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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
RECOMMENDATION No. R (94) 13
OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON MEASURES TO PROMOTE MEDIA TRANSPARENCY
(Adopted by the Committee of Ministers on 22 November 1994
at the 521st meeting of the Minister's Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is the achievement of greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage;
Recalling that media pluralism and diversity are essential for the functioning of a democratic society;
Recalling also that media concentrations at the national and international levels can have not only positive but also harmful effects on media pluralism and diversity which may justify action by governments;
Noting that the regulation of media concentrations presupposes that the competent services or authorities have information which enables them to know the reality of media ownership structures and, in addition, to identify third parties who might exercise an influence on their independence;
Stressing also that media transparency is necessary to enable members of the public to form an opinion on the value which they should give to the information, ideas and opinions disseminated by the media;
Recalling the media transparency provisions included in texts already adopted within the Council of Europe, in particular Article 6 of the European Convention on Transfrontier Television;
Believing that further provisions should be considered, in the light of the above-mentioned trends, so as to guarantee media transparency and allow exchanges of information between member states for this purpose;
Noting the need to safeguard the rights and legitimate interests of all parties subject to transparency obligations;
Taking account of work carried out within other fora, especially within the framework of the European Union,
Recommends that the governments of member states consider the inclusion in their domestic legislation of provisions intended to guarantee or promote media transparency as well as to facilitate exchanges of information between member states on this topic, drawing on the guidelines appended to this recommendation.
Appendix to Recommendation No. R (94) 13
I. General provisions on media transparency
Guideline No. 1: Access by the public to information on the media
Members of the public should have access on an equitable and impartial basis to certain basic information on the media so as to enable them to form an opinion on the value to be given to information, ideas and opinions disseminated by the media.
The communication of this information to members of the public by the media or by the services or authorities responsible for ensuring their transparency should be carried out in a way which respects the rights and legitimate interests of the persons or bodies subject to transparency requirements. Particular attention should be given to the need to reconcile the requirement of transparency with the principle of freedom of trade and industry as well as with the requirements of data protection, commercial secrecy, the confidentiality of the sources of information of the media and editorial secrecy.
Guideline No. 2: Exchange of information on media transparency between national authorities
The services or authorities appointed under national legislation to collect data on media transparency should be competent to communicate these data to similar services or authorities in other member states, subject to, and within the limits of, what is permitted under national legislation as well as under international agreements to which each state is party. Where appropriate, the communication of the data should be subject to the express or implied consent of the persons concerned. These possible restrictions should be specified in national legislation and systematically notified to the services or authorities to which the information is addressed.
The likely justifications for the communication of this information should be explicitly mentioned in the legislation and any request for access to it on the part of the services or authorities of other member states should specify the reasons for the request.
The provisions aimed at permitting the communication of information should be drawn up in a way which takes account of any possible regulations concerning the duty of discretion owed by the employees of the services or authorities concerned and the disclosure of information to foreign authorities. If necessary, the provisions should be adapted so as to make these exchanges of information possible.
II. Specific measures which may guarantee media transparency in the broadcasting sector
Guideline No. 3: Disclosure of information when granting broadcasting licences to broadcasting services
Transparency in regard to applications for the exploitation of broadcasting services may be guaranteed by including provisions in national legislation obliging applicants for the operation of a radio or television broadcasting service to provide the service or the authority empowered to authorise the operation of the service with information which is fairly wide-ranging in its scope and quite precise in its content.
The information which may be subject to disclosure may be schematically grouped into three categories:
- first category: information concerning the persons or bodies participating in the structure which is to operate the service and on the nature and the extent of the respective participation of these persons or bodies in the structure concerned;
- second category: information on the nature and the extent of the interests held by the above persons and bodies in other media or in media enterprises, even in other economic sectors;
- third category: information on other persons or bodies likely to exercise a significant influence on the programming policy of this service by the provision of certain kinds of resources, the nature of which should be clearly specified in the licensing procedures, to the service or to the persons or bodies involved in the latter's operations.
Guideline No. 4: Disclosure of information following the grant of broadcasting licences to broadcasting services
Transparency in the running of broadcasting services may be guaranteed by including in national legislation provisions requiring the persons or bodies operating a broadcasting service to provide the service or authority which authorised the operation of the service with information which will vary in its scope and detail.
The information which may be disclosed may be schematically divided into two main categories:
- information aimed at accounting for changes which have occurred in the course of the operation of the service vis-à-vis the three categories of data referred to above;
- information relating to other categories of data linked to the operation of the service, once the latter has started up.
Guideline No. 5: Exercise of the functions of the service or authorities responsible for ensuring transparency in the running of broadcasting services
The missions and powers of the services or authorities responsible for ensuring transparency in the running of broadcasting services should be clearly defined in national legislation. These services or authorities should have at their command the powers and means necessary to ensure the effective exercise of their tasks, while ensuring respect for the rights and legitimate interests of the persons or authorities required to disclose information. They ought to be able, where appropriate, to call on the assistance of other national authorities or services, as well as possibly the expertise of other persons or bodies.
The services or authorities to which the information communicated by the applicants for the operation of a broadcasting service is addressed, and the bodies managing these services, should have the possibility of submitting part of the information to certain sections of the public, given that consultation of the latter might be necessary for the exercise of their missions.
III. Guideline No. 6: Specific measures which may guarantee media transparency in the press sector
Transparency in the press sector may be guaranteed by including in national legislation provisions which require press undertakings to disclose a set of information which is more or less broad in its scope and precise in its content.
The information which may be subject to disclosure may be divided into five categories:
- first category: information concerning the identity of the persons or bodies participating in the publishing structure of a press undertaking, as well as the nature and the extent of the participation of these persons or bodies in the structure;
- second category: information on the interests held in other media by the publishing structure or the persons or bodies participating in the latter;
- third category: information concerning the persons or bodies, other than those directly involved in the publishing structure, who are likely to exercise a significant influence over the editorial line of the publications which they manage;
- fourth category: information on any statements of either editorial policy or political orientation of newspapers and publications;
- fifth category: information concerning the financial results of the publishing structure and the distribution of its publication(s).
* * *
1. Freedom of expression and information as well as the free circulation of information and ideas regardless of frontiers and without interference by public authorities are fundamental to any genuine democracy. Media pluralism, that is to say the existence of a plurality of independent and autonomous media reflecting the broadest possible diversity of opinions and ideas, is indispensable for the effective exercise of this freedom. Media transparency is a major condition for safeguarding and strengthening pluralism.
2. The current development of media concentration is likely to create difficulties for media transparency. The growing internationalisation of the capital and activities of firms in the media sector, the development of multimedia groups and the appearance in the media sector of new actors from other branches of economic activity, and the gradual integration of the media into much bigger entities covering the whole of the media production and distribution process from beginning to end, have a dual impact on media transparency. In the first instance, the ownership structures of the media and the indirect control/dependency relationship maintained through the capital of these media are becoming more complex. Furthermore, they open the way to situations of media dependency in relation to bodies which, while they are neither owners nor even shareholders in these media, are capable of exercising a significant and long-lasting influence over their activities, and possibly over the content of the information which they broadcast or disseminate, given that they supply them with financial resources, equipment or non-material resources (programmes) which are important, sometimes vital, to their activities.
3. This phenomenon, which is already noticeable in numerous European countries, is likely to gain momentum in the years to come with the development of new communications technologies which could encourage the trend towards integration (for example, digital technology) and the appearance in the media sector of new types of operators who command considerable financial resources (for example, telecommunications firms and the producers of electronic or data-processing equipment). Moreover, this phenomenon is likely to assume an increasingly pan-European dimension as the media sector opens up to the market economy in the central and eastern European countries.
4. This trend may give rise to a two-fold problem from the media transparency point of view. On the one hand, it makes it, or can make it, more difficult for the public to identify who are the owners of the media which they use and thus form an opinion on the value to be given to the information, opinions and ideas broadcast or disseminated by these media in the light of the identity and the motives of their owners and of those who may be behind them. On the other hand, this trend complicates the activities of the services or authorities responsible for implementing legislation in the media field, and especially legislation relating to the control of media concentrations. Such is the case, for example, of the services or authorities responsible for the granting of broadcasting licences for radio or television services.
5. The following guidelines are intended to offer the governments of the member states of the Council of Europe, as well as those of other European countries, specific solutions for guaranteeing and strengthening media transparency. These guidelines represent a range of regulatory measures on media transparency from which member states may choose those measures which they feel necessary and appropriate in the light of their own specific context. In so doing, member states should ensure that the measures which they adopt are necessary and proportionate to the goal of media transparency. They should also ensure that any such measures respect the rights and legitimate interests of those subject to transparency obligations. Member states should also take into account the specific characteristics of the different media when implementing the guidelines.
6. The purpose of the guidelines is not to impose a single set of rules aimed at guaranteeing media transparency but, rather, to suggest courses of action to governments which either do not have rules on transparency and would like to introduce such into national legislation, or which already have rules but would like to revise or supplement them. The freedom of choice left to governments is aimed at taking into consideration the diversity of the situations in the member states: the diversity of their constitutional structures and their spheres of competence at national level in the field of media regulation; the diversity of regulatory instruments and of distinctions at national level between provisions relating to competition law and provisions relating to media law; the diversity of rules in the area of company law which are linked to provisions on transparency; the diversity of rules with which transparency measures must be harmonised (rules relating to the freedom of trade and industry, data protection, commercial secrecy and the duty of discretion in the handling of information owed by the employees of the regulatory services or bodies, etc.). Nor is the aim of the guidelines to encourage public authorities to interfere with the content of the media or to encourage any form of control of the latter. Their sole aim is to enable the public and the services or authorities concerned to obtain the communication of data required for their information, while respecting the rules referred to above. It should be noted that in addition to legislative or regulatory provisions, the adoption of self-regulatory measures by media enterprises themselves may also constitute a means of promoting media transparency.
7. It should be stressed that the guidelines deal separately with the press and broadcasting sectors, given that the regulatory differences applicable to each sector do not allow for the implementation of transparency provisions under the same conditions. Thus, in contrast to the press sector, the broadcasting sector is characterised by the existence of procedures for granting licences which afford the authorities a privileged means of action for obtaining the disclosure of information. More detailed indications are given as regards the distinction to be made between these two sectors in the following commentaries. The guidelines also distinguish between information which can be disclosed to the services or authorities responsible for media regulation and information which can be communicated to the public either by the media themselves or possibly by the aforementioned services or authorities. The public's need for information concerning the media and their activities is situated at a general level, whereas the exercise of the functions of the services referred to may justify the disclosure of more detailed information which does not need to be made available to the public. In order to clarify the meaning of the guidelines, each provision is accompanied by explanations aimed at facilitating their understanding and application.
8. Over and above the provisions which may be taken at national level to guarantee media transparency, the guidelines also address the exchange of information on the media and their activities between the appropriate authorities in member states. The growing trend in internationalisation of the activities and the capital of firms in the media sector implies that the respective authorities in each member state, in carrying out their regulatory functions, can be led to require specific information about media established in other member states. This is particularly the case for services or entities entrusted with granting licences for either radio or television broadcasting, when they are faced with applications for licences from structures involving foreign shareholders or when, after granting a licence to a specific service, a foreign firm wishes to participate in the capital of the firm operating this service. These sort of exchanges of information may also be useful in cases where a broadcaster from a given country intends to broadcast programming windows to the viewing public of one or several countries which are specifically targeted. It is precisely with a view to answering these requirements for information exchange at the transnational level that the European Convention on Transfrontier Television, which came into force on 1 May 1993, included in its Article 6, on transparency, a procedure for the communication of information between Contracting Parties concerning transfrontier broadcasters under their jurisdiction. The guidelines are part of the extension of this provision, but cover a wider field since the exchanges which they recommend apply to all types of media.
9. The following comments on each of the guidelines should not be seen as binding. They are suggestions of the authors on how the guidelines might be implemented. Thus, the governments of the member states are free to follow or not follow these various suggestions depending for example on the role assumed by the different branches of law in the area of transparency (media law, company law, etc).
I. Comments on the guidelines on general provisions on media transparency
Guideline No. 1: Access by the public to information on the media
10. Members of the public should have the possibility of having access on an equitable and impartial basis to certain basic data on the media. Bearing in mind that the aim of transparency is, as far as the public is concerned, to know who are the owners of the media so as to be able to form an opinion as to the value of the information disseminated, the data relate first and foremost to the first category of information referred to for the press and broadcasting sectors. They should at least refer to the identity of those who manage the broadcasting service or press undertaking, and where these are operated by a legal person, to the identity of the parties who constitute this legal person. Nevertheless, given that the number of such parties may be very high, one possibility could be to restrict disclosure to the identity of the main partners.
11. Where appropriate, the disclosure to the public of other information might be envisaged (data on financial results or, as regards press undertakings, on their circulation figures). The consequences of communication of such information to third parties must be carefully considered, especially when the financial results of undertakings are negative ones (for example, the risk of advertisers losing confidence in particular publications which might worsen the financial difficulties of the undertaking in question).
12. As regards broadcasting services, this information could be communicated either by the services or authorities for which it is primarily intended, or directly by the broadcasting services concerned, by providing in the national legislation that they must make this information available to the public. The communication of certain basic information to the public could even be required in accordance with a given timeframe (for example, once a year). In any event, the communication of such basic information should occur when broadcasting services become operational and following any change in their ownership.
13. As regards press undertakings, the information which they will be required to disclose will have to be processed through special channels, in accordance with the branch of law specified in national legislation concerning the transparency requirement. These channels could either be administrative services (competent in the area of competition law, company law or media law) or independent authorities specially created for this purpose. The public may have access to certain basic information about press undertakings, either by applying to the services or authorities referred to above or by obtaining it directly from the publishing houses concerned. The most direct means of ensuring communication of this information to the public may be to provide in national legislation for the publication of these data in the newspapers, and so on, published by the company, in accordance with a time-frame which might vary depending on the information in question (for example, in each new edition for data concerning the identity of those responsible for the publishing structure, once a year as regards the publication of financial results). In any event, there should be a systematic communication of such information to the public when there is a change in ownership of a publication.
14. The communication of information to the public should be carried out with respect for the rights and legitimate interests of the persons or bodies required to disclose the information. In particular, communication should be carried out in a way which takes due account of freedom of trade and industry as well as of the requirements of commercial secrecy. Similarly, particular attention must be paid to data protection, as well as to the protection of editorial secrecy and the confidentiality of the sources of information of the media. Finally, the communication of information to third parties by the appropriate services or authorities must be carried out in a way which respects the principles of neutrality and impartiality of the services or authorities as well as the duty of professional secrecy/discretion owed by the employees of such services or authorities.
Guideline No. 2: Exchange of information on media transparency between national authorities
15. The internationalisation of the activities and capital of firms in the media sector gives rise to the fact that the services or authorities responsible for media transparency are increasingly faced with the involvement of foreign operators with whom they are less familiar, at least as far as some of these are concerned. If, in the broadcasting sector, the procedures for granting and monitoring licences are seen as a privileged means of obtaining more or less detailed information from foreign operators, it may prove useful to turn to the authorities in other countries, in particular to those in the country of the foreign operator, so as to supplement or check this information. The value of such information exchanges is even greater for the written press sector where, unlike the broadcasting sector, no licensing procedures exist. In order to provide for these exchanges on a clearly defined basis, the authorities of the member states should include in their national legislation provisions specifying the terms on which the exchanges can take place. To this end, they could base themselves on this guideline. It should be noted that the guideline addresses the most frequent case in Europe where the regulation of the press and broadcasting sectors comes within the competence of national authorities. The adaptation of this guideline may be necessary in the context of federal states where the regulatory power does not belong to the federal authorities.
16. The communication of data on the media to services or authorities in other countries by the national services or authorities which hold the information in accordance with transparency legislation should be situated, if necessary, in a clear legal, framework. This is in order to determine the conditions under which communication can be reconciled with the provisions of the national legislation, which may possibly impose restrictions on communication (rules dealing with the confidentiality of administrative acts, the protection of banking secrecy, commercial secrecy or editorial secrecy, etc.). The member states should also take into consideration the provisions of international agreements to which they are parties and which govern, inter alia, the communication and exchange of information at the international level. Particular reference may be made to the Council of Europe's Convention on the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108) and in particular Chapter III thereof which deals with transborder data flows, as well as the European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters (ETS No. 100). The communication of information should possibly be made subject to the express or tacit consent of the persons or authorities concerned by the information. The possible limits to the transfer of information to the services or authorities of other countries should be specified in legislation and notified to the aforementioned services or authorities when such restrictions become relevant.
17. Equally, so as to allow the exchanges to be as clear as possible for the benefit of all parties concerned, the justifications for the communication of information should be expressly set out in the legislation, and the foreign service or body wishing to obtain information should indicate, the justification(s) on which it relies. It should be stressed that these guidelines have been drawn up solely to enable services or authorities responsible for applying national legislation in the media sector to exercise their functions fully. The guidelines do not therefore concern requests for information which originate in other national administrations or authorities.
18. Finally, the enactment of provisions aimed at enabling the communication of information to foreign services or entities should pay particular attention to the rules which apply to the secrecy requirements governing the functions of the employees of the services or authorities required to communicate information. Similar consideration should be given to the general rules regulating and possibly sanctioning the disclosure of information to foreign authorities. The aim of this process should be to determine whether these rules and regulations prevent or restrict the disclosure of information, so as to allow them to be amended with a view to enabling the employees concerned to communicate this information.
II. Comments on guidelines on specific measures which may guarantee media transparency in the broadcasting sector
19. The guidelines on the broadcasting media may apply to both radio and television broadcasting, regardless of the means of access to them (free/fee-paying, uncoded/coded), the means of broadcasting (by terrestrial Hertzian waves, cable or satellite) and the area of coverage (national, regional or local). This being the case, their application can be modified in accordance with the special implications of specific characteristics of the broadcasting services from the media transparency point of view.
20. As indicated in the introduction, the procedures regulating granting broadcasting licences to broadcasting services constitute a particularly important means of obtaining the disclosure of information from the entities applying to operate services of this type. This information is first and foremost addressed to the services or authorities responsible for the decision to grant these licences. However, it is possible to consider that a part of this information could be made available to the public or to a section of the public either directly by the media concerned or through the intermediary of the services or authorities referred to above, in the context of the consultations which the latter undertake when considering applications for licences. However, transparency for broadcasting services only acquires real meaning if it extends beyond the point at which a broadcasting licence has been granted to cover the whole period during which these services function. It is possible, and in practice will happen, that information disclosed at the time the licence is granted will subsequently change. This will of course be the case in the event of a change in the distribution of the capital of a firm operating a broadcasting service. This could also be the case for information relating to third parties exercising an influence on these services, taking into consideration the fact that these types of influences are likely, a priori, to vary more easily and more frequently than the structure of the capital of a service. Thus, the guidelines deal separately with the disclosure of information before and after granting licences to broadcasting services. Where no such licensing procedures exist, transparency of broadcasting services can be achieved by including specific provisions in the legislation or regulations applicable to the broadcasting sector. Finally, the guidelines provide orientations for the performance of the functions of the services or authorities responsible for implementing transparency rules applicable to broadcasting services, as well as for the question of public access to the data disclosed under transparency rules.
21. One of the specific issues raised by the application of transparency rules to broadcasting services concerns the transposition of these rules to public service broadcasting organisations. In principle, the latter should not be subject to transparency rules which are less rigorous than those applied to other broadcasting services, taking account of the fact that the carrying out of public service missions by the public service broadcasters is normally accompanied by public funding. However, the procedures which may be used to ensure transparency of public service broadcasting organisations cannot be modelled on those applicable to other broadcasting organisations. Account must be taken of the provisions in national legislation which deal with the specificity of public service missions and their mechanisms of accountability, some of which correspond to some extent to the transparency aim: provisions concerning the representation of the public in the structures responsible for managing or supervising these services, special rules concerning budgetary and financial control, provisions on the presentation of their activity reports or accounts by public service broadcasting organisations, and so on. Reference should be made to the draft resolution on the future of public service broadcasting prepared by the group of specialists on public service broadcasting in the perspective of the 4th European Ministerial Conference on Mass Media Policy (Prague, December 1994).
22. Over and above monitoring their programming activities, one of the basic elements of transparency in public service broadcasting companies concerns their financial resources and results. This applies in the first instance to public service broadcasting organisations which are only partly financed by the licensing fee and which can therefore call on other financial resources (advertising, sponsorship, etc.). However, it may also apply to public service broadcasting organisations which are entirely financed by the licensing fee. It should indeed be noted that the latter, as is the case for the former, may be allowed to create specialised subsidiaries, even joint ventures with other bodies, in fields related to their broadcasting activities. In this respect, the indications set out below on the transparency of the financial relations of the broadcasting services whose operation is subject to the granting of a broadcasting licence (see paragraphs 35 and 36) can constitute a point of reference. Apart from the question of activities related to the main broadcasting activity, another pertinent aspect from the transparency point of view may concern the programming services set up by public broadcasters over and above the basic service which they are called on to offer the public: supplementary services created at their sole initiative or in co-operation with external partners. In this respect, as in the case referred to above, the rules set out above concerning services subject to licence can serve as a useful point of reference.
Guideline No. 3: Disclosure of information when granting broadcasting licences to broadcasting services
First category of information
23. The first category of information is aimed at obtaining a more or less complete and precise picture of the structure which would operate the service and of those who would be associated with the structure. The information relating to the identity of the persons or bodies (national or foreign) participating in the structure which would operate the service may include: their name if it involves a person, or the title if a legal person is involved (company, association), their address or their registered office, their nationality, their legal status (type of company or non-commercial entity: foundation, association), and their profession or social calling. It should be noted, as far as legal persons are concerned, that it may be relevant to request certain types of supplementary information. This information can refer to their management and statutory control authorities (for example, the composition of the board of management or control, the identity of the chairman or secretary general, etc.) and to their financial position (accounts, balance sheet, etc., for one or several preceding years), so as to obtain a more precise view of their structures and their activities.
24. As far as information referring to the nature and the extent of the shareholdings of persons or bodies in the structure which operates the service is concerned, it is intended to cover primarily the distribution of capital between shareholders when the entity is a commercial company. One element linked to the distribution of capital which may be taken into account concerns the voting rights linked to the shares. Voting rights may be variable and may influence the management of the service, over and above what may be suggested by the mere distribution of capital (shares with multiple voting rights).
25. Apart from the disclosure of the distribution of capital, one of the specific means for ensuring capital transparency might be to ensure that the shares of the companies applying to operate a broadcasting service are registered by name. The information could possibly also refer to other types of contributions made to the structure by the members who compose it (for example, contributions in kind in the form of the provision of personnel or technical means or in the form of services), in order to obtain a more precise view of the manner in which the structure will function. Over and above the distribution of shares in the capital of a company and the composition of its management structures, the balance between partners can be appreciably modified by the provision of non-financial contributions by some of them. For example, a partner who apparently plays a secondary role because he or she is only represented in the capital to a limited extent or in the management bodies of the future service will possibly in reality have a greater influence over this service than the above-mentioned indicators would suggest, given that the partner supplies the service with certain material (the supply of personnel and technical equipment) or immaterial (the supply of broadcasting programmes) key contributions. This point refers to the concept of a power of influence which is examined in greater detail in paragraphs 30 to 33.
26. In addition to shares giving an ownership share in the entity applying for the exploitation of a broadcasting service or already exploiting such a service, the transparency requirement may possibly be extended to persons who possess, by virtue of contracts or other rights, the power to orientate or manage or oversee the running of the structure. This requirement may apply not only to acts which bestow effective powers of this kind but also to acts which are intended to grant such powers in the future (for example, a promise to transfer the exploitation of the service).
Second category of information
27. This second category of information is aimed at enabling the services or authorities responsible for issuing broadcasting licences to estimate the extent to which either the entity operating the service or the members of this entity or even both are involved in other media, or in other media enterprises. The disclosure of this information may be deemed appropriate to guarantee media transparency vis-à-vis the development of cross-media ownership and multimedia concentration, as well as the internationalisation of the activities or media enterprises.
28. This transparency can vary in degree by requiring the disclosure of any interest held in other media, no matter in what form (financial or other) or extent, or of the sole interests enabling the exercise of influence over these other media. In the second case, the obligation to disclose will refer, for example, only to the participation in capital which exceeds a specified amount enabling influence over the decisions of the management or controlling bodies to be exerted. Moreover, this requirement can also be modified in accordance with the types of media which should be taken into consideration. By way of example, this obligation may apply solely to media of the same type as the service which is the subject of a licence application (for example, other television services in cases where the licence application concerns the operation of a television broadcasting service). Similarly, it may be limited to media covering the same geographic area as the service which is the subject of a licence application, in order to estimate the combined weight of these different media in the broadcasting zone under consideration. Finally, should the need arise, the information requirement can be extended to the interests held in sectors related to the media which can influence or enable the establishment of links either with the service which is the subject of a licence application, or with other media, or even between the service which is the subject of a licence application and these other media (for example, interests held in firms responsible for media advertising, the production of programmes for radio or television broadcasting or the distribution or transmission of the programmes of these services by other means, such as video, cable and satellite).
29. In addition to the disclosure of the relationships with other media-related sectors, it might be envisaged at a more general level to request applicants for the exploitation of broadcasting services to submit information on the interests which they hold in other economic sectors. This transparency requirement, as with the preceding case, may be more or less strict, for example only requiring holdings in the capital of other enterprises to be disclosed beyond a certain threshold.
Third category of information
30. This third category of information is aimed at enabling the services or authorities responsible for granting broadcasting licences to identify the persons or bodies, over and above the formally declared operators of the service, likely to have a significant influence on the editorial independence of the service or on the programming policy of the service. This requirement, aimed at obtaining as high a standard of genuine transparency as possible, is without doubt the most sensitive of the requirements to be implemented, given the difficulty involved in attaining a precise definition of the notion "power of influence".
31. At the most, certain elements which have the potential to give rise to this type of power can be defined:
- one such element may be the provision of significant financial resources for the setting up of the service or for its operations. In this context, it may be appropriate to require applicants for the operation of broadcasting services to specify the sources of financing on which they rely for these services. This may also make it possible to judge the financial viability of these services;
- another element may be the supply of substantial technical or manpower resources for the operation of the service in question (for example, the supply of personnel or material);
- a final element may be the supply of a substantial volume of programmes by a third party for broadcasting by the service in question: the supply of audiovisual programmes and films by production companies or by firms holding catalogues of programmes, which are now developing more and more in Europe; the supply of video music to music channels by firms of music publishers; the supply of thematic programmes to specialised channels (sports programmes aimed at channels specialised in sport, advertising programmes aimed at channels specialised in tele-shopping, etc.). Reference may be made to bartering, a practice by which third parties supply programmes to broadcasters free of charge in return for advertising time. One means of ensuring transparency of relations with future suppliers of the service could be to request applicants for the operation of broadcasting services to specify, in accordance with the envisaged content of the future service, how the latter will be supplied and, if necessary, to disclose the agreements or contracts concluded in this respect, in so far as national legislation so permits. It goes without saying that transparency in these relations not only concerns the setting-up phase of the broadcasting services but also the subsequent phase (see below).
32. A final hypothesis concerns the potential exercise of a power of influence over a broadcasting service and which is not linked to the supply of any service by a third party but is simply part of the special relationship between the third party and the managers of the future service. Such is the case, for example, of family relationships which might exist between a major shareholder in a firm applying for the operation of a broadcasting service and a person holding considerable interests in other forms of media or related sectors of activity likely to have links with the future service. This may also be the situation involving business relations between two persons or firms in sectors other than the media. The ultimate form of this type of relation is where the applicant for the operation of a broadcasting service acts as a "straw man" for another person or another firm.
33. Faced with these different situations, reference points on how to deal with the issue of power of influence can be found in certain national laws dealing with the media or in the rules which apply at a more general level to companies as a whole (company law, competition law).
Guideline No. 4: Disclosure of information following the granting of broadcasting licences to broadcasting services
Disclosure of information on the changes which have occurred in relation to the data communicated at the time of granting the broadcasting licence
34. The aim of the provisions included in the national legislation will consist of imposing on the operator of the broadcasting service an obligation to inform the licence issuing service or authority of any changes which have occurred in relation to the situation which constituted the basis for the award of the licence. As for the disclosure of information when granting broadcasting licences to broadcasting services, this transparency requirement can vary in degree. Thus, national legislation may provide that the appropriate service or issuing authority should be informed of any change occurring in the three categories of information which was subject to disclosure when the licence was granted (for example, the obligation to disclose any change in the distribution of capital or at least any change considered noteworthy, even if it does not involve a change in the management structure of the service; the obligation to disclose changes in the composition of the governing and supervisory bodies of the service even if the changes do not affect them). On the other hand, only changes likely to entail a modification in the management of the service or its orientation will possibly be subject to disclosure (for example, the obligation to disclose variations in distribution of capital and in the composition of the management bodies involving a transfer of management control in the service). The choice of one or other option will depend on the aim of the transparency requirement imposed on broadcasting services: to obtain a precise view of the changes in the running of broadcasting services or, on the contrary, to obtain information limited to significant changes which may, for example, justify a reconsideration of the conditions of issue or even the granting of the licence itself.
Disclosure of information on other categories of data
35. The aim of the provisions included in national legislation will be to enable the service or the authority concerned to be kept informed of all elements relating to the running of the service which were not subject to disclosure at the time of granting the licence since the service was simply not in existence. First and foremost, this will concern data relating to the financial life of the service (origin and amount of resources, profits) which in some national the information subject to disclosure may also vary considerably. It may be restricted to the communication of basic documents (balance sheets, accounts) or it may be extended to the presentation of more detailed financial declarations accompanied, if need be, by justifications setting out in a more detailed manner the distribution and origin of the various types of resources (advertising, sponsorship, the sale of programmes or provision of services carried out for third parties, etc.).
36. A particular element to note in this context is the case of broadcasting services which have subsidiaries specialised in fields related to the main activity of the specific service (examples: subsidiaries specialised in the distribution of the service's programmes in the form of videograms, subsidiaries responsible for running the advertising department of the service) or which set up joint companies with other media in neighbouring fields. In order to have as clear a view as possible of the activities and the financial results of these related sectors, it may be relevant to extend the obligation of transparency of activities and financial means of the broadcasting services to these subsidiaries and joint companies. Finally, as indicated above in relation to information which may be subject to disclosure when making an application for a broadcasting licence (see paragraph 31 above), a supplementary item of information which could be disclosed, if national legislation so permits, concerns the relations maintained by the service with third parties supplying it with specific resources (financial means, programmes, etc.). In this respect, as for the other rules on transparency, the questions to be settled are those concerning the type of relationship which should be subject to disclosure (all relationships, or only those, for example, above a certain financial level) and the operational procedures for disclosure (at the initiative of the operator of the service or at the request of the service or of the controlling authority, by a simple declaration or by handing over a copy of the legal acts signed between the operator of the service and third parties on an ad hoc basis or, on the contrary, periodically).
Guideline No. 5: Exercise of the functions of the services or authorities responsible for ensuring transparency in the running of broadcasting services
37. It is important that the missions and powers of the authorities or services responsible for ensuring transparency in the running of broadcasting services should be clearly defined in legislation. Clarity is necessary not only for these services and authorities, which need to know as precisely as possible the framework and limits of their action, but also for the persons or authorities required to disclose information to them, who also need to be informed of these powers and limits.
38. It is also important that these services or authorities should be granted powers enabling them to have access to the information required for the exercise of their functions and to judge the substance and accuracy of this information, while ensuring that a balance is maintained between these powers and the rights and legitimate interests of those who are required to disclose data (for example: data protection, protection of commercial and banking secrecy, of the confidentiality of the sources of information of the media and of editorial secrecy). In this context, one possibility may be to provide that the bodies subject to the disclosure requirement must supply the appropriate services or authorities with all the help required for the exercise of their functions. It should be for the authorities in each country to define in their national legislation the provisions which appear to them to be appropriate should broadcasting services refuse to disclose information which they are obliged to furnish under domestic law (fines, suspension of the authorisation to broadcast, etc.).
39. It may be the case that these services do not have at their disposal the resources necessary for gathering certain types of information and, in particular, for analysing this information, especially when it is rather complex (financial data, for example). It may therefore be useful to stipulate in the national legislation the authorities (administrative or judicial) or other persons or bodies (accounting experts, auditors, etc.) to which the services or authorities may appeal, in respect of which types of functions, in accordance with which procedures and in respect for which conditions and guarantees.
40. The services or authorities responsible for the application of the legislation relating to broadcasting, in particular those dealing with the granting of broadcasting licences to broadcasting companies may, in the course of their functions, need to communicate to third parties some of the information which they receive from applicants for the operation of broadcasting services or from operators of these services. This may, for example, be the case of an authority which would like to consult the organisations representing the audiovisual sector on the content which a person or body applying for the operation of a broadcasting service intends to give to the service, so as to judge the feasibility and impact of this project. This may also be the case of a service or an authority which would like to entrust the examination of the financial justifications communicated by a broadcasting service in application of the transparency rules to a specialised service or body. In order to allow for these consultations, it may be useful to include provisions along these lines in national legislation. Given the fact, however, that the persons or authorities who are the sources of the information have legitimate interests at stake, which justify restricting communication of the information to third parties, the limits for the possibilities for external disclosure should be clearly set out. The possibilities for disclosure should moreover be strictly limited to what is necessary for the carrying out of the functions of the services or authorities concerned and be submitted to clearly defined procedures. Finally, should the disclosure possibilities be invoked, the persons or authorities concerned should be informed beforehand and have the possibility of making comments or possible reservations or objections to the communication of certain data to third parties.
III. Comments on Guideline No. 6 on specific measures which may guarantee media transparency in the press sector
41. As indicated in the introduction, the provisions which may be included in national legislation on transparency in the press sector cannot be analogous to those which apply to the broadcasting sector. This is due to the fact that the procedures for the disclosure of information cannot be the same for the two sectors, given that the creation of press undertakings cannot be made subject to a licensing system, in contrast with the broadcasting sector.
42. In addition to the inclusion of specific provisions in national legislation, another relevant possibility could take the form of the adoption on the initiative of press enterprises of self-regulatory measures on transparency. Self-regulation could be introduced by means of codes of conduct, professional charters or other types of agreements.
43. The content of the information which national authorities may wish to make subject to disclosure can vary considerably in accordance with their aims but also in accordance with their constraints. As far as the aims are concerned, some national authorities may wish to ensure a very extensive degree of transparency for press undertakings for various reasons (for example, there is no structure in the press sector comparable to public service broadcasting which can ensure pluralism). Other national authorities may only wish to subject press undertakings to certain minimal rules on transparency, in particular given the possibility of wider access to the market in the press sector. As regards constraints, it should be noted that some authorities do not have the power to lay down transparency rules.
44. Apart from the fourth category of information, the information which may be subject to disclosure in the press sector does not differ fundamentally in terms of content from those foreseen in the context of broadcasting services. The comments which follow aim to highlight possible features of the press that need to be considered in comparison with those applicable to the broadcasting sector.
First category of information
45. The information which may be subject to disclosure in respect of this first category may be adapted where the publishing structure is a legal person. Where the structure is organised in the form of a company, then the requirement to disclose its identity may also be extended to all shareholders or, on the contrary, be limited to those with significant shareholdings in the company's capital. A significant shareholding may be defined by reference to the holding of a certain percentage of the capital (by way of example, shareholders having more than 10% of the capital) or by reference to a given number of shareholders (by way of example, the five principal shareholders). In addition to shares giving a share of the ownership in the publishing structure, the transparency requirement may also possibly be extended to persons who possess, under contracts or in accordance with other rights, a power of direction or management or a right to assess the functioning of the structure. Finally, this requirement may apply not only to acts which confer a share of the ownership or a power of direction or management or a right to assess the functioning of the structure but also to acts which may in the future confer these (for example, a promise to sell or to transfer the exploitation of a title).
Second category of information
46. The information which may be subject to disclosure in the context of this second category is intended to ensure transparency of the interests held by the publishing structures in the press (or by persons or bodies who are party to these structures) in other media (domestic or foreign). This concerns, first and foremost, participation in the capital of other publishing companies. However, it can also apply to the interests held by press undertakings in the capital of broadcasting services (radio, television) so as to take account of the development of cross-ownership of the media and multimedia concentrations. These provisions could possibly be extended to interests held in undertakings carrying out activities in related fields (for example: participation in the capital of firms responsible for the advertising side of other press or broadcasting media). Finally, the transparency requirement may be extended where appropriate to shareholdings in other economic sectors which do not have any link with the media sector.
Third category of information
47. It may be relevant to identify who are the people or bodies, over and above the formally declared operators of a publishing enterprise responsible for one or more newspapers, publications, and so on, likely to have a significant influence over the editorial policy of the latter. Such an influence might be exercised, for example, by advertisers. The issues referred to in paragraphs 30 to 33 concerning the power of influence are raised at this juncture in the same terms, even if this power of influence may take on a distinctive character (thus the exercise of influence through the supply of publishing material will not, a priori, be relevant).
Fourth category of information
48. It may be the case that the activities of publications are governed by statements of editorial policy or political orientation (editorial charters, etc.). The disclosure of such statements may be an appropriate way of attaining one of the primary aims of transparency namely, to allow the public to form an opinion on the value to be accorded to the information provided by the media by having clear knowledge of their editorial policy.
Fifth category of information
49. The disclosure of information in this category to public authorities may be justified in two specific circumstances. Firstly, disclosure may be a means for the services or authorities responsible for allocating direct aid to press undertakings to determine, on the basis of the criteria laid down for the granting of such aid, the undertakings which may or may not claim support by allowing them to have a precise view of their financial situation. Secondly, disclosure may prove necessary for the application of national anti-concentration provisions when the latter lay down circulation or turnover thresholds for publications beyond which a concentration operation is prohibited or submitted to prior authorisation. Disclosure of the information may allow the competent services or authorities to check whether or not these thresholds have been reached. It should be noted that the communication of such information may be provided in different branches of the law (general company law or media law).
50. The communication of this information to the public may also prove useful in enabling it to foresee possible changes in the ownership of press undertakings as a result of poor financial results of publications. The risks which disclosure of such information to the public may entail should be borne in mind (see paragraph 11).