The Structure and Governance of Public Service Broadcasting A Comparative Perspective The Structure and Governance of Public Service Broadcasting Giorgia Pavani The Structure and Governance of Public Service Broadcasting A Comparative Perspective Giorgia Pavani Department of Political and Social Science Alma Mater Studiorum Università di Bologna Bologna, Italy ISBN 978-3-319-96730-1 ISBN 978-3-319-96731-8 (eBook) https://doi.org/10.1007/978-3-319-96731-8 Library of Congress Control Number: 2018949146 © The Editor(s) (if applicable) and The Author(s) 2018 This work is subject to copyright. 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Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affliations. Cover illustration: © Melisa Hasan This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland … though it will never make up for all your dedication to me over these years, this book is for you, Luca. Thank you for helping me to look ahead. FOREWORD PUBLIC SERVICE BROADCASTING: MODELS AND GOVERNANCE Having been part of a school, like that of Paolo Barile in Florence, that was formed on the comparative research method, I feel the importance of presenting this work by Giorgia Pavani on the public service television and its governance. In the late 1960s, Italy had a solid monopoly governed by limited legislation, through a Convention signed in 1952 and characterized by strict governmental control. In that period we decided to undertake the study of the different tel- evision models adopted in Europe (at least in the major countries), com- paring them with the very different ones adopted in North and South America. Approaching the theme as constitutional lawyers we, therefore, started our analysis by considering Article 21 of the Italian Constitution and the fundamental principles contained therein. Many of the leading scholars in the feld, in that period, were studying freedom of expression, rightly considered to be the foundation of the democratic regime, and the increasingly important medium of television was being studied within the context of that freedom. Before and after Barile, the names of scholars such as Esposito, Elia, Fois, Paladin, Amato and Pace stand out. To some extent all the schol- ars of the Florentine school addressed these themes, starting from Cheli, vii viii FOREWORD De Siervo, Caretti, Merlini, Grassi and myself. Many of the younger ones continued along this path and of these, I wish to give special mention to Filippo Donati. The frst question that everyone asks themselves, as Giorgia Pavani rightly does, concerns the reasons why radio and television should be regulated. In this case, once again, the answer is provided directly by the Constitution. It is the constitutional system itself, founded on Articles 21 and 41, and initially also on Article 43, that requires a complete and in-depth regulation of this phenomenon. As in 1948, and from before that in the debates of the Constituent Assembly, the need for a press law was recognized. Over the years, dif- ferent versions of this were enacted while at the beginning of the 1970s, there was a strong push for a broadcasting law from politicians, legal the- orists and then the Constitutional Court itself. The Constitution, in addition to the obvious freedom of expres- sion and enterprise in the feld of information, is based, as the Italian Constitutional Court has pointed out, on the fundamental principle of internal and external pluralism, which implies not only the right to inform but also the right to receive information. It recognizes, in com- plex editorial structures, the independence of journalists and the edito- rial independence of the governing bodies of public media companies. Finally, special fnancing arrangements are guaranteed for the governing bodies of the latter to avoid any form of indirect conditioning. The frst broadcasting law of 1975 is based on these principles, as set out by the Constitutional Court in 1974 (n. 225). This early legislation was followed by further broadcasting laws, in 1993, in 2004 (then trans- ferred into the 2005 Consolidated Text of radio and television) and then in 2015. As we are well aware not all the principles indicated therein have been respected over time, however, these laws progressively built a model of public service that fts within the tradition widespread through- out Europe. On the other hand, Italy’s private broadcasting sector has seen the creation of a model of deregulation, initiated by the famous judgement in 1976 of the Constitutional Court (n. 202); this introduced, con- sciously or unconsciously, a number of characteristics typical not only of the North American television model, but also many of its contents. The mixed system introduced in those years, which is aptly refected in the 1990 Mammì law, is a totally original system even on the European FOREWORd ix scene. The Italian Rai-Mediaset “duopoly” is a subject widely discussed in Europe and not always in positive terms. Perhaps due to the concern raised by this state of affairs, Europe began to legislate with Directives and Conventions that aimed to cre- ate an increasingly uniform European space. The “Television with- out frontiers” Directive 89/552/EEC, which was accompanied in the Council of Europe by a parallel initiative, i.e. the European Convention on Transfrontier Television (May 5, 1989) clearly has this objective. The “Television without frontiers” Directive, which later became the “Audiovisual Media Services” Directive, is now at its fourth revision. The new version—which will at last include online services that have so far been excluded—should be approved by the end of 2018 and will enter into force in 2019. The current Directive—while recognizing the competence of the Member States in defning the public service—estab- lishes a series of common criteria to be respected in the mixed European radio and television broadcasting system. The TWF Directive sets min- imum standards for those wishing to straddle national borders and marks the birth of the European mixed system. It should be noted that Mediaset has battled against this minimum set of rules. This Directive also contains the section on “protected events” that—in common with all free-to-air programmes—establishes common principles on citizens’ right to access not only information but also certain events (sports or other) of major importance for society. In terms of public services, the most signifcant element of compar- ison is instead the “Protocol on the system of public broadcasting in the Member States”, annexed to the Treaty of Amsterdam (2 October 1997). The introductory note is fundamental in that it directly links the “public broadcasting system” to the “democratic, social and cultural needs of every society, and the need to preserve the pluralism of the media”, clearly recalling the constitutional motivations referred to above. This premise, now common in Europe, clearly strengthens the European model of public services and, of course, their governance. Giorgia Pavani dedicates her best pages to this topic with an analy- sis that, in my opinion, will be widely shared. The Italian legislator fuc- tuated at length, even during the delicate preparatory phases, between reference to the British model of the BBC, especially in the proposals presented by Minister Gentiloni (during the Prodi government) and the French model, structured around the centrality of the Authority. What x FOREWORD emerges from the 2015 reform (Law 220) probably does not adhere to either. The model of a governance of public television characterized by an eminent CEO could be positive if the choice were not dependent on an overly strong infuence of the majority-Government coupling, which seems to neglect the fundamental precepts of the Court regarding inde- pendence. Such are the early impressions. We hope that, in practice, it will not be so. Rome, Italy Roberto Zaccaria Professor of Public Law, former Chairman of the RAI ACKNOWLEDGEMENTS The Book and Author wish to thank colleagues Sarah Keating, for her invaluable help in translating and revising many parts of this book, Carlo Ugo de Girolamo for his help in updating the data in Chapter 5 and Sabrina Ragone for her help in reviewing the legal terminology and more besides. Many thanks also to my editor Lucy Batrouney for assisting me in the preparation of the book and to one of my anonymous reviewers for giving me an idea for developing my research further. xi CONTENTS 1 Introduction 1 2 Models for the Study and Regulation of Broadcasting Systems 11 3 International and European Normative Framework 43 4 Constitutional Context and Legal Framework 65 5 The Organization of the Public Broadcasters 83 6 The Appointment Processes of the Management Bodies 115 7 Conclusions 143 xiii CHAPTER 1 Introduction Abstract This chapter introduces the context in which public service broadcasters are analysed today.