Licensing of broadcasting in the Council of Europe and the European Union

Neither the European Union nor the Council of Europe has specific rules on licensing of broadcasting. Nevertheless, some principles can be drawn from the various legal instruments dealing with broadcasting in these two organizations. The legal foundations are the freedom to provide services, currently to be found in Articles 49 et seqq. of the EC Treaty, for the European Union, and the right to freedom of expression of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), for the Council of Europe. In addition, both organizations have issued recommendations and resolutions, as well as directives and conventions, respectively. It should be kept in mind that the purposes of the EU and the CoE differ in that the former basically deals with economic cooperation, while the latter seeks the enforcement and enhancement of human rights.

In 1974, the Court of Justice of the European Communities (ECJ) held that broadcasting should be dealt with on the basis of the freedom to provide services. This meant, i.a., that the Member States could no longer claim that broadcasting was an exclusively public service which allowed no or only a limited amount of competition. The ECJ’s interpretation of the Treaty was reflected in Directive 89/552/EC (Television without Frontiers), adopted in 1989 and amended in 1997 (Directive 97/36/EC, amending Directive 89/552/EC). This directive imposes upon the Member States the duty to refrain from restricting the retransmission in their territory of programs broadcast from other Member States. In addition, the directive obliges the Member States to ensure that broadcasters under their jurisdiction comply with both the directive and their own laws. The underlying notion is that the programs broadcast in each Member State are acceptable to any other Member State.

Directive Television without Frontiers deals with such matters as advertising and the promotion of European works. The 1997 amendment added provisions on events of major importance, stating that such events (to be listed by the various Member States) should be made available for viewing by the general public, either by the public service stations or by generally accessible commercial stations. The directive does not contain hard-core rules prescribing the structure of broadcasting organizations or the content or the nature of the programs. Moreover, the directive does not contain sanctions, if Member States fail to comply with it. The only exception pertains to the protection of minors: Member States can restrict the retransmission of programs into their territory, if these programs affect minors in a harmful way.

At the time the EEC adopted Directive 89/552/EEC, the Member States of the Council of Europe concluded a treaty entitled Convention on Transfrontier Television. This convention by and large deals with the same topics as the directive. Although both organizations originally went their own way in drafting these legal instruments, they eventually cooperated. This resulted in the texts of the directive and the convention showing many similarities and even being almost identical in some respects. Consequently, several Member States of the EEC have refrained from ratifying the convention, because they were already bound by the directive.

The third sentence of Article 10, paragraph 1 ECHR states that broadcasting may be subject to licensing. The European Court of Human Rights has held that this sentence, like the remaining part of the first paragraph, is qualified by the restrictions imposed by paragraph 2. This means that, except when it comes to the purely technical and organizational aspects of broadcasting, rules on licensing of broadcasting, in order to meet the requirements of Article 10, have to be necessary in a democratic society in one or more of the interests listed in the second paragraph.

Often at issue in debates over broadcasting, as well as in the various recommendations and resolutions, is the extent to which public service broadcasting (PSB) should be given a preferential position over commercial broadcasting, which emerged since the 1980’s. The European Parliament has stressed the importance of PSB by stating that media policy should support PSB as a key element for the development of an information society (Resolution of October 1996 on the role of PSB in a multi-media society). The Council of the EU in its Resolution of 25 January 1999 took a somewhat more distant approach by saying that PSB has an important role as the provider of a wide range of programming, but that the Member States may provide funding for PSB only insofar as such funding does not affect the trading conditions and competition in the EU. The Council of Europe has expressed itself on media transparency (Recommendation R (94) 13 of 22 November 1994), on independence of PSB (Recommendation R (96) 10 of 9 September 1996), on media pluralism (Recommendation R (99) 1 of 19 January 1999), and on the establishment of independent regulatory authorities for the broadcasting sector (Recommendation Rec (2000) 23 of 23 December 2000).

The aspects dealt with by the Council of Europe can be considered crucial to a discussion on guidelines for licensing of broadcasting, not only because Russia is a member of the CoE, but also because of their importance as such. What principles can be inferred from the various legal instruments mentioned above?

Crucial to any broadcasting system is its independence from the state, whether directly or indirectly. Not only should editors be independent, but also the boards of management of PSB organizations. Neither they nor their supervisory boards should be at the risk of political or other interference. Furthermore, there should be a transparent framework for funding which guarantees the PSB organization the means necessary to accomplish its functions. Editorial independence implies that news programs should be allowed (and obliged) to fairly present facts and should encourage the free formation of opinions. The use of broadcast time for official announcements should be confined to exceptional circumstances and such announcements should be clearly defined as such.

The existence of PSB organizations generally requires the formation of a regulatory authority overseeing their activities and verifying whether they comply with the law. Such a regulatory authority should be an agency which is independent from political and government influences, in particular with respect to content and financing. The law should clearly state that the regulatory authority is independent and should contain provisions enabling it to fulfil its functions in an effective and a transparent manner.

Should the regulatory authority be given the power to issue licenses, then the rules concerning licensing should be clearly defined in the law and the authority should be given the mandate to apply these rules in an open, transparent and impartial manner. This applies no matter whether licenses are allocated by way of auction, on the basis of a so-called beauty contest or with the use of yet another method.

Regulatory authorities should be accountable to the public (for instance, to parliament) for the performance of their functions.

Organizations applying for broadcasting licenses should provide all relevant information about themselves and their backgrounds and, if relevant, about those having control over them. Such information should be accessible to the public on an equitable and impartial basis. In order for this to be possible, the law should in a clear way provide the responsible authorities with the power to enforce media transparency.

Media pluralism should be guaranteed by creating legislation against concentrations of media organizations which might endanger media pluralism. The law should contain a clear definition of media pluralism. Furthermore, the law should contain rules ensuring a varied programming (especially for PSB) and a varied availability of TV stations on cable (for instance, by the enactment of so-called must-carry rules).

On the basis of the Council of Europe Convention on Transfrontier Television and the Directive Television without Frontiers, guidelines for licensing of broadcasting in addition to these four aspects should in a more specific way deal with the following elements:

The Convention obliges each Party to ensure that all terrestrial broadcasts from its territory and all broadcasts up-linked from a satellite established in it comply with the Convention. Furthermore, transmitting Parties are obliged to make available all relevant information about such broadcasters.

Parties to the Convention are obliged to ensure that programs shall not be indecent, shall not contain pornography and shall not give undue prominence to violence to be likely to incite racial hatred. Furthermore, programs have to scheduled in such a way that items which are likely to impair the development of children are not likely to be watched by children.

The Convention obliges Parties to ensure that every natural or legal person shall have the opportunity to exercise right of reply or to seek other comparable legal or administrative remedies.

Parties to the Convention are obliged to examine measures to avoid restricted public access to broadcasts of major events. (Under the - amended - Directive, the Member States of the EU have the obligation to provide the European Commission with a list of events of major importance, as they are called. In practice, such lists contain a number of important sporting events, as well as events of cultural and national importance.)

The Convention obliges the Parties to reserve a majority proportion of transmission time for informational, educational, cultural and entertainment programs for productions of European origin.

The Convention contains a long list of requirements imposed on the content, duration and frequency of advertisements. In addition, there are certain rules on the position of sponsors. The Parties to the Convention are obliged to prohibit advertisements directed at another Party circumventing that Party’s advertising rules (for instance, advertisements for children to countries which prohibit such advertisements).

Content:

Advertisements shall be fair and honest, they shall not be misleading, they shall avoid harming children’s interests. Advertisers shall not influence the content of programs.

Advertisements for tobacco products and for medicinal products available on prescription only are prohibited; the Convention contains limitations with regard to advertisements for alcohol.

Frequency and duration:

The total time for advertisements shall not exceed 15% of daily transmission time and shall not exceed 20% for spot advertising within one hour. Advertisements shall inserted between programs and during natural intervals only. If they are inserted in films, they may be broadcast only once per 45 minutes. Advertisements shall not be inserted in religious services.

Advertisements have to be clearly distinguishable as such and recognizably separate from other items. Prohibited are subliminal advertisements, surreptitious advertisements and advertisements with persons who regularly present news and current affairs programs.

Sponsors have to be clearly identified as such. They may not influence the content of programs in such a way as to affect the broadcaster’s responsibility and editorial independence. There may not be promotional references to the sale of the sponsor’s products or services. Sponsoring by companies selling tobacco products or medicinal products available on prescription only is prohibited, as well as sponsoring of news and current affairs programs.

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