Human Dignity (98/560/EC). 125 Commission of the European Communities: European Governance – a White Paper 25 July 2001, COM(2001) 428 Final . 130 Mandelkern Group on Better Regulation Final Report 13 November 2001 . 131 Recommendation No. R (2001) 8 on Self-regulation concerning Cyber Content (Self-regulation and User Protection against Illegal or Harmful Content on New Communications and Information Services) . 132 Annex Workshop OBS/IViR/EMR 2002: Co-regulation of the Media in Europe . 135 Agenda . 137 List of Participants. 139 CO-REGULATION OF THE MEDIA IN EUROPE 1 Part I Co-Regulation of the Media in Europe What role can co-regulation play in the audiovisual media sector? What is co-regulation anyway? How is it different from self-monitoring and self-regulation? Is there a European legal framework for co-regulation? The first of the following expert reports investigates these questions, concentrating on European Union and Council of Europe legal provisions in this field. As far as audiovisual services are concerned, these provisions cover, inter alia, the bodies entrusted with monitoring powers within a co-regulation framework, as well as the staffing, tasks, competencies and, last but certainly not least, supervision of these bodies. The second report deals with the practical implementation of the idea of co-regulation. This is illustrated using concrete examples from EC law governing the audiovisual sector and domestic legislation on the independence of journalists, incitement to hatred, protection of minors, advertising and technical standards. © 2003, European Audiovisual Observatory, Strasbourg (France) CO-REGULATION OF THE MEDIA IN EUROPE 3 European Provisions for the Establishment of Co-Regulation Frameworks by Dr. Carmen Palzer Institute of European Media Law (EMR), Saarbrücken/Brussels The concepts of co-regulation, self-regulation and self-monitoring have become central to the current political and academic debate on alternatives to traditional forms of public authority control. The debate