Law Section — Budapest’01

The liberalization of the broadcasting systems in Central and East European countries has been necessitated by both internal and external factors. Internally, the transformation of the state-controlled systems into democratic ones includes the creation of independent-from-governments media regimes. Indeed the public, weary of state control, has been very receptive of neo-liberal reform measures. From a purely economic standpoint, the backward broadcasting systems in CEE require fresh investments that only the private sector can provide. The international environment has also been conducive for the liberalization of television broadcasting. As the new democracies in CEE apply for European Union membership, they need to enforce the EU’s audiovisual policy. A central place in this policy is allocated to the liberal broadcasting model.

As this policy is applied in CEE countries, it deserves careful examination in regard to viewers’ information rights. To examine the liberal model from this standpoint involves the use of Habermas’s notion of the public sphere, adapted to transitional context to mean a diverse, pluralistic and multicultural information space. The study of the liberalization of broadcasting in two countries—the Czech Republic and Bulgaria—is meant to shed light on the role of emerging market vis-a-vis publicity, which has different dimensions than in the West. The market in CEE hides certain context-specific threats to publicity, related to weakness and the lack of credibility of new private players, their ties with the old nomenklatura, and finally the wide-spread corruption practices. Also, as political economists argue, the liberalization of CEE media is not carried out in a vacuum, but in an already structured global media market, dominated by few powerful media companies, which are horizontally and vertically-integrated. Hence, the emerging market in CEE context exhibits features that are typical of both the early and the late capitalist development, and respectively, it is both favorable and threatening to critical publicity in post-socialist societies.

The first part of the discussion contrasts the pattern of change in Bulgaria and in the Czech Republic, which reveals the harmful effects for publicity stemming from delayed liberalization in the first case and the hasty, under-regulated liberalization in the second. This section discusses the structural conditions, which make the emergence of the public sphere quite challenging, given global pressures and the type of the emerging market conditions locally. The second part of the paper explores EU audiovisual policy, and in particular the Television Without Frontier’s Directive (TVWF) as the regulatory blueprint for new CEE legislation, contemplating on the threats for viewers’ information rights stemming from the Directive. This part also examines the application of EU broadcasting policy and its mixed effects in Bulgaria and in the Czech Republic. The next section focuses on the European Commission’s Media programs, and the failure to address the needs of the East European programming industry. Overall, the analysis will try to evaluate the liberal broadcasting model, as well as internal and external factors that encourage or hamper the creation of an open, pluralistic and representative broadcasting systems in CEE. The paper concludes with critical analysis of the potential benefits and “threats” to the public sphere, related to the pursuit of the liberal EU audiovisual policy in CEE transitional context.

The genesis of my paper is based on the Universal Declaration of Human Rights articles 10 & 19 concerning the right to a fair trial and freedom of expression.

It is generally agreed that totalitarian governments rely on denial of public access to police, courts and court proceedings to help maintain control of their people.

What is not so generally acknowledged is that so-called “free societies” also face challenges in the implementation of justice and public confidence in justice systems.

To determine the proper relationship between the media and the courts it is important to understand some core values in a democratic state: the doctrine of separation of powers and the principle of judicial independence.

Yet, increasingly it seems governments, egged on by the increasingly more tabloid press, are prone to meddle in judicial affairs in ways which some believe challenge their very independence.

For instance, in Australia during the 1990’s the High Court overturned the doctrine of Terra Nullius that denied the existence of prior land ownership by Australia’s indigenous inhabitants.

This decision angered powerful vested interests who feared land rights claims by Aborigines would threaten the stewardship of their lands.

This led to furious assaults in the media by the conservative side of politics. In no particular order of merit the Court and the Justices were labeled “bogus”, guilty of “plunging Australia into the abyss,” purveyors of “intellectual dishonesty” etc.

According to at least one current member of the High Court the personal attacks on the Bench are a sign of the times.

Critics of the legal system often complain that judges are “unaccountable”. But that begs the question – to whom should they be accountable?

Some might say they should be accountable to us, the public. But this leads to the danger of the rule of law becoming hostage to public relations campaigns or majoritarian interests;the very antithesis of the rule of law.

According to Australian legal author, David Solomon, if the courts are in any sense inadequate, it is the duty of the media to say so; it is for the governments and judges to try to ensure that the courts deserve public confidence.