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Conference Freedom of Expression and Democracy in the Digital Age -
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FREEDOM AND SUPERVISION:
THE ROLE OF BROADCASTING REGULATORY BODIES
Regional seminar on the programme-monitoring functions of national regulatory authorities and their powers to impose sanctions
Organised in co-operation with the
Polish Broadcasting Council
Warsaw, 3-4 October 2003
Friday, 3 October 2003
Opening of the seminar
Mrs Danuta Waniek, President of the National Broadcasting Council of Poland
Mr Alexander Vladychenko, Director, Directorate General of Human Rights, Council of Europe (see opening speech)
The law-enforcement power of broadcasting regulatory bodies – European standards and practice
Moderator: Mr Alexander Vladychenko
Council of Europe standards and their implementation in practice
Mr Christophoros Christophorou, media and political analyst, former Director of the Radio and Television Authority, Cyprus (see presentation)
The regulation and practice in Poland
Dr Karol Jakubowicz, expert of the National Broadcasting Council of Poland; Vice-Chairperson of the Council of Europe’s Steering Committee on the Mass Media (see presentation)
The law-enforcement power of broadcasting regulatory bodies in South-Eastern Europe
Moderator: Mr Michael O'Keeffe, Chairperson, European Platform of Regulatory Authorities
End of first day
Saturday, 4 October 2003
Towards an improved legislation and practice in South-Eastern Europe
Discussion of draft conclusions and recommendations of the seminar
Moderator/rapporteur: Dr Karol Jakubowicz
- Conclusions and recommendations
- ATCM(2003)030 National Reports by the Regulatory Bodies
- ATCM(2003)031 Replies by the regulatory bodies to a questionnaire prepared by the Council of Europe
- DH MM (2003)007 An overview of the rules governing broadcasting regulatory authorities in Europe
* * *
The Council of Europe, within the framework of its Stability Pact Programme and in co-operation with the Polish Broadcasting Council, organised on 3-4 October 2003 in Warsaw a Regional seminar for broadcasting regulatory authorities from South-Eastern Europe on “Freedom and supervision: the role of broadcasting regulatory bodies”.
The objective of the seminar was to review the legislative and practical problems faced by broadcasting regulatory authorities in South-Eastern Europe concerning their law-enforcement powers and to identify possible approaches to overcome these problems at both the regional and national levels. Over 20 representatives from these authorities took part in the seminar.
Introductory presentations were made by Mr Christophoros Christophorou, media and political analyst and former Director of the Radio and Television Authority of Cyprus, on Council of Europe standards and their implementation in practice and by Dr Karol Jakubowicz, expert of the National Broadcasting Council of Poland and Vice-Chairperson of the Council of Europe’s Steering Committee on the Mass Media, on the regulation and practice in Poland.
The discussion which followed focused on the problems faced by each regulatory body in performing its programme-monitoring functions and concerning its powers to impose sanctions on broadcasters who violate the regulations. Two speakers representing the broadcasters’ point of view – Mr Petko Georgiev from IREX ProMedia, Bulgaria, and Mr George Chirita, Executive Director of the Romanian Association for Audiovisual Communication – provided useful counterpoints to some of the views expressed by the regulatory authorities.
During the seminar, the participants raised the following main concerns:
- In a number of countries, some broadcasters operate without licences, broadcast outside their authorised areas, disrespect copyright and violate programming, advertising and other restrictions or requirements imposed by the law and by their licences.
- In many countries, funding for the regulatory bodies is insufficient and in some cases, governments are tempted to exercise pressure on the regulatory authorities via the allocation of budgetary resources.
- In most, if not all countries, financial resources are insufficient for comprehensive monitoring of broadcasters’ programmes.
- Many regulatory bodies encounter problems related to the legal framework – lacking, inadequate or vaguely regulated supervisory and enforcement functions; lacking or inadequate enforcement powers, and inadequate powers of “delegated regulation”.
At the close of the seminar, the participants adopted the following conclusions and recommendations:
1. Broadcasting is a crucially important field of modern society and requires freedom and protection, proper regulation and supervision. This is best provided by an appropriate legal framework and an independent broadcasting authority – an institution which safeguards freedom of expression, the independence of broadcasters and the rule of law in broadcasting. It must be guided at all times by respect for human rights and democracy, in line with the European Convention on Human Rights.
2. Broadcasting regulatory authorities should have adequate and proportionate powers enabling them to ensure access to networks and services, set standards, promote quality and ensure a healthy, technologically up-to-date industry. Regulatory authorities should be closely involved in the development and implementation of national audiovisual and broadcasting policies and legislation.
3. The participants felt that the Council of Europe Recommendation (2000) 23 of the Committee of Ministers to member States on the independence and functions of regulatory authorities for the broadcasting sector provides the appropriate framework for safeguarding the independence of such authorities. They also recognised that the Recommendation needs to be supplemented by national legislation giving practical effect to the principles of independence, effectiveness, transparency and accountability of broadcasting regulatory authorities. Governments and national Parliaments should take appropriate measures to this effect.
4. The Recommendation well defines the safeguards that need to be in place to ensure the independence of a broadcasting regulatory authority. However, this must be complemented by the professionalism and personal determination of the members and staff of the authority to remain independent and impartial in the execution of their tasks. In this respect, the legal, administrative and financial status of the staff is a matter of particular importance. One way of promoting that is to create the proper legal and financial conditions for the operation of regulatory authorities, including – where appropriate and feasible – full-time employment for their members, as well as guarantees against unwarranted, discretionary dismissal. Broadcasting regulatory authorities should consider adopting codes of conduct designed to bolster the independence and impartiality of the operation of the authority and its staff. Long-term legal, administrative, institutional and financial stability of the regulatory authority is conducive to its effectiveness and independence.
5. A regulatory broadcasting authority cannot be effective without adequate and proportionate powers to regulate (e.g., by setting and promoting standards and generally by issuing secondary regulation within the mandate given to the authority in the law), licence broadcasters and set terms of the licence to broadcast, and subsequently to monitor, supervise and, if necessary, sanction broadcasters, as provided for by the law. The authority should be involved in spectrum management to the extent necessary for the purposes of broadcasting, and should be independent in the allocation of frequencies set aside for broadcasting. Law enforcement with regard to programming and to the operation of broadcasters in general should be a priority for the regulatory authority. Though the authority should be independent and self-sufficient in its day-to-day work, it should also enjoy the support and co-operation of telecommunications authorities, bodies responsible for observance of copyright, the judiciary and other law-enforcement agencies, especially in the execution and implementation of its decisions.
6. While preserving the principle of the availability of appeal against the authority’s decisions, or obtaining judicial review of such decisions, the legal framework should guarantee the immediate implementation of the authority’s decisions, unless an intermediate court decision suspends their execution. Sanctions should be proportionate and should not be decided upon until the broadcaster in question has been given an opportunity to be heard (Rec(2000)23, para 23).
7. To be effective, the broadcasting regulatory authority needs the support of well-qualified staff, sufficient in number to meet the needs of the regulatory authority.
8. The requirement of transparency means that the regulatory authority should work openly, create conditions of public access to its operation and documents, and maintain a dialogue with the public and the broadcasting industry about its policies and plans. Public consultations regarding its major policies and decisions should be the norm. Dialogue with, and outreach to, the broadcasting industry and all interested parties should ensure widespread knowledge and understanding of the law, as well as of the goals, procedures and criteria applied in the authority’s work. It should also serve to inform the members and staff of the regulatory authority about the needs of broadcasters and the conditions under which they operate. Regulatory authorities should encourage a public complaints process as a principal means of identifying violations and should promote self regulation by broadcasters or alternatively co-regulation.
9. The principle of accountability to the public requires, in the first instance, recognition on the part of the broadcasting regulatory authority that it is working in the general public interest, not in the narrow, sectoral or political interest of a certain group, body or organisation. The authority should announce, explain and justify its policies and decisions in a timely fashion. It should also develop and publish general principles, plans and strategies of its operation, and consistently implement them, fully explaining any departures from them, should they become unavoidable. It should be seen to be willing and able to change or adjust its policies and decisions in response to the results of public consultations.
10. As the broadcasting industry evolves and changes, so must broadcasting regulatory authorities. Their functions and powers must change in response to technological change and the development of digital technologies, as well as to the growing economic importance of the broadcasting sector, as it gradually becomes integrated with telecommunications and informatics. National governments and parliaments should take appropriate action to revise the regulatory framework in a way to make this possible.
The participants and the organisers would like to thank the Governments of Italy, Luxembourg, Norway and the Netherlands for their financial contributions, which have made this and many other events possible. Special thanks are also extended to the host of the seminar – the Polish Broadcasting Council.