Media - Freedom of expression and information

 Committee of experts on protection of journalism and safety of journalists (MSI-JO)

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Independent Regulatory Authorities
for the Broadcasting Sector:
Council of Europe Standards

Speech to be delivered at the conference on
“The role and the importance of public-service media in Europe”

Warsaw, 15 April 2008

Ladies and gentlemen,

The Council of Europe is the oldest political organisation on our continent. It was set up in 1949. Today it has 47 member states with a total population of 800 million people. For almost 60 years now, the Council of Europe has been working to protect and promote democracy, human rights and the rule of law in its member states. In pursuit of these ever present goals, the Council constantly has to face evolving or emerging challenges - terrorism, organised crime, corruption, cybercrime, trafficking in human beings, intolerance and discrimination, to name but a few.

The Council of Europe has always emphasised the crucial importance of mass media, and of broadcasting in particular, for the proper functioning of a democratic society. Broadcasting regulatory bodies play an essential role in ensuring the existence of independent, professional, pluralistic and responsible broadcasting. They do – or should do – this by safeguarding freedom of expression, the independence of broadcasters and the rule of law in the field of broadcasting.

In order to play such a role, however, broadcasting regulatory authorities should have adequate powers and should be involved in the development and implementation of the relevant national policies and legislation. Moreover, these bodies need to have the necessary independence. What independence? In brief, independence from governments, politicians, business or any other group with a vested interest. Ideally, regulatory authorities should operate at a safe distance from all of the above and should serve, in a dedicated, professional way, the whole of society.

It is a nice coincidence that one of the larger Council of Europe events dealing with this independence took place here in Warsaw. Back then, as today, the National Broadcasting Council of Poland was one of the co-organisers. The event took place in 2003 and its title was “Freedom and supervision: the role of broadcasting regulatory bodies”.

The Council of Europe continues to take great interest in this issue. Just a couple of weeks ago [on 26 March 2008], the Committee of Ministers adopted a Declaration on the independence and functions of regulatory authorities for the broadcasting sector. In this declaration, the Ministers emphasise the importance of a ‘culture of independence’. They call again on member states to implement, if they have not yet done so, Recommendation (2000) 23 on the independence and functions of regulatory authorities for the broadcasting sector.

This leads me to the Recommendation itself. It is perhaps the central point of reference when we talk of independent regulators. It has often been quoted and used – e.g., by the European Commission, by international organisations such as the European Platform of Regulatory Authorities and the Association of Commercial Television in Europe. National broadcasting regulators have also frequently referred to the principles contained in this recommendation.

Allow me here to recall the fundamental standards of Council of Europe in the media field. They are, of course, based on Article 10 of the European Convention on Human Rights and its interpretation in the case-law of the European Court of Human Rights. These standards are laid out in two kinds of instruments: legally binding (e.g., conventions) and non-binding (e.g., recommendations and declarations). The Council of Europe standards in the media field are recognised by the European Union as part of its political criteria for accession.

Though adopted approximately 8 years ago, the Recommendation (2000) 23 on the independence and functions of regulatory authorities for the broadcasting sector noted something which is even more visible today - that the technical and economic developments, which lead to the expansion and the further complexity of the sector, will have an impact on the role of regulatory bodies and may create a need for greater adaptability of regulation. This statement, formulated back then with regard to broadcasting, is clearly valid today for new and converging media.

The Committee of Ministers recognised that, depending on their legal systems, democratic and cultural traditions, member states have established regulatory authorities in different ways. What is important, however, is that these bodies are given adequate powers to fulfil their missions (as prescribed by national law) in an effective, independent and transparent manner. This is the main emphasis of the Recommendation which also contains specific guidelines to this end.

Here in brief is what these guidelines say.

Regarding the general legislative framework:

- Member states should ensure, through an appropriate legislative framework, the establishment and unimpeded functioning of regulatory authorities.
- The rules and procedures governing or affecting the functioning of regulatory authorities should clearly affirm and protect their independence.
- The law should clearly define:

    . the duties and powers of regulatory authorities;
    the ways of making them accountable;
    the procedures for appointment of their members;
    . the means of their funding.

Regarding the appointment, composition and functioning:

- The rules should be defined so as to protect regulatory bodies against any interference, in particular by political forces or economic interests;
- Members should be appointed in a democratic and transparent manner;
- Potential conflicts of interest should be avoided;
- Members should be protected against arbitrary dismissal as a means of political pressure.

Regarding the financial independence:

- Funding of regulatory authorities should be clearly specified in law so as to allow them to carry out their functions fully and independently.
- Public authorities should not use their financial decision-making power to interfere with the independence of regulatory authorities.

Regarding the powers and competence:

- Regulatory authorities should have the power to adopt regulations and guidelines concerning broadcasting activities;
- The regulations on the licensing procedure should be clear and precise and should be applied in an open, transparent and impartial manner;
- Regulatory bodies should be involved in the planning of national frequencies allocated to broadcasting services.

Regarding accountability:

- Regulatory bodies should be accountable to the public, e.g., publish reports on their work;
- Decisions and regulations adopted by the regulatory bodies should be:

    . duly reasoned;
    . open to review by the competent jurisdictions;
    . made available to the public.

All this was recommended by the Committee of Ministers in 2000. It might be justified to ask whether it still holds true after eight years of exponential development in the field of media and communication.

I can give you two examples. The 2003 Warsaw seminar, mentioned earlier, was one of the many professional meetings that endorsed the Recommendation on the independence and functions of regulatory authorities for the broadcasting sector. The participants felt that the Council of Europe Recommendation still provides the appropriate framework for safeguarding the independence of regulatory bodies. 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.

More recently, in October 2007, the participants in a conference organised in Skopje by the Council of Europe and the OSCE came to a similar conclusion. The conference was entitled “Converging media – convergent regulators? The future of broadcasting regulatory authorities in South-Eastern Europe”. The participants unanimously agreed that the independence of the regulatory body regardless of its form, converged or non-converged, is of fundamental importance. They acknowledged that the Council of Europe Recommendation (2000) 23 still validly outlines the basic prerequisites for the independence of regulatory authorities.

How does this Recommendation translate into the everyday reality? A recent overview of its implementation done by the Council of Europe concluded that, in general, the majority of member states seem to provide adequate legal protection for the independence of regulatory authorities. Unfortunately, this is not the case everywhere. In some states, the legal framework does not protect the independence of regulators as required by the Recommendation.

For example, the rules on the appointment of members to the authority do not always provide for adequate protection against political pressure. There are indications that, in some cases, public authorities have failed to respect the legal framework or have used legal loopholes to interfere with the independence of the regulatory body. Sometimes laws have been described as too vague or contradictory, making it difficult for regulators to make consistent and fair decisions.

If I dare make a prediction, the independence of regulatory authorities will continue to have the same, if not greater importance, in the years to come. Constant attention to this issue will ensure not only an appropriate legal framework but also the gradual development and entrenchment of a “culture of independence” – a culture to be grasped by the regulators, by the politicians and by society as a whole, to their own benefit.

Finally, I would like to thank the organisers for having invited me to this conference. I am sure it will contribute to the general debate on freedom of expression and to the specific discussions at national level on public-service media. This is also an issue that is dear to the Council of Europe, as its recent Recommendation (2007)3 on the remit of public service media in the information society testifies once again. I shall, however, leave this topic to the distinguished speakers later in the conference.

Thank you for your attention.