IN THE EUROPEAN COURT OF HUMAN RIGHTS … · BETWEEN: INFORMATIONSVEREIN LENTIA AND OTHERS Applicants - and - ... aim pursued. Where a State has ... public monopoly is based on the

IN THE EUROPEAN COURT OF HUMAN RIGHTS

(Case Nos. 36\1992\381\455-459)

BETWEEN:

INFORMATIONSVEREIN LENTIA AND OTHERS

Applicants

- and -

REPUBLIC OF AUSTRIA

Respondent

WRITTEN COMMENTS SUBMITTED BY INTERIGHTS ANDARTICLE 19 PURSUANT TO RULE 37 OF THE RULES OF COURT

Anthony Lester QC Natalia Schiffrin Frances D'Souza2 Hare Court Legal Officer DirectorTemple INTERIGHTS Sandra ColiverLondon 5-15 Cromer Street Legal OfficerEC4Y 7BH London WC1H 8LS ARTICLE 19

90 Borough High StLondon SE1 ILL

11 May 1993

TABLE OF CONTENTS

I. INTRODUCTION............................................. 1

II. ARTICLE 10 ............................................... 5

III. CONSIDERATION OF STATE'S CASE............................ 8

IV. DECISIONS OF ITALIAN AND GERMAN COURTS................... 10

V. SELECTED LEGISLATION.................................... 14

Basic Information...................................... 14

Common Regulations..................................... 16

A. cross-media ownership............................... 16

B. limitation on licences.............................. 17

C. limitation on shareholdings......................... 18

D. licences for non-profits............................18

E. preferred programs..................................19

F. public broadcasting responsibilities................ 22

VI. CONCLUSION............................................... 23

I. INTRODUCTION

These written comments are submitted by INTERIGHTS, the

International Centre for the Legal Protection of Human Rights,

and ARTICLE 19, the International Centre Against Censorship,

pursuant to leave granted by the President, Judge Ryssdal, by

letter dated 29 March 1993, in accordance with Rule 37, paragraph

2 of the Rules of the Court.

INTERIGHTS is an international human rights law centre. It is a

registered charity, free of all ideologies and governments. It

focuses on providing legal representation in select cases before

international human rights fora, advising on legal rights and

remedies under international human rights law, and assisting

lawyers and non-governmental organisations in the preparation of

cases before international and regional tribunals.

ARTICLE 19. is also an international human.rights organisation and

a registered charity, independent :of all ideologies and

governments. It takes its name and mandate from the nineteenth

article of the Universal Declaration of Human Rights which

proclaims the right to freedom of expression, including the right

to receive and impart information and ideas. ARTICLE 19 seeks to

develop and strengthen the international standards which protect

freedom of expression by, among other methods, assisting lawyers

involved in litigation before national and international courts,

convening consultations of experts on free speech issues, and

making submissions to international tribunals.

At issue in this case is whether the public broadcasting monopoly

maintained by the Austrian Government is compatible with the

protection of free expression guaranteed by Article 10. These

comments specifically address the question of whether a public

broadcasting monopoly is necessary to achieve Austria's stated

goal and whether Austria's chosen method is proportionate to the

aim pursued.

Where a State has interfered with the right to free expression

protected by Article 10(1) (here by maintaining a public

broadcast monopoly), the burden of proof is upon that State to

show that the interference is prescribed by law, that it is

pursuant to a legitimate aim set forth in Article 10(2) , and that

it is "necessary in a democratic society".

Whether this interference is prescribed by law is not addressed

in these comments. Likewise, the legitimacy of Austria's stated

aim is recognized. Diversity and pluralism should necessarily be

the aim of any broadcasting regulatory structure for radio1 and

1 Pluralism and diversity in broadcasting is unquestionablya widely supported and sought after goal in Western Europe. Seefor instance the declaration adopted by the Committee ofMinisters of the Council of Europe in 1982, in which memberstates declared that one of their objectives "in the field ofinformation and mass media" was to achieve "the existence of awide variety of independent and autonomous media, permitting thereflection of diversity of ideas and opinions..." (Declarationon the Freedom of Expression and Information, Adopted by theCommittee of Ministers on 29 April 1982, reprinted in Council ofEurope D-MM (91) 1, operative para. II.d. See also the 1990Council of Europe's Parliamentary Assembly Opinion on private,non-commercial local radio in Europe, noting that "safetymechanisms should be set up to enable local radio stations tomaintain or create areas of communication guaranteeing democraticforms of expression, cultural diversity, independence andprofessionalism...." and outlining a series of recommendations

television2 alike. At issue here is only the mechanisms with

which the desired pluralism and diversity are achieved. Freedom

of expression and information is an essential element of

democracy, and the right of access to modern means - of

communication is an inherent part of the guarantee of free

expression. It is respectfully submitted that freedom of

expression is best protected in a broadcasting system in which

a wide variety of independent and autonomous media exist,

alongside a public broadcasting system, permitting the expression

of diverse opinions and ideas, free from the unnecessary control

of public monopoly.

These comments focus solely on the question of whether the public

monopoly, (the "interference"), is "necessary in a democratic

society", and then only to the extent that the interference

complained of is proportionate to the aim pursued.

Proportionality is addressed in these comments in light of the

practice of other Contracting States.

The Respondent Government's stated purpose in maintaining a

providing for such mechanisms. (Opinion, 23 November 1990,ADOC6344. See also Report on the Situation of Local Radio inEurope, 12 December 1990, ADOC6343).

2 See also the preamble to the Council of EuropeTransfrentier Television Convention, affirming "the importanceof broadcasting for the development of culture and the freeformation of opinions in conditions safeguarding pluralism andequality of opportunity among all democratic groups and politicalparties" and stating the conviction that "the continuousdevelopment of information and communication technology shouldserve to further the right, regardless of frontiers, to express,to seek, to receive and to impart information and ideas, whatevertheir source."

public monopoly is based on the principles of objective

reporting, plurality of opinions and independence of journalists

(Report of the Commission, paragraph 58) . The Government asserts,

inter alia, that the interference is "necessary" because, owing

to the comparatively small market in Austria, it would not be

economically viable to maintain several broadcasting stations,

and since there could only be a limited number of stations, it

is unavoidable that they be regulated to ensure independence and

objectivity (paragraph 77) . The Government also refers to the

possible economic difficulties and the emergence of new

monopolies in a system that allows for private broadcasting

(paragraph 83).

In contrast, the Applicants assert, inter aliaf that there is no

pressing social need to maintain the broadcast monopoly, which

is therefore not necessary in a democratic society. In their

view, regulation of the audiovisual media should be limited to

its technical aspects, and a monopoly is unnecessary to ensure

balanced programming. The Applicants argue that balanced

programming can be achieved through competition between several

broadcasting enterprises. Further, the Applicants assert that the

monopoly does not really enable a free flow of information and

opinions (paragraph 76).

In its Report, the Commission noted that "different solutions"

have been adopted in Convention States with regard to

broadcasting. The Commission stated that it could not therefore

assume that private broadcasting would necessarily bring about

the difficulties indicated by the Government, and hence, the

interference at issue could not be considered "necessary in a

democratic society" (paragraph 86).

The present comments respectfully draw the Court's attention to

the different systems adopted by other Contracting States. They

refer to decisions by the Italian and German Constitutional

Courts in this area (Section IV) , because those Courts have ruled

upon important questions concerning private access to

broadcasting facilities. Also summarized are the laws governing

diversity and pluralism in the broadcasting systems of five

European countries of roughly comparable size to Austria, in

terms of population (Section V). These comments conclude that in

light of the many different solutions adopted by Convention

States to protect pluralism in mixed public/private broadcasting

systems, a public monopoly cannot be considered "necessary in a

democratic society."

II. THE SCOPE OF ARTICLE 10

The right of free expression, guaranteed by Article 10, extends

to all types of expression which impart or convey opinions,

ideas, or information. The guarantee of free speech protects

everyone, including legal persons such as profit-making corporate

bodies.3 It applies not just to the content of the

communication, but also to "the manner of conveying information

3 Autronic AG Case. Judgment of 22 May 1990, Series A No.178, paragraph 47.

to the public"4 and to the means of transmission or reception.

As the Court noted in Autronic AG Case, "any restriction imposed

on the means [of transmission] necessarily interferes with the

right to receive and impart information."5

While the third sentence of Article 10(1) says that Article 10

"shall not prevent States from requiring the licensing of

broadcasting, television or cinema enterprises", the licensing

of broadcasting, like any other State interference with freedom

of expression, has to satisfy the criteria contained in Article

10(2). As the Court observed in Groppera Radio AG and Others.6

the purpose of the third sentence is

"to make it clear that States are permitted to controlby a licensing system the way in which broadcasting isorganised in their territories, particularly in itstechnical aspects. It does not, however, provide thatlicensing measures shall not otherwise be subject tothe requirements of paragraph 2, for that would leadto a result contrary to the object and purpose ofArticle 10 taken as a whole."

The licensing system at issue here, then, is clearly subject to

the Article 10(2) requirement that it be "necessary in a

democratic society." Contracting States enjoy a certain margin

of appreciation in assessing whether and to what extent an

interference is necessary, but nonetheless, in exercising its

4 Hodason and Channel Four TV v. The UK. 51 D & R 136, 144(1987) finding an "interference" with the Applicants' freeexpression rights, where the Respondent Government sought tocontrol the manner in which a news report was broadcast, byenjoining a televised re-enactment of court proceedings.

5 Autronic at paragraph 47.6 Judgment of 28 March 1990, Series A, No. 173, paragraph

61.

supervisory role, the Court must ascertain whether the measures

taken are justifiable and proportionate.7

"Proportionality" is discussed here in light of the practices of

other Contracting States. Absolute uniformity is not required8,

but nonetheless, "...the Court cannot but be influenced by the

developments and commonly accepted standards in the...policy of

the Member States of the Council of Europe" in the relevant

field,9 especially when the practices of the Respondent State

are particularly restrictive.10

Until the instant case, the Commission had left open the question

of whether the licensing provision contained in the third

sentence of Article 10(1) excludes or permits a public television

monopoly.11 It is respectfully submitted here that in light of

the practices of other Contracting States, discussed infra. a

public broadcasting monopoly cannot be considered proportionate

to the aim pursued.

7 Groppera at paragraph 72.8 The Sunday Times Case, Judgment of 26 April 1979, Series

A. No. 30, paragraph 61.9 Tyrer v. United Kingdom, Judgment of the Court of 25 April

1978, 2 E.H.R.R. 1 paragraph 31.10 See De Becker, Report of the Commission, 8th January

1960, at paragraph 263, stating that sanctions and preventivemeasures of an unusual kind, impinging upon free expression, mustbe considered with "special care".

11 Saachi v. Italy. 5 D & R 43, 50 (1976) ; X Association v.Sweden, 28 D & R 204, 205 (1982).

III. CONSIDERATION OF THE STATE'S CASE

Austria is the only country is Western Europe that maintains a

complete public broadcasting monopoly. The Respondent Government

seeks to justify its public broadcasting monopoly on the grounds

that such a monopoly is "necessary" to ensure well-balanced,

objective and pluralistic programming. It likewise maintains that

such a monopoly is "necessary" to protect against undesirable

concentration and abuse of media power. However, as the review

in section V, infra," of laws and regulations in other European

countries shows, such a monopoly cannot be considered

"necessary", for other countries adequately address Austria's

stated aims without resort to a public monopoly.

While the Respondent further seeks to justify its monopoly on the

ground that private commercial radio would compete with

newspapers and the public broadcasting system for scarce

advertising (paragraph 77), this argument loses force when the

experience of other countries is examined. Countries with less

available capital than Austria, for example Portugal, have been

able to support robust newspapers as well as local commercial

radio and television stations that all receive revenue from

advertising.12 Furthermore, as is the standard practice in

other Western European countries, Austria would be free to impose

12 Portugal maintains two national television channels, fivenational radio channels, several hundred local radio channels andnumerous local and national daily and weekly newspapers. Afterthe recent end of the RTF! television monopoly, two privatestations were established. Television has a 44% share of theadvertising market, the press has a 37% share, radio has an 11%share and outdoor advertising has the remaining 8%. See "TheMedia in Western Europe" at 190-191, Euromedia Research Group,London 1992.

8

reasonable limits on the amount of advertising private

broadcasting is permitted to take, thereby protecting the

advertising revenue earned by public sector broadcasting.

The Respondent also claims (at page 38) that the inclusion of the

provision in Article 10(1) that States are not prevented from

requiring the licensing of broadcasting, television or cinema

enterprises shows that broadcasting and television are of

"special political importance" in a democratic society, and may

be treated differently from the print media to which other

criteria apply. It is respectfully submitted that the Respondent

State is in error. Radio and television are of no greater

political importance than the press. The licensing provision of

Article 10(1) is merely a recognition of the need to maintain

public order among the airwaves, a need which, owing to advances

in technology, has been greatly reduced since the Convention was

signed. Thus, broadcasting may not be treated differently except

as necessary to maintain order of the airwaves. Clearly, order

may be adequately maintained in a mixed public/private system.

Further, the Respondent Government argues that the broadcasting

media "serve the community as a whole and therefore require to

be regulated by the State in a manner which ensures that the

public is being informed objectively and impartially through

balanced programmes." (At page 38). Again, the broadcast media

cannot be distinguished from the print media in this manner,

because the latter likewise "serves the community as a

whole".13 Moreover, Article 10 does not "require" that all

programmes be objective, impartial, and balanced; what the

Government is required to ensure is pluralism in the broadcasting

system generally, by giving access to different voices. Private

channels may also be subject to these balanced programming rules,

albeit in a weaker form than those imposed upon the public

sector. Private broadcasting, therefore, must fairly be seen as

contributing to pluralism, because the private sector adds to the

range of voices heard on the airwaves. The audience is then free

to make its choices.

IV. DECISIONS OF THE ITALIAN AND GERMAN CONSTITUTIONAL COURTS14

The Constitutional Courts of Italy and Germany have ruled in a

number of important cases on the relationship between public and

private broadcasting systems. In Italy, the Court has struck down

a public broadcasting monopoly at the local level, while in

Germany the Court has recognized the importance of a co-existing

public/private broadcasting system.

13 It is ironic to note that in contrast to its broadcastingpolicies, Austria has left its print media virtually unregulated.One survey found that there was greater concentration in theprint media in Austria than in any other country in Europe, SeeBerka, Walter "Press Law in Austria" Press Law and Practice,Article 19, London 1993.

14 This discussion is derived from Eric Barendt, (GoodmanProfessor of Media Law, University College, London), "TheInfluence of the German and Italian Constitutional Courts ontheir National Broadcasting Systems", Public Law (Spring, 1991)pp. 93-115.

10

The Italian Constitutional Court ruled in I96015 and then again

in 197416 that a State broadcasting monopoly was not

unconstitutional, in light of the limited availability of

frequencies. The Court said that because broadcasting is an

essential public service in a modern democracy, with the capacity

to inform all citizens in a direct an immediate way, broadcasting

could be reserved for a public authority, provided that all

significant social and political groups had access to

broadcasting facilities. However, in 1976 the Court ruled that

the State monopoly could not be upheld at the local level.17

While reaffirming the public monopoly at the national level, the

Court held that the arguments underlying a public monopoly did

not apply at the local level, and that such a monopoly conflicted

with the rights of freedom of expression and economic initiative.

The Court found that the number of available frequencies and the

relatively low economic costs of setting up a radio or television

station ruled out the risk of local monopolies or oligopolies.

Earlier, the Court likewise held that it was unlawful for the

State to maintain a monopoly in relation to cable television at

the local level18. In this context the shortage of frequencies

was irrelevant, and further, there was no danger, in the Court's

15 Decision 59/60 [1960] Giurisprudenza constituzionale 759.16 Decision 225/1974 [1974] Giurisprudenza constituzionale

1775.17 Decision 202/1976, [1976] Giurisprudenza constituzionale

1276.18 Decision 226/1974, [1974] Giurisprudenza constituzionale

1791.

11

opinion, of private monopoly or oligopoly.

In Germany, the Constitutional Court has recognized the

complementary roles the public and private broadcasting systems

play. In the Fourth Television19 case, when ruling on the

constitutionality of a private broadcasting statute, the Court

stated some key general principles. It emphasised the role of the

media in providing information for its citizens and so

contributing to the workings of democracy. These fundamental

responsibilities are to be discharged by the public broadcasting

authorities, which are required to show a comprehensive range of

balanced and impartial programmes, as well as provide a full and

accurate news service. Public broadcasting must be adequately

financed to enable it to do this satisfactorily. Provided that

these requirements are met, private broadcasters can be allowed

to operate under less restrictive obligations. In particular,

private operators need not be required to show a comprehensive

range of programmes; specialist channels may be allowed. The

presentation of a balance of opinion can also be less strictly

observed, though some such standards must still be in place, as

well as the requirement of the broadcasting of minority views.

Legislation must ensure that these requirements are met, and that

a channel is not exploited to purvey a particular editorial line.

The Court recognised that private broadcasters are dependent on

advertising revenue, and so to impose on them the same programme

obligations as public broadcasting might make their activity

19 73 BVerfGE 118 (1986).

12

commercially unfeasible. The State is therefore free to impose

the same obligations on private broadcasters only if the

imposition of such standards would not endanger the survival of

the private broadcasters.

The Court emphasised that the lower standards required of private

broadcasters are only permissible because public broadcasters

provide the basic service. The Court thus viewed public and

private systems as~ performing complementary, rather than

competitive, functions. Public broadcasters have a fundamental

responsibility to inform and educate. While private broadcasters

need not meet such high standards, their relative freedom is

allowed only because public broadcasting exists to discharge the

fundamental responsibilities of broadcasters in a modern

democracy.

In Italy and Germany then, the Courts have upheld the provision

by law of opportunities for private broadcasters. In Italy, the

Constitutional Court has further held that a public broadcasting

monopoly at the local level is not maintainable, while the German

Constitutional Court has recognized the complementary roles of

public and private systems. The careful scrutiny paid by the

Italian and German Constitutional Courts to the appropriate roles

of public and private broadcasting thus illustrates how in these

countries, important Constitutional recognition has been given

to private broadcasting.

13

V. LEGISLATION IN SELECTED EUROPEAN COUNTRIES20

With the growth of the private sector in broadcasting, many

European countries have adopted laws and regulations designed to

guarantee pluralism and prevent abuse of a dominant position, by

regulating concentration of media ownership and by requiring

diversity in programme content. Such rules variously limit cross-

media ownership, limit the number of licences that may be

allocated to one group or person, limit the amount of shares a

group or person may hold in one broadcasting company and require

public and often private broadcasters to allocate time to news,

information, cultural and/or educational programmes.

Basic Information Regarding the Countries Examined

A brief summary below illustrates the various types of rules to

which broadcasters are subject in five Western European

countries. The countries, Belgium,21 Denmark,22 the

o o^u This review is largely derived from the Commission of theEuropean Communities Green Paper "Pluralism and MediaConcentration in the Internal Market", and its Annex, "RulesGoverning Media Concentration in the Member States of theCommunity" (hereinafter "Green Paper Annex"), Brussels, 23December 1992. .See also Shaughnessy and Fuente Cobo, "TheCultural Obligations of Broadcasting", The European Institute forthe Media, 1990.

21 In the French-speaking community of Belgium, the legalbasis for private broadcasting is the Decree of 17 July 1987,amended by the decree of 19 July 1991. The public broadcastingmonopoly in the Flemish community was abolished in the 1980's,and replaced by a dual public/private system. Privatebroadcasting in television is regulated by the Decree of 28January 1987, and in radio by the Decree of 7 November 1990. [Itshould be noted that private radio exists only on a local basisin Flemish-speaking Belgium]. The Decree of 23 October 1991regulates the regional television organisations in the Flemishcommunity. On the basis of this decree, 11 private regional TVorganisations can operate with a licence from the Flemishgovernment.

14

Netherlands,23 Portugal24 and Switzerland25 were selected

because they are mostly of comparable size to Austria. This is

of importance because the Respondent State justifies its monopoly

in part on the basis of its "comparatively small" market "in

which it would not be possible to operate many small radio

stations on a viable economic basis."26 As of 1991, the

countries concerned have approximate populations as follows:

Austria 7.6 million, Belgium 9.9 million (5.7 in the Flemish

region and 3.1 in the French-speaking region), Denmark 5.1

million, the Netherlands 15 million, Portugal 10.4 million and

Switzerland 6.7 million (Switzerland is approximately 73.5%

German-speaking, 20.1% French-speaking, 4.5% Italian-speaking and

0.9% Romansch-speaking) . All maintain numerous local and national

television and radio stations, variously run by public, private

commercial and private non-profit corporations.27

22 private broadcasting at the local level is provided forin Denmark by legislation enacted in 1985.

23 The current broadcasting framework in the Netherlands wasestablished by the Media Law of April 1987, as amended by Law no.769 of 18 December 1991.

24 In 1975, the year after the military coup in Portugal,all broadcast services were nationalised and concentrated instate hands. The 1976 Constitution gave formal approval to thepublic dominance in broadcasting, which lasted until 1989, whennew Articles of the Constitution allowed the establishment ofprivate broadcasting, see Law no. 58 of 1990.

25 The organization of radio and television in Switzerlandis based on Article 55a of the federal constitution.

26 Report of the Commission at para 77.27 See Europa World Yearbook, Volumes I and II, London 1990

and The Media in Western Europe, Euromedia Research Group, London1992.

15

Common Regulations

A. Cross-Media Ownership

French-speaking Belgium, Denmark, the Netherlands and Portugal

all have laws which limit cross-media ownership. In French-

speaking Belgium, a person who holds more than 24 per cent of the

capital of a private television channel may not hold more than

a 24 per cent share of the capital in more than five private• 2 Rradio stations. °

In Denmark, no specific media ownership restrictions are

contained in the legislation governing private broadcasting, but

the award of a broadcast licence to a company in which newspaper

interests predominate is conditioned on the broadcast station

operating so as to "provide a forum for broad local debate.l|29

In the Netherlands the new broadcasting Act limits the percentage

of holdings allowed simultaneously in both broadcasting companies

and the print media.30 Owners and operators of Dutch cable

networks are prohibited from owning or participating in the new

private television licences. The new legislation also prohibits

private associations which already hold a broadcast licence under

the system from participating in private radio and television

ventures.

28 Article 21 of the Decree of 17 July 1987 as amended bythe Decree of 19 July 1991.

29 See "Green Paper Annex" at 17.30 Article 71 of the law of 21.4.1987 as introduced by the

law of 18.12.1991.

16

In Portugal, no specific restrictions on the ownership of

interests in different media exist, but Article 38 of its

Constitution specifically addresses pluralism in broadcasting,

and to that end provides for "specialisation", which means that

enterprises investing in mass media must limit their involvement

in other potentially conflicting sectors. In practice,

substantial cross ownership is limited by various relevant

restrictions.3 ̂

B. Limitation of Number of Licences Held by a Single Entity

Various countries have taken steps to prevent excessive

concentration of ownership of a radio or television market by

limiting the number of licences that may be allocated to one

person or group. For example, in Flemish-speaking Belgium,

private television corporations may only operate one regional

channel,32 while in Denmark, licence holders are required to

carry out their activities in an "independent" fashion without

collaborating on a long-term basis with other licensees.33

In Portugal, there is no express prohibition on holding multiple

radio licences, though lack of such holdings will be considered

a positive factor in awarding licences.34 There is also no

express prohibition on holding multiple licences in television;

31 For example, Article 9 of the 1990 television lawrequires applicant companies to have as their sole object theprovision of "television activities."

32 Article 4(4) of the Decree of 23 October 1991.33 See "Green Paper Annex" at 17.34 Article 7 of Decree-Law no. 338 of 1988.

17

instead, emphasis is placed upon the quality and range of

programmes proposed by the licence applicant. Licences are

granted to companies whose proposals appear to be most in the

public 'interest'.3 5

C. Limitations on Shareholdings

A few countries limit the amount of shares a person or group may

hold in broadcasting companies. For instance, in French-speaking

Belgium, the number of companies in which an individual may have

holdings is limited,36 while Portuguese law prohibits

individuals or companies from holding shares in more than one

private radio or television company. Portugal also limits the

percentage of capital that may be held in any one radio or

television company to 30 percent and 25 percent respectively.37

D. Licences for Non-Profit Associations

A few countries only grant licences to non-profit making

associations. In the Flemish part of Belgium, for instance,

private regional television corporations must be in the form of

non-profit making associations,38 and must have as their sole

object the provision of regional television broadcasts.39 They

must be independent of any political or trade union grouping and

35 Law no. 58 of 1990.36 Article 32 of the Decree of 17 July as amended.37 See Articles 2.5 and 2.7 of the 1988 Decree-Law no. 338.38 Article 4(1) of the Decree of 23 October 1991.39 Article 4(3) of the Decree of 23 October 1991.

18

of any commercial organization.40 This issue is addressed more

loosely in Denmark, where the law simply provides that commercial

entities41 are not allowed to have "decisive influence" in

local radio and television organisations.42

In Switzerland, the Swiss broadcasting company SSR (Societe

Suisse de Radio Diffusion), is a non-profit private company,

organized as an association. It performs its duties on the basis

of a licence granted^to it by the federal government.

E. Preferred Programmes

Most countries require or give priority to licence applicants who

are committed to provide certain types of educational, cultural

and informational programmes. For example, in French-speaking

Belgium, in order to secure authorization, a private radio

station must be devoted to advancing culture, providing

continuing education, providing news and information, to playing

a part in local activities, to providing entertainment or

providing services to the public.43 Its programmes must give

a proper place to the cultural heritage and to the artists from

the French-speaking community, and from the member states of the

European Communities.44 Private television channels must

likewise give a proper place to the cultural heritage of the

40 Article 4(5) of the Decree of 23 October 1991.41 National and local television publishers are exceptions.42 See "Green Paper Annex" at 18.43 Article 31(2) of the Decree of 17 July as amended.44 Article 31(6) of the Decree of 17 July as Amended.

19

French-speaking community,45 and must entertain collaborative

relationships with a view to the maintenance and development of

pluralism in the press in the French-speaking community.46

In Belgium, legislation also provides that private television

corporations broadcasting to the Flemish community must broadcast

a variety of information, education and entertainment,47 or

social and cultural programmes48, depending upon whether the

entire Flemish community is broadcast to, or a section of the

public within it. Private television corporations must provide

news and information broadcasts that comply with the customary

standards of ethics in journalism, and editorial impartiality and

independence must be ensured.49

Few requirements concerning programme content are set down in the

primary licensing legislation in Denmark, but those seeking a

radio or television licence are required to describe their

projected programme activity so that adequate connection to the

local area can be ensured, as well as the maintenance of a

"comprehensive" range of programmes.50 TV2, the independent

national television broadcaster, is required to broadcast news,

45 Article 16(4) of the Decree of 17 July as amended.46 Article 16(9) of the Decree of 17 July as Amended.47 Articles 9 and 10 of the Decree of the 28 January 1987,48 Article 5(1) of the Decree of 11 May 1988.!49 Article 4(9) of the Decree of 23 October 1991.50 See "Green Paper Annex" at 21.

20

information, entertainment and cultural programmes, having regard

for diversity and pluralism.51

In Portugal, a preferential factor for applicants for private

radio licences is a major allocation of time to cultural,

educational and informational programmes.52 More rigorous

programme requirements have been set out for private television.

Licences are awarded to the applicant whose projected service

appears to be most in the public interest, taking into

consideration the time it proposes to allocate for cultural,

fictional and informational programmes, together with the

applicants capacity to satisfy public diversity of tastes.

Television broadcasters are required to transmit regular news

services performed by professional journalists.53

In Switzerland, the Societe Suisse de Radio Diffusion, is obliged

to broadcast at least one television and three radio services for

each of the different linguistic regions in the country.

According to its licence requirements, SSR's programmes as a

whole must "defend and develop the cultural values of the

country, contribute to the intellectual, moral, religious, civic

and artistic education of the public, contribute to the free

formation of opinions." Programming must also satisfy

entertainment needs, and news reporting must be accurate and

51 Article 3(2) of Decree no. 75 of February 1990.52 Article 7.3.C of Decree-Law no. 338 of 1988.53 Article 23 of Decree-Law no. 338 of 1988.

21

balanced.54

F. Public Broadcasting Responsibilities

In most countries, the public broadcasting company retains

primary responsibility for ensuring objectivity in news coverage

and the broadcast of a diversity of programmes. For example,

Danmarks Radio, the established public service broadcaster, is

required to broadcast news, information, entertainment and

cultural programmes. Freedom of information and expression are

of paramount importance in programme planning, and diversity,

pluralism and quality are to be strived for. Objectivity and

impartiality is of importance in news programming.^

Similarly, in the Netherlands, public service broadcasters are

obliged to provide programmes concerning culture, information,

education and entertainment.56 In Portugal, RTF (Radiotelevisao

Portuguesa), as the established public broadcaster, has

traditionally been subjected to public service obligations

concerning both the broadcast of a wide range of programmes and

the promotion of national culture. RTP is also required under the

1990 Television Act to allow access time to certain social

organisations, and to give preferential terms to educational

television. Time is allotted to religious bodies (Article 25) and

54 See "The Media in Western Europe" at 227-228, EuromediaResearch Group, London 1992.

55 See Article 3 of Decree no 148 of 6 March 1989 concerningthe statutes of Danmarks Radio, and Article 3(2) of Decree no 75of 5 February 1990 concerning the statutes of TV2.

56 Article 50 of the law of 21.4.1987 as amended by the lawof 13.12.1990 and the law of 18.12.1991

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political parties, trade unions, professional and economic

organisations can also claim a share of available airtime

(Article 32).

VI. CONCLUSION

As this summary of national legislation and judicial decisions

shows, there are many ways in which countries can adequately

guarantee diversity and pluralism in broadcasting with measures

short of complete prohibition of private broadcasting. Indeed,

private broadcasting is most appropriately viewed in the context

of mixed public/private systems. Private broadcasting represents

the freedom to broadcast something other than what the public

monopoly broadcasts; it does not, and should not, replace public

sector broadcasting. Carefully regulated, as it is in the

countries reviewed, private broadcasting should been seen as an

important contributor to pluralism, because it gives a range of

disparate voices access to the airwaves. With advances in

technology increasing the amount of frequencies available, it is

unnecessary to preclude private broadcasters from gaining access

to the airwaves alongside public sector broadcasting.

In sum, consideration of the practices of other European

countries shows that pluralism and diversity may be effectively

provided for by a number of different regulatory structures, all

found within mixed private/public systems. As such, a public

monopoly cannot be considered "necessary in a democratic society"

and is therefore incompatible with the free expression guarantees

of Article 10 of the European Convention of Human Rights.

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Anthony Lester QC Natalia Schiffrin Frances D'Souza2 Hare Court Legal Officer DirectorTemple INTERIGHTS Sandra ColiverLondon 5-15 Cromer Street Legal OfficerEC4Y 7BH London ARTICLE 19

WC1H 8LS 90 Borough High StLondon SE1 ILL

11 May 1993

INTERIGHTS and ARTICLE 19 wish to acknowledge the assistance ofEric Barendt, Goodman Professor of Media Law, University CollegeLondon.

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