Convergence and regulatory bodies: the impact on national and democratic institutions in the area of regulation
Ángel García Castillejo*/Spain, april 2016.
Although the case law of the European Court of Human rights does not provide specific guidance on this issue, it is possible to deduce on the basis of other principles that freedom of expression plays a fundamental role in a democratic society, particularly when it serves to impart information and ideas of general interest through the press that the public also has the right to receive, and that the State is the ultimate guarantor of pluralism, particularly in terms of the audiovisual media and its widely distributed programs.
According to Community doctrine and jurisprudence, genuine pluralism exists in the media when there is a large number of autonomous and independent media outlets at national, regional and local levels, thus ensuring a wide range of contents, and reflecting different political and cultural points of view. The Commission also believes that internal pluralism should exist at the same time in all sectors of the media. As such, it would not be acceptable that pluralism is guaranteed in the area of the written media but not in television. For the Commission, plurality of the media implies not only the existence of a plurality of stakeholders, but also the existence of a wide range of media, i.e. different types of media.
The instruments of the Council of Europe establish certain tools to promote pluralism of the media, as follows:
- A legislative framework setting limits on the concentration of media ownership. The instruments that allow this to be achieved include authorized limits (which is convenient to measure on the basis of an element or set of elements such as audience share, capital investment or income limits) that a single company is authorized to control in one or more of the affected markets.
- Media regulatory authorities with powers to act against ownership concentration.
- Specific measures against vertical integration (control of key elements of production, broadcasting distribution and related activities by a single company or individual group).
- Independence of regulatory authorities; media transparency.
- Measures aimed at actively promoting the production and dissemination of varied content.
- Direct or indirect financial support aimed at strengthening pluralism, provided on the basis of objective and non-partisan criteria within the framework of transparent procedures and subject to independent oversight.
- Self-regulatory instruments such as editorial guidelines or laws governing press independence.
With respect to the aforementioned, on 16 January 2007, the European Commission published a document entitled “Media pluralism: Commission stresses need for transparency, freedom and diversity in Europe’s media landscape.”
In the document “Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on media freedom and pluralism in the digital environment” it is stated that member states should guarantee the independence of their audiovisual regulatory authorities, should take appropriate steps to achieve genuine transparency regarding media ownership, take measures to safeguard the right of journalists to protect their information sources, protect journalists from undue influences, and in terms of the national context prevent possible negative effects of excessive concentration of media ownership.
Moreover, the European Commission is invited to continue to support projects aimed at improving the protection of journalists along with other media professionals, using the independent monitoring tool to assess risks to the pluralism of the media in the EU (Media Pluralism Monitor) as provided by the European University Institute in Florence. It should encourage use of this mechanism by the member states and all relevant stakeholders in order to reinforce, through non-legislative actions, cooperation between audiovisual regulatory authorities of the member states and promote good practices on transparency regarding media ownership. Finally, the EC should evaluate the effectiveness of these measures in order to consider any further actions.
Through the document “Conclusions,” member states and the Commission, within the framework of their respective powers, are invited to ensure, promote and implement the values enshrined in the Charter of Fundamental Rights of the European Union and, in this context, address challenges to the freedom and pluralism of the media across the EU, fully respecting the principle of subsidiarity.
The European Parliament and the Council of Ministers have shown over the years a growing and specific interest in monitoring the media, which is part of their political strategy for media pluralism. This was witnessed through the resolution of May 21, 2013, as well as the EU Charter, in which a standard configuration for press freedom across the EU has been established. This led to the European Parliament requesting that a regular monitoring activity on press freedom and pluralism be initiated by all Member States. Moreover, the European Parliament, emphasizing its commitment to the protection of media pluralism, approved the funding of a pilot project for the implementation of the “Monitoring Media Pluralism in Europe” (MPM) tool. In this context, the European Commission allocated funds to the Parliament’s Pilot Project, the Centre for Media Pluralism and Media Freedom (CMPF), which carried out the implementation of this pilot test of media pluralism in 2009 and then again in 2014.
The EU Council also endorses the policy of monitoring: the Council of the European Union and the representatives of the Governments of the Member States met on 26 November 2013, and adopted the Conclusions on media freedom and pluralism in the digital environment, which calls on the Commission to continue to support independent monitoring tools to assess risks for media pluralism in the EU.
Consequently, the European Commission in its document “Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on media freedom and pluralism in the digital environment” (2014/C 32/04) presented three proactive steps to the Member States of the EU, to the Commission within the framework of its powers, and to both in terms of their respective competences, noting within this convergent context the role of regulatory bodies in the communications sector and their independent nature as guarantors for the oversight of pluralism in the media system of their respective countries in the framework of the European Union.
* Managing Partner of MEL Lawyers S.L.P. Professor of Journalism and Audiovisual Communication at Universidad Carlos III in Madrid. Professor of Publicity Law and Intellectual Property at the Blanquerna Faculty of Communication, Universitat Ramón Llull, Barcelona. Former Director of the Commission for the Telecommunications Market in Spain.