The Media in South-East Europe

A Comparative Media Law and Policy Study

European Media Law and

Policy Framework
Alexander Scheuer, Christian M. Bron, Shari Kind
Published by:

Friedrich Ebert Foundation

Office Bulgaria
P.O. Box 958
97, Knjaz Boris I Street
1000 Sofia, Bulgaria

Authors: Alexander Scheuer, Christian M. Bron, Shari Kind

Responsible: Beate Martin, FES Kosovo, Marc Meinardus, FES Bulgaria

Final Editing: Kenward Hill

Cover Design and Layout: Maria Taseva

The views expressed in this publication are not necessarily those of the Friedrich Ebert Foundation
or of the organisation for which the authors work.

The state of information provided and analysed is reflected as of December 2010.

All texts are available online at www.fes.bg and at www.emr-sb.de

Sofia, Bulgaria, May 2011

The Media in South-East Europe
A Comparative Media Law and Policy Study

European Media Law and

Policy Framework
Alexander Scheuer, Christian M. Bron, Shari Kind

Conducted on behalf of the

Friedrich Ebert Foundation, Berlin – Regional Project Dialogue South-East Europe

By the
Institute of European Media Law e.V. (EMR), Saarbrücken/Brussels
2 The Media in South-East Europe
European Media Law and Policy Framework 3

Table of Contents

Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1 Council of Europe standards: Art. 10 ECHR as benchmark for the freedom

of the media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.1 Legal Background to the Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.2 The scope of protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1.3 Interferences according to Art. 10 ECHR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1.4 Legality of interferences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1.5 Freedom of information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1.6 The freedom of the press . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1.7 Freedom of broadcasting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1.8 Freedom of artistic expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1.9 Protection of the use of the internet, emails and telephone . . . . . . . . . . . . . . . . . . . 39

2 Media law aspects of European Union law: The acquis and its extension to
South-East Europe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2.1 Obligations deriving from accession to the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

2.2 Relevant legal framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
2.3 Transposition of the EU acquis, particularly the AVMS Directive . . . . . . . . . . . . . . . . 64

About the authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

4 The Media in South-East Europe
European Media Law and Policy Framework 5

Preface

The benchmark applicable to numerous as-

pects of media law and policy at the national
level is mainly set by the standards which can
be derived from binding legal requirements
and additional instruments issued at the
Council of Europe as well as adopted by the
European Union.
In this respect, the present analysis titled
“European Media Law and Policy Frame-
work” forms an integral component of the
study “The Media in South-East Europe”. The
Friedrich Ebert Foundation – Regional Proj-
ect South-East Europe has commissioned the
Institute of European Media Law to conduct
this study which should not only explore the
market and legal conditions of the media sec-
tor in the countries concerned, but also iden-
tify suitable remedies that could be suggested
in order to help improve, and overcome pos-
sible shortcomings in, the situation actually
encountered.
Therefore, the benchmark, against which
the current legal and policy framework in the
countries of South-East Europe had to be an-
alysed and with regard for which proposals
that might help remedy the identified deficits
had to be developed, was initially established
by the EMR and then made available to the
national experts who drafted the country re-
ports.
6 The Media in South-East Europe
European Media Law and Policy Framework 7

1 Council of Europe standards: Art. 10 ECHR, which widely influence today’s

Art. 10 ECHR as benchmark for European media landscape. The ECtHR refers
in various decisions to different Conventions
the freedom of the media
of the Council of Europe and Recommenda-
tions passed by the Committee of Ministers
In the following the Council of Europe stan-
addressing the media. Therefore, reference is
dards, particular stemming from Art. 10 Euro-
also made to the relevant Conventions and
pean Convention on Human Rights1 (ECHR),
Recommendations in the following:
are to be examined. This should serve as a
benchmark for the freedom of the media in
1.1 Legal Background to the Convention
all European States that have ratified the Con-
vention, not only EU Member States.
According to its Statute2 it is not a condition
Art. 10 ECHR reads as follows:
for membership in the Council of Europe that
“1. Everyone has the right to freedom of
the respective state ratifies the ECHR, but that
expression. This right shall include free-
states respect the rule of law as well as hu-
dom to hold opinions and to receive and
man rights and fundamental freedoms. Still,
impart information and ideas without
all current Member States of the Council of
interference by public authority and re-
Europe (47) are also Contracting States to the
gardless of frontiers. This article shall not
ECHR. However, ratification of the ECHR re-
prevent States from requiring the licens-
quires membership in the Council of Europe
ing of broadcasting, television or cinema
(Art. 59 (1) ECHR).
enterprises.
The ECHR is only binding for the Con-
2. The exercise of these freedoms, since it car-
tracting States. It needs to be converted into
ries with it duties and responsibilities, may
national law to be valid; the way how the
be subject to such formalities, conditions,
conversion of international treaties into the
restrictions or penalties as are prescribed
internal national law takes place can be speci-
by law and are necessary in a democratic
fied by the states.
society, in the interests of national secu-
As mentioned, a fundamental character-
rity, territorial integrity or public safety, for
istic is that just the (initial) Convention itself
the prevention of disorder or crime, for
is binding for the states. Additional protocols
the protection of health or morals, for the
are obligatory only for those states which
protection of the reputation or the rights
have ratified them. Consequently, the range
of others, for preventing the disclosure of
of protection concerning the particular guar-
information received in confidence, or for
antees in the Convention may differ in the
maintaining the authority and impartiality
respective states.3 Besides, Contracting States
of the judiciary.”
have the possibility of making reservations in
The European Court of Human Rights
respect of any particular provision in the Con-
(ECtHR) has shaped, in its numerous deci-
vention when signing it (Art. 57(1) ECHR).
sions on the present subject matter, basic
According to Art. 1 ECHR,
principles and requirements with regard to
“[T]he High Contracting Parties shall se-

1
Convention for the Protection of Human Rights and Funda- 2
Cf. Art. 3 et seq. Statute of the Council of Europe of 5 May
mental Freedoms of 4 November 1950 as amended by its Pro- 1949, available at: www.conventions.coe.int/
tocol No. 14 (CETS No. 194) as from the date of its entry into 3
C. Grabenwarter, Europäische Menschenrechtskonvention,
force on 1 June 2010. Munich 2009, § 2 rec. 4.
8 The Media in South-East Europe

cure to everyone within their jurisdiction some South-East European states like Croatia
the rights and freedoms defined in Sec- or Romania.5
tion I of this Convention.” After the drastic changes of the political
Thus, regardless of nationality, the legal systems in the Central European and Eastern
protection of a person just depends on being European States, the ECHR as well as the ju-
affected by the sovereignty of a contracting risdiction of the ECtHR have a special signifi-
state, whereas the latter can only be referred cance as both can serve as a model for the
to the Court of Human Rights for violations of construction of a new (legal) system with a
the ECHR as a Member State. European direction and standard in those
The European Union has not yet ratified countries.6
the ECHR. However, Art. 6(2) of the Treaty on The examination by the ECtHR as to
the European Union (TEU) (now) foresees the whether there is a violation of the Convention
possibility for the EU to become a member of is carried out in three stages. Firstly, the Court
the ECHR by signing this international treaty. inspects whether the scope of protection of
Additionally, Article 6(3) TEU declares that the an article of the Convention is affected. Sec-
fundamental rights as they are guaranteed by ondly, it examines whether there is a measure
the ECHR are part of the Union Law as “gen- that interferes with a legally protected posi-
eral principles”. Correspondingly, Protocol tion of a person. Thirdly, it assesses whether
No. 14 to the ECHR, which entered into force this restriction can be justified. According to
on 1 June 20104, in its Art. 17, amended Art. Art. 10 ECHR, the interference shall be pre-
59 ECHR, which now states that “the Euro- scribed by law and pursue a legitimate aim,
pean Union may accede to the Convention”. whereas the interference has to be propor-
It could be expected that the EU will do so in tionate to the significance and the value of
the near future. the aim pursued.
Besides, there is the question of the re-
lationship between the range of the pro- 1.2 The scope of protection
tection provided by the ECHR, on the one
hand, and by the national constitutions, on Art. 10 ECHR, first of all, according to para. 1
the other hand. The Convention has the protects “the right to freedom of expression”.
function to guarantee a “minimum stan- According to this fundamental right the ECtHR
dard” of protection. Therefore, the states ruled in its “Handyside case” that the
are free to provide their citizens with more “[f]reedom of expression constitutes one of
comprehensive, detailed and/or addition- the essential foundations of a democratic
al rights than the Convention itself does. society, one of the basic conditions for its
However, the states must not fall short of progress and for the development of ev-
the level of protection as afforded by the ery man.”7
Convention (Art. 57 ECHR). However, Art. 10 ECHR has a much wider
The Convention has “constitutional sta- scope, because not only the “freedom of com-
tus” only in Austria. In all other states it ranks munication”, but the entire communication
under the Constitution. However, it outranks
simple-majority legislation, as for example in
5
See Art. 134 of the constitution of the Republic of Croatia, 21
December 1990 and Art. 20(2) of the constitution of Romania.
4
Protocol No. 14 to the Convention for the Protection of Hu- 6
Cf. Grabenwarter, op. cit., § 3, rec. 10.
man Rights and Fundamental Freedoms, amending the control 7
Handyside v. the U.K., judgment of 7 December 1976, Appl.
system of the Convention, Strasbourg, 13 May 2004. 5493/72, § 49.
European Media Law and Policy Framework 9

process is covered. This includes at least six sub- However, it is necessary that they are ad-
areas: the freedom of expression and of infor- equately grounded on a sufficient factual ba-
mation, the freedom of the press and of broad- sis that has to be proved itself; otherwise an
casting, and the freedom of art and of science. interference could be proportionate.10
As there are several forms of communica- Journalists are principally obliged to verify
tion, it could be said that the freedom of ex- factual statements. But even if their state-
pression is the basis of the protection of the ments are defamatory of private individuals,
freedom of communication. A reading of the they can be dispensed from this ordinary obli-
jurisprudence of the ECtHR shows that it is gation. The exercise of freedom of expression
difficult to distinguish between the respective carries with it “duties and responsibilities”,
rights, especially the freedom of expression which also apply to the media even with re-
and the freedom of the press. For example, spect to matters of serious public concern.
journalists who make statements may be pro- They are considerable when the reputation
tected by the freedom of expression, as in the of a named individual is attacked and thus
majority of the cases this right is concerned, or the “rights of others” are interfered with.
by the freedom of broadcasting. Therefore, special reasons are required before
Therefore, in some instances the protection the media can be dispensed from their obli-
of all covered rights under Art. 10 ECHR may gation to verify factual statements that are
merge and would have to be seen as comple- defamatory of private individuals. Whether
menting each other. In the following, different such grounds exist, depends in particular on
areas of the scope of protection applying to all the nature and degree of the defamation in
the media are to be examined. question and the extent to which the media
can reasonably regard their sources as reliable
a) Value judgments and statements of fact with respect to the allegations.11 Thus, it has
An opinion can be expressed by giving a value to be decided based on a weighing of inter-
judgment and/or a statement of fact. ests in the given case.
The ECtHR says that According to the ECtHR in the Bladet
“the existence of facts can be demonstrat- Tromsø and Stensaas judgment12, the press
ed whereas the truth of value judgments should normally be entitled to rely on the con-
is not susceptible of proof.”8 tents of official reports and their correctness
It determines that a careful distinction without having to undertake independent re-
needs to be made between value judgments search. Otherwise, the vital public watchdog
and statements of fact, whereas the dividing role of the press may be undermined.13
line cannot be defined precisely. It has to be noted that the Court also decided
In any case, value judgments have a de- that it is in principle not incompatible with
scriptive element and include judgmental Art. 10 ECHR to place on a defendant in libel
parts. In a democratic society they do not
have to be proved – especially by journalists.
Otherwise, 9
Lingens v. Austria, op. cit., § 46.
10
Jerusalem v. Austria, judgment of 27 February 2001, Appl.
“it infringes freedom of opinion itself, which 26958/95, §§ 42 and 43.
11
Tønsbergs Blad AS and Haukom v. Norway, judgment of 1 March
is a fundamental part of the right secured 2007, Appl. 510/04 , § 89.
by Article 10 of the Convention.”9 12
Bladet Tromsø and Stensaas v. Norway, judgment of 20 May
1999, Appl. 21980/93, § 68; see mutatis mutandis: Colombani v.
France, judgment of 25 June 2002, Appl. 51279/99.
13
Goodwin v. the U.K., judgment of 27 March 1996, Appl.
8
Lingens v. Austria, judgment of 8 July 1986, Appl. 9815/82, § 46. 17488/90, § 39.
10 The Media in South-East Europe

proceedings the onus of proving to the civil shock or disturb; such are the demands of
standard the truth of defamatory statements. that pluralism, tolerance and broadmind-
Nevertheless, it is essential, edness without which there is no demo-
“in order to safeguard the countervailing in- cratic society.”17
terests in free expression and open debate, A speaker, however, is obliged to choose
that a measure of procedural fairness and his words with caution. If he might have been
equality of arms is provided for.”14 able to voice his criticism and to contribute to
There are also case configurations con- a free public debate without having had re-
ceivable in which a proper value judgment has course to a particular defamatory word which
to be handled as a factual judgment. Where explicitly referred to a criminal offence a con-
criminal accusations are concerned, a claim viction based on this statement would not be
implying a negative value judgment includes a violation of Art. 10 ECHR.18
a precise descriptive element and is therefore Criticism, especially conducted by jour-
more likely to be of factual nature, and needs nalists, is necessary in (and for) a democrat-
to be proved.15 ic society in order to support political and
Both value judgments and statements of social development. Therefore, freedom of
fact are protected entirely and without limita- expression gives the public the singular op-
tions by Art. 10 ECHR. portunity to receive information and there-
Additionally, the case law of the ECtHR after to form their own opinions, so it is an
shows that, besides certain forms of expression integral attribute of a democratic society. A
and types of information, Article 10 also ap- conviction of a journalist in relation to dis-
plies to information of a commercial nature.16 tributing information of public interest may
well deter one from contributing to public
b) Critical statements discussion of issues affecting the life of the
Criticism on state institutions or private per- community and discourage one from mak-
sons are statements that are particularly suit- ing criticisms in future. It can amount to a
able for affecting the legal sphere of other kind of censorship and hinder the public
people or legal assets protected by the ECHR, opinion-forming process.19
such as the reputation or the authority and Journalists can also refer to Art. 10 ECHR,
impartiality of the judiciary. even if they excoriate, exaggerate or provoke
But the protection is not limited to posi- or if they make polemical statements. Nev-
tive or “harmless” criticism or inoffensive ertheless, the Court underlines that several
statements the particular receiver may want rules are to be followed to assure a minimum
to receive. The Court often reiterates that level in the particular debate. Insults, denigra-
“it is applicable not only to information and tions, slander or gratuitous personal attacks
ideas that are favourably received or re- could not enjoy general, unlimited protection
garded as inoffensive or as a matter of in- under the Convention. Such statements can-
difference, but also to those that offend, not support a democracy and therefore must
not be tolerated.
14
Steel and Morris v. UK, judgment of 15 February 2005, Appl.
68416/01, § 95.
15
Dommering, Comments on Art. 10 ECHR, in: Castendyk/Dom-
mering/Scheuer, European Media Law, p. 55, para. 35.
17
Handyside v. the U.K., op. cit., § 49.
16
Markt intern Verlag GmbH and Klaus Beermann v. Germa-
18
Constantinescu v. Romania, judgment of 27 June 2000,
ny, judgment of 20 November 1989, Appl. 10572/83, § 26; Appl. 28871/95, § 74 and § 75.
Casado Coca v. Spain, judgment of 24 February 1994, Appl.
19
Monnat v. Switzerland, judgment of 21 September 2006,
15450/89, § 37. Appl. 73604/01, § 70.
European Media Law and Policy Framework 11

c) Criticism of the judiciary tacle of pseudo-trials in the news media

Concerning matters of public interest the EC- might in the long run have nefarious
tHR sees the functioning of the judiciary as consequences for the acceptance of the
such a relevant matter because of the fun- courts as the proper forum for the deter-
damental role of the courts as guarantors mination of a person’s guilt or innocence
of justice in a state based on the rule of law, on a criminal charge.” 24
whereas the protection of the authority and An article concerning legal proceedings
impartiality of the judiciary is a legitimate aim pending, especially criminal proceedings,
mentioned in Art. 10. The respect for the judi- can also affect the rights of the defendant. It
ciary is also required by the Recommendation should be added that the defendant is entitled
No. R (94) “on the independence, efficiency to enjoy the guarantee of a fair trial and the
and role of judges”.20 right to be presumed innocent of any crimi-
Public confidence plays an essential role nal offence until proved guilty, a guarantee
for the courts so that they have to be protect- which is set out in Art. 6 ECHR. This fact has
ed from distorting and unfounded criticism. relevance for the balancing of competing in-
Attention has to be paid to the special role terests.25 Therefore, journalists have to refrain
of the media that allows even an aggressive from statements that are likely to prejudice.
or harsh tone. Consequently, published ar- Furthermore the ECtHR deduces from the
ticles reporting about decisions of judges, the Appendix to the Recommendation Rec (2003)
judges themselves or pending trials cannot be 13 “on the provision of information through
judicially attacked successfully in certain cir- the media in relation to criminal proceedings”
cumstances – especially, if there was detailed that even the states are subject to positive ob-
research and supporting opinions of experts ligations under Art. 8 to protect the privacy of
etc. underlying the publications.21 convicted persons in such proceedings.26
Additionally, When examining whether the domestic
“it is not for the Court, or for the national authorities have solved this conflict of rights
courts for that matter, to substitute their in conformity with the European law, the
own views for those of the press as to Court includes the principles of this Recom-
what technique of reporting should be mendation, saying that
adopted by journalists.”22 “it rightly points out that the media have
So, the states are not entitled to restrict all the right to inform the public in view of
forms of public discussion on matters pend- the public’s right to receive information,
ing before the courts23, whereas the press has and stresses the importance of media re-
to pay attention to its “duties and responsi- porting on criminal proceedings in order
bilities”. to inform the public and ensure public
“It cannot be excluded that the public’s be- scrutiny of the functioning of the criminal
coming accustomed to the regular spec- justice system. In addition, the Appendix
to that Recommendation states that the
public must be able to receive information
20
Amihalachioaie v. Moldova, judgment of 20 April 2004,
Appl. 60115/00, judge Pavlovschi in a dissenting opinion.
21
De Haes and Gijsels v. Belgium, judgment of 24 February
1997, Appl. 19983/92. 24
Sunday Times v. the U.K., op. cit., § 63.
22
News Verlags GmbH & Co. KG v. Austria, judgment of 11 25
Worm v. Austria, op. cit., § 50 and 55; Bladet Tromsø and
January 2000, Appl. 31457/96, § 39. Stensaas v. Norway, op. cit., § 65.
23
Worm v. Austria, judgment of 29 August 1997, Appl. 26
Egeland and Hanseid v. Norway, judgment of 16 April 2009,
22714/93, § 50. Appl. 34438/04, § 53.
12 The Media in South-East Europe

about the activities of judicial authorities cumstances the press may be excluded from
and police services through the media and a trial. Such an exclusion can be justified to
that journalists must therefore be able to protect the privacy of a child and other par-
report freely on the functioning of the ties, which is protected by Art. 8 ECHR, and
criminal justice system.”27 to avoid prejudicing the interests of justice.31
But it also refers to this Recommendation
d) Criticism of politicians
and its Appendix when it says that
The journalists’ right of making statements
“it is to be noted that the public nature of
may be restricted by the type of the person
court proceedings does not function as a
that is affected by it; however, generally not so,
carte blanche relieving the media of their
when it comes to reporting on public figures
duty to show due care in communicat-
such as politicians. According to the Court32,
ing information received in the course of
“the limits of acceptable criticism are wid-
those proceedings”28,
er with regard to a politician acting in his
and that
public capacity than in relation to a private
“under the terms of Article 10 § 2, the exer-
individual.”
cise of the freedom of expression carries with
A politician is a public figure who volun-
it ‘duties and responsibilities’, which also ap-
tarily lays himself open to close scrutiny of his
ply to the press. In the present case this re-
acting and word. Therefore he has to bargain
lates to protecting ‘the reputation or rights
for critical reactions of the public or the press
of others’ and ‘maintaining the authority and
and a higher degree of tolerance has to be
impartiality of the judiciary’. These duties and
displayed. A possible failure of a public figure,
responsibilities are particularly important in
even in the private sphere, may, in certain cir-
relation to the dissemination to the general
cumstances, constitute a matter of legitimate
public of photographs revealing personal and
public interest.33
intimate information about an individual. The
Even the publication of purely private in-
same applies when this is done in connection
formation of public figures may be permitted,
with criminal proceedings.”29
if there is a close connection with their func-
With regard to the principles of the Recom-
tion. The Court considers that
mendation and Appendix, especially the posi-
“it would be fatal for freedom of expression
tive obligations of the states, the Court has al-
in the sphere of politics if public figures
ready affirmed a violation of Art. 8 ECHR con-
could censor the press and public debate
cerning a publication that entailed prejudice
in the name of their personality rights, al-
against the applicant’s honour and reputation
leging that their opinions on public mat-
and was therefore harmful to his moral and
ters are related to their person and there-
psychological integrity and his private life.30
fore constitute private data which cannot
These considerations are also important
be disclosed without consent.”34
for the question regarding under which cir-

27
Dupuis and other v. France, judgment of 7 June 2007, Appl.
31
See B. and P. v. the U.K., judgment of 24 April 2001, Appl.
1914/02, § 42. 36337/97 and 35974/97.
28
Eerikäinen and others v. Finland, judgment of 10 February
32
Oberschlick v. Austria (no.2), op. cit., § 29; Lopes Gomes
2009, Appl. 3514/02, § 63; Flinkkilä and others v. Finland, da Silva v. Portugal, judgment of 28 September 2000, Appl.
judgment of 6 April 2010, Appl. 25576/04, § 77. 37698/97, § 30.
29
Egeland and Hanseid v. Norway, op. cit., § 59.
33
Tønsbergs Blad AS and Haukom v. Norway, op. cit., § 87.
30
A. v. Norway, judgment of 9 April 2009, Appl. 28070/06,
34
Társaság a Szabadságjogokért v. Hungary, judgment of 14
§§ 73 - 75. April 2009, Appl. 37374/05, § 37.
European Media Law and Policy Framework 13

But this does not mean that a politician plicable, such reports can be justified by the
is not entitled to have his person protected. right to freedom of expression of the journal-
In addition to Art. 10(1) ECHR protecting the ists. This right has to be balanced against the
right to freedom of expression as the basis of protection of the private life of the persons
all media, Art. 8(1) ECHR declares a right to affected, while special circumstances can lead
respect the private and family life, the home to an outweighing of the former.
and the correspondence of a person. He/She Therefore, the ECtHR found a violation
enjoys this right even when he/she is acting in of Art. 10 ECHR in the Flinkkilä and others
his public capacity, whereas both rights need case. Journalists were sentenced because of
to be counterbalanced in the case of conflicts. the publication of photos which showed a
There always has to be a fair balance be- woman who was the partner of a politician.
tween the personal interest of the politician It said that
and public interests, especially the interests of “[h]er status as an ordinary person enlarg-
open discussion of political issues. es the zone of interaction which may fall
This topic has already been the subject of within the scope of private life.”36
different judgments of the ECtHR. In the case Because she had already caught the at-
Dalban v. Romania 35 the Court observed the tention of the public by her behaviour in the
application of a journalist who was convicted past, the Court found furthermore that
for criminal libel because of some articles that “[it] cannot but note that [she], notwith-
exposed a series of frauds allegedly commit- standing her status as a private person, can
ted by a senator and the chief executive. Ac- reasonably be taken to have entered the
cording to the ECtHR, this was an interference public domain.(...) The disclosure of [her]
that could not be accepted as necessary in a identity in the reporting had a direct bear-
democratic society. The information of the ing on matters of public interest (...).”37
article was about a matter of public interest, In conclusion, the conviction of the jour-
namely the behaviour of the senator and the nalists was illegal, because they had acted in
chief executive as a politician, thus a person the public interest.
of public interest, and did not concern their
private life. With regard to the vital role of the e) Criticism of the government
press, and the fact that the allegations could The examination of applications concerning
not be proved as untrue, there was a clear “criticism of the government” is, according
breach of the journalist’s right of freedom of to the ECtHR, handled in a similar way to
expression. criticism of politicians.38 The limits are also
A further question in this context is wider than with regard to a (purely) private
whether, and to what extent, journalists are person. The government occupies a domi-
allowed to report about persons who are as- nant position, which makes it essential to ex-
sociated with politicians, such as family mem- ercise moderation, especially in resorting to
bers, partners in life or friends. Although they criminal proceedings, where other measures
are not public figures, meaning that the prin- are available.
ciples mentioned above are basically not ap-

36
Flinkkilä and others v. Finland, judgment of 6 April 2010,
35
Dalban v. Romania, judgment of 28 September 1999, Appl. Appl. 25576/04, § 82.
28114/95. 37
Flinkkilä and others v. Finland, op. cit., §§ 83 and 85.
38
Incal v. Turkey, judgment of 9 June 1998, Appl. 22678/93,
§ 54.
14 The Media in South-East Europe

Besides the division of power, the control concrete, not “general and undetermined”
by the public opinion is essential in a demo- and did not feature any irony or humour.
cratic system, while it remains open to the Therefore, the ECtHR found that even the
states as guarantors of public order to adopt right of the press to provoke or exaggerate
measures to react, i.e. by law or other propor- could not be exerted to justify such allega-
tionate measures. tions, and that the bounds of acceptable criti-
The Court’s judgment in the case Feldek cism had been overstepped. In conclusion, a
v. Slovakia39 gives an example of the scope violation of Art. 10 ECHR was not established.
of protection of Art. 10 in this context. The The same direction applied in the Court’s
applicant had criticised the then new Slova- judgment in the case Petrov v. Bulgaria41. In this
kian Government, especially the new politi- case a journalist accused the applicant of (indi-
cal leaders. He referred to the fascist past of rectly) participating in the assassination of a for-
the new Minister for Culture and Education mer chief prosecutor. The national courts did not
and cast doubts on the personal qualities convict the journalist because of his statement.
of the minister as a member of the govern- The Court ruled that the acquittal of the jour-
ment in a democratic state. Although the nalist had not violated Art. 10 ECHR, because
applicant had used harsh words, the Court the applicant’s own freedom of expression was
held that he could draw his statements not at stake. Furthermore, Art. 8 ECHR was not
upon Art. 10 of the Convention, because violated. In several cases concerning complaints
they were based on facts, and were made brought under Art. 10 ECHR the Court ruled
in good faith and in pursuit of a legitimate that a person’s reputation is protected by Art. 8
aim. Furthermore they were made in a very ECHR as part of the right to respect for “private
political context and were crucial for the de- life”. The protection of private life has to be bal-
velopment of Slovakia. anced against the right to freedom of expres-
An important attribute of a democratic sion, enshrined in Art. 10. The Court ruled in
society is a free political debate. There have this case that the national courts had balanced,
to be very strong reasons to justify restrictions in conformity with Convention standards, the
and states are given little scope for these. In applicant’s interest in protecting his reputation
other regards, there is a danger that respect against the paramount public interest in the re-
for freedom of expression is affected in gen- spective matters.
eral in the state concerned.
There are also cases in which the Court f) “Hate speech” and violence
considered that Art. 10 cannot take prece- The Court concedes a wider margin of appre-
dence over conflicting rights, such as the rep- ciation to the State authorities examining the
utation of a politician. In 2008, the Court had need for interference, where such remarks
to decide in a case40 that dealt with a journal- constitute an incitement to violence against
ist who had alleged that a politician had been an individual or a public official or a sector
active in the secret police securitate. of the population.42 It considers one of the
In this case, there was no factual basis at principal characteristics of democracy to be
all and additionally the statements were very

41
Petrov v. Bulgaria, judgment of 2 November 2010, Appl.
39
Feldek v. Slovakia, judgment of 12 July 2001, Appl. 29032/95. 27103/04.
40
Petrina v. Romania, judgment of 14 October 2008, Appl. 42
Ceylan v. Turkey, judgment of 8 July 1999, Appl. 23556/94, § 34;
78060/01. Gerger v. Turkey, judgment of 8 July 1999, Appl. 24919/94, § 48.
European Media Law and Policy Framework 15

the possibility it offers of resolving a coun- ful demonstrations – which limited their
try’s problems through dialogue, without potential impact on “national security”
having recourse to violence.43 It is necessary and “public order” – they cannot be inter-
in a democratic society to restrict such hate preted as a call for violence or an uprising.
speech which constitutes incitement to vio- The Court stresses, however, that whilst
lence, hostility or hatred, because violence as this assessment should not be taken as an
a means of political expression is the antith- approval of the tone of these slogans, it
esis of democracy; irrespective of the ends to must be recalled that Article 10 protects
which it is directed, incitement to it will tend not only the substance of the ideas and
to undermine democracy and it is intrinsically information expressed, but also the form
inimical to the ECHR. Unlike the advocacy of in which they are conveyed.”45
opinions on the free marketplace of ideas, It also said that the applicants did not ad-
incitement to violence is the denial of a dia- vocate violence, injury or harm to any person
logue, the rejection of the testing of different by these slogans and the applicants’ conduct
thoughts and theories in favour of a clash of could not be considered to have had an im-
might and power. It should not fall within the pact on “national security” or “public order”
ambit of Art. 10 ECHR, whereas a distinction by way of encouraging the use of violence or
between this and pure strong protest refer- inciting others to armed resistance or rebellion.
ring to a difficult political situation has to be Consequently, there has been a violation of the
made.44 However, there could be the risk that applicant’s right to freedom of expression.
media might become “a vehicle for the dis- When examining whether there has been
semination of hate speech and the promotion a violation of Art. 10 ECHR, the ECtHR reverts
of violence”. to the definition of the term “hate speech”
These different approaches show that it by the Appendix to the Recommendation No.
is important to take the degree of aggressive R (97) 20.46 “Hate speech” has to be under-
tone of a statement and its circumstances into stood as
account, and whether an inhibition is neces- “covering all forms of expression which
sary within the meaning of democracy that spread, incite, promote or justify racial ha-
benefits from free circulation of information tred, xenophobia, anti-Semitism or other
and opinions. forms of hatred based on intolerance,
This is also shown by another example of including: intolerance expressed by ag-
the jurisdiction of the Court. The applicants gressive nationalism and ethnocentrism,
of this case had shouted some slogans with a discrimination and hostility against minor-
violent tone during a demonstration. Regard- ities, migrants and people of immigrant
ing the case as a whole the Strasbourg Court origin.”
found that Besides its own case-law, the scrutiny by
“having regard to the fact that these are the Court involves the principles of this Rec-
well-known, stereotyped leftist slogans ommendation and its Appendix, while the
and that they were shouted during law- judges consider both of them as
“guidelines designed to underpin govern-

43
United Communist Party of Turkey and Others v. Turkey,
judgment of 30 January 1998, Appl. 19392/92, § 57. 45
Gül and other v. Turkey, judgment of 8 June 2010, Appl.
44
Karatas v. Turkey, judgment of 8 July 1999, Appl. 23168/94, dis- 4870/02, § 41.
senting opinion of the judges Wildhaber, Pastor Ridruejo, Costa and 46
Recommendation No. R (97) 20 of the Committee of Ministers to
Baka. Member States on “hate speech”, adopted on 30 October 1997.
16 The Media in South-East Europe

ments’ efforts to combat all hate speech, son and human dignity and to avoid pro-
for example the setting up of an effective grammes associating violence and sex; as
legal framework consisting of appropri- far as possible, these criteria should also
ate civil, criminal and administrative law be taken into account in the field of the
provisions for tackling the phenomenon. new information technologies;
It proposes, among other measures, that 18. encourage the media to participate in in-
community-service orders be added to the formation campaigns to alert the general
range of possible penal sanctions and that public to violence against women;
the possibilities under the civil law be en- 19. encourage the organisation of training
hanced, for example by awarding compen- to inform media professionals and alert
sation to victims of hate speech, affording them to the possible consequences of pro-
them the right of reply or ordering retrac- grammes that associate violence and sex;
tion. Governments should ensure that, 20. encourage the elaboration of codes of
within this legal framework, any interfer- conduct for media professionals, which
ence by the public authorities with freedom would take into account the issue of vio-
of expression is narrowly circumscribed on lence against women and, in the terms
the basis of objective criteria and subject to of reference of media watchdog organ-
independent judicial control.”47 isations, existing or to be established,
The position contrary to violence in the encourage the inclusion of tasks dealing
media of the Council of Europe is reflected in with issues concerning violence against
several further legal acts. women and sexism.”
With regard to the fact that Art. 10 ECHR Concerning videogames the Commeettee
also protects opinions that shock or disturb, of Ministers of the Council of Europe rec-
Recommendation No. R (97) 1948 says that ommends in the Recommendation No. R
“[h]owever, certain forms of gratuitous por- (92) 1950 that the governments of Mem-
trayal of violence may lawfully be restrict- ber States:
ed, taking into account the duties and re- "Review the scope of their legislation in
sponsibilities which the exercise of freedom the fields of racial discrimination and ha-
of expression carries with it.” tred, violence and the protection of young
Thus it sets some guidelines for measures people, in order to ensure that it applies
to restrict portrayals of violence in the media. without restriction to the production and
Moreover the protection of women against distribution of video games with a racist
violence shall be improved. According to the content;
Appendix of the Recommendation Rec (2002) Treat video games as mass media for the
549, the Member States should: purposes of the application inter alia of
“17. encourage the media to promote a Recommendation No. R (89) 7 concerning
non-stereotyped image of women and principles relating to the distribution of vid-
men based on respect for the human per- eogames having a violent, brutal or porno-
graphic content, and of the Convention on
47
Gündüz v. Turkey, judgment of 4 December 2003, Appl. Transfrontier Television (ETS 132)."
35071/97, § 22.
48
Recommendation No. R (97) 19 of the Committee of Ministers to
Member States on the portrayal of violence in the electronic media,
adopted on 30 October 1997.
49
Recommendation No. Rec (2002) 5 of the Committee of Min- 50
Recommendation No. R (92) 19 of the Committee of Minis-
isters to Member States on the protection of women against vio- ters to Member States on video games with a racist content,
lence, adopted on 30 April 2002. adopted on 19 October 1992.
European Media Law and Policy Framework 17

Additionally, with regard to the fact that cordingly, the possible threat for indepen-
the media can make a positive contribution dence of national justice are very important
to the fight against intolerance, Recommen- matters in a democratic society, the public has
dation No. R (97) 2151 includes professional a legitimate interest to know about and that
practices which are conducive to the promo- they are issues of public interest. These mat-
tion of a culture of tolerance. ters are so important in a democratic society
that they outweigh the interest in maintaining
g) Criticism by civil servants public confidence in the Prosecutor General’s
In the following there is the question as to Office. It emphasised that the special situa-
whether a civil servant could be deprived of tion in Moldova supported this view in the
their freedom of expression just because of given case. International non-governmental
their status. organisations had expressed concern about
The responsibility of a state under the the breakdown of the separation of powers
Convention may arise for acts of all its organs, and the lack of judicial independence. Re-
agents and servants. Thus, the obligations of garding the severe sanction in the form of a
a Contracting Party under the Convention dismissal and the danger of a potential chill-
can be violated by any person exercising an ing effect on an open discussion of topics of
official function vested in them.52 public concern, the Court found that this in-
Therefore, a judge is not hindered from terference could not be considered as “neces-
expressing his opinion among his responsi- sary in a democratic society”.
bilities. Reactions to this as interference by a
State authority in the form of acting by supe- h) Statements concerning religious beliefs
riors can give rise to a breach of Art. 10 ECHR, Another important issue addresses state-
unless it can be shown that it was in accor- ments concerning religious beliefs. In its judg-
dance with the aims laid out in its para. 2. ment Kokkinakis v. Greece the ECtHR pointed
In 2008, the ECtHR decided53 a case which out that
concerned an informant, head of the Press De- “freedom of thought, conscience and reli-
partment of the Moldovan Prosecutor General’s gion, which is safeguarded under Article 9
Office. The informant handed over two secret of the Convention, is one of the founda-
letters to a newspaper without consulting the tions of a 'democratic society' within the
heads of other departments of the Prosecutor meaning of the Convention. It is, in its reli-
General’s Office and, therefore, was dismissed, gious dimension, one of the most vital ele-
as his behaviour was considered as a breach of ments that go to make up the identity of
the press department’s internal regulations. It believers and their conception of life.” 54
was revealed that the Deputy Speaker of Par- The protection of the religious feelings of
liament had exercised undue pressure on the other people can be a legitimate aim in the
Public Prosecutor’s Office. meaning of the ECHR. Freedom of thought
The ECtHR ruled that pressure by Parlia- and freedom of expression need to be coun-
ment put on the Public Prosecutor and, ac- terbalanced in the case of conflicts.
In this context the ECtHR said that
“those who choose to exercise the free-
51
Recommendation No. R (97) 21 of the Committee of Min-
isters to Member States on the media and the promotion of a
culture of tolerance, adopted on 30 October 1997.
52
Wille v. Liechtenstein, judgment of 28 October 1999, Appl.
28396/95, §§ 42 and 46. 54
Kokkinakis v. Greece, judgment of 25 May 1993, Appl.
53
Guja v. Moldova, judgment of 12 February 2008, Appl. 14277/04. 14307/88, § 31.
18 The Media in South-East Europe

dom to manifest their religion, irrespec- regulating freedom of expression in relation

tive of whether they do so as members of to matters liable to offend intimate personal
a religious majority or a minority, cannot convictions within the sphere of morals or, es-
reasonably expect to be exempt from all pecially, religion:
criticism. They must tolerate and accept “This does not of course exclude final Eu-
the denial by others of their religious be- ropean supervision. Such supervision is all
liefs and even the propagation by others the more necessary given the breadth and
of doctrines hostile to their faith.”55 open-endedness of the notion of blasphe-
But a distinction has to be made between my and the risks of arbitrary or excessive
“provocative opinions” and abusive attacks interferences with freedom of expression
on one’s religion56, because under the guise of action taken against al-
“whoever exercises the rights and freedoms legedly blasphemous material. In this regard
enshrined in the first paragraph of Article the scope of the offence of blasphemy and
10 undertakes ‘duties and responsibilities’. the safeguards inherent in the legislation are
Amongst them – in the context of religious especially important. Moreover the fact that
opinions and beliefs – may legitimately be the present case involves prior restraint calls
included an obligation to avoid as far as for special scrutiny by the Court.”59
possible expressions that are gratuitously
offensive to others and thus an infringe- i) News reporting based on interviews
ment of their rights, and which therefore The press benefits from the need for free
do not contribute to any form of public de- circulation of views and for open public de-
bate capable of furthering progress in hu- bate. Any opinions and information that are
man affairs.”57 expressed in this context are to be considered
However, the manner in which religious part of a debate on questions of public inter-
feelings are at stake is a matter which may est, meaning that there is little scope for re-
engage the responsibility of the State, notably strictions under Art. 10. Therefore, a journal-
its responsibility to ensure the peaceful enjoy- ist is not hampered from asking captious or
ment of the right. pointed questions or making such statements.
Thus, He/She can only be convicted of defamation,
“it may be considered necessary in certain if there are strong and sufficient reasons.
democratic societies to sanction or even At the same time news reporting based
prevent improper attacks on objects of on interviews is one of the most essential
religious veneration, provided always that means of how the press can safeguard its ele-
any ‘formality’, ‘condition’, ‘restriction’ or mentary role as a “public watchdog”. As long
‘penalty’ imposed be proportionate to the as rights of other people are not outweigh-
legitimate aim pursued.”58 ing, or as long as there are no other strong
The Court allows a wider margin of ap- and sufficient reasons, a journalist must not
preciation to the Contracting States when be punished for assisting in the dissemina-
tion of statements made by another person,
for example in an interview. Otherwise public
55
Otto-Preminger Institut v. Austria, judgment of 20 Septem-
ber 1994, Appl. 13470/87, § 47.
56
See I.A. v. Turkey, judgment of 13 September 2005, Appl.
42571/98.
57
Otto-Preminger Institut v. Austria, op. cit., § 49. 59
Wingrove v. the U. K., op. cit., § 58; Observer and Guardian v.
58
Otto-Preminger Institut v. Austria, op. cit., § 49. the U.K., judgment of 26 November 1991, Appl. 13585/88, § 60.
European Media Law and Policy Framework 19

discussion on topics of general interest would sary in a democratic society. But there are also
seriously be hampered.60 dangers of such a practice thinkable.64
It should be added that the Court also ruled61 Therefore, it is questionable as to whether
that there is no general requirement for jour- and to what extent States are allowed to re-
nalists to systematically and formally distance strain journalistic publication and distribution.
themselves from the content of a quotation Because a careful scrutiny becomes impor-
that might insult or provoke others or damage tant as far as the press is concerned, and news
their reputation. This is not reconcilable with the is a perishable commodity and delaying its
press role of distributing opinions and ideas. publication, even for a short period, may well
According to the Court, the reputation of deprive it of all its value and interest65, States
the affected person can be a legitimate aim must put forward strong and replicable rea-
and interference with the freedom of expres- sons to the ECtHR for such measures to stand,
sion can be proportionate if there is an “ob- whereby their margin of appreciation is limited
jective link” between the impugned state- as far as the freedom of press is at stake.66
ment and the person suing in defamation as In the case Ürper and others four Turk-
a requisite element: ish newspapers were suspended for periods
“Mere personal conjecture or subjective ranging from 15 days to a month in respect
perception of a statement as defamatory of various news reports and articles. These
does not suffice to establish that the per- restraints were not imposed on particular ar-
son was directly affected by the publica- ticles, but on the future publication of entire
tion. There must be something in the cir- newspapers, whose content was unknown
cumstances of a particular case to make at the time of the national court’s decisions.
the ordinary reader feel that the statement Therefore, these applicants’ cases were dis-
reflected directly on the individual claimant tinguishable from the earlier case of Observer
or that he was targeted by the criticism.”62 and Guardian67. The ECtHR found that
These principles also apply in the sphere “the preventive effect of the suspension orders
of television and radio broadcasting.63 entailed implicit sanctions on the applicants
to dissuade them from publishing similar ar-
j) Restrictions on journalistic publication and ticles or news reports in the future, and hin-
distribution der their professional activities. [...] Less dra-
Freedom of expression does not prohibit in conian measures could have been envisaged,
terms the imposition of prior restraints on such as the confiscation of particular issues
publications. This is conveyed by words like of the newspapers or restrictions on the pub-
“prevention” or “conditions” used by Art. lication of specific articles.”68
10(2) ECHR. According to that, an obligation It concluded that the national courts had
to register a title of a newspaper is not a vio- overstepped their margin of appreciation and
lation as such. It is a legitimate interference if that they had
it is prescribed by law and additionally neces-

64
Observer and Guardian v. the U.K., op. cit., § 60.
60
Jersild v. Denmark, op. cit., § 35. 65
Observer and Guardian v. the U.K., op. cit., § 60.
61
Thoma v. Luxembourg, judgment of 29 March 2001, Appl. 66
Editions Plon v. France, judgment of 18 May 2004, Appl.
38432/97, § 64. 58148/00, § 44.
62
Dyuldin and Kislov v. Russia, judgment of 31 July 2007, Appl. 67
See footnote 59.
25968/02, § 44. 68
Ürper and Others v. Turkey, judgment of 20 October 2009,
63
Cf. Filatenk v. Russia, judgment of 6 December 2007, Appl. Appl. 14526/07, § 43; see, mutatis mutandis: Demirel and Ateş
73219/01, § 45. v. Turkey, judgment of 9 December 2008, Appl. 11976/03, § 28.
20 The Media in South-East Europe

“unjustifiably restricted the essential role term is necessary. The actual provision of
of the press as a public watchdog in a information to journalists can constitute
democratic society. The practice of ban- an action on the side of the source, for
ning the future publication of entire peri- example when a source calls or writes to a
odicals went beyond any notion of ‘neces- journalist or sends to him or her recorded
sary’ restraint in a democratic society and, information or pictures. Information shall
instead, amounted to censorship.”69 also be regarded as being ‘provided’ when
In conclusion, a violation of Art. 10 ECHR a source remains passive and consents to
was given. the journalist taking the information, such
as the filming or recording of information
k) The protection of journalistic sources with the consent of the source.”
The protection of journalistic sources is anoth- Using these principles, the Court made
er important issue addressed by Art. 10 ECHR. the following assessments:
“Protection of journalistic sources is one of
aa) Revealing the identity of an informant the basic conditions for press freedom. (...)
An interference can be given by a disclosure Without such protection, sources may be
order or the requirement to reveal the identity deterred from assisting the press in inform-
of the source. Such measures can be justified ing the public on matters of public inter-
if there is a legitimate interest in the disclosure est. As a result the vital public watchdog
which clearly outweighs the public interest in the role of the press may be undermined and
non-disclosure. The necessity of the disclosure the ability of the press to provide accurate
is identified as responding to a pressing social and reliable information may be adversely
need, while the Member States enjoy a certain affected. Having regard for the importance
margin of appreciation in assessing this need. In of the protection of journalistic sources
this context the ECtHR refers70 to Recommenda- for press freedom in a democratic society
tion Rec (2000) 7 “on the right of journalists not and the potentially chilling effect an order
to disclose their sources of information”71, es- of source disclosure has on the exercise of
pecially principle 3, stated therein. Furthermore, that freedom, such a measure cannot be
the Court makes use of the explanatory notes compatible with Article 10 of the Conven-
for the precise application of the Recommenda- tion unless it is justified by an overriding
tion. As regards the term “sources”, the expla- requirement in the public interest.” 72
nation reads as follows: “Far-reaching measures cannot but dis-
“Source: courage persons who have true and ac-
17. Any person who provides information curate information relating to wrongdo-
to a journalist shall be considered as his ing of the kind here at issue from coming
or her ‘source’. (...) Journalists may receive forward and sharing their knowledge with
their information from all kinds of sourc- the press in future cases.” 73
es. Therefore, a wide interpretation of this Hence, intensive measures for a certain
time period can be proportional, but there
has to be a grave sufficient interest in know-
69
Ürper and Others v. Turkey, op. cit., § 44.
70
Financial Times Ltd. and others v. the U.K., judgment of 15
December 2009, Appl. 821/03, § 36; Voskuil v. the Nether-
lands, judgment of 22 November 2007, Appl. 64752/01, § 43.
71
Recommendation Rec (2000) 7 of 8 March 2000 of the Com- 72
Goodwin v. the U.K., op. cit., §§ 39 and 40; Voskuil v. the
mittee of Ministers to Member States on the right of journalists Netherlands, op. cit.,§ 65.
not to disclose their sources of information. 73
Voskuil v. the Netherlands, op. cit., § 71.
European Media Law and Policy Framework 21

ing the identity of the source, which overrides mensurate with the importance of the
the interest in concealing it. principle at stake.(...) First and foremost
among these safeguards is the guaran-
bb) Searches at a journalist’s home and tee of review by a judge or other inde-
workplace pendent and impartial decision-making
The ECtHR ruled in Roemen and Schmit v body. (...) The requisite review should be
Luxembourg that searches carried out at a carried out by a body separate from the
journalist’s home and workplace to ascertain executive and other interested parties,
whether there had been a criminal offence, invested with the power to determine
i.e. a breach of professional confidence, are whether a requirement in the public in-
very intensive measures. Such measures can terest overriding the principle of protec-
only be legitimate if there are no alternative tion of journalistic sources exists prior to
ways to obtain the information or, rather, the handing over of such material and to
there have to be very strong reasons to justify prevent unnecessary access to informa-
such searches.74 The Court emphasised that tion capable of disclosing the sources’
there is a fundamental difference between identity if it does not.(...) The decision to
this case and Goodwin v UK.75 In the latter be taken should be governed by clear cri-
case, the journalist was just required to re- teria, including whether a less intrusive
veal the identity of his informant, whereas measure can suffice to serve the overrid-
in the instant case searches were carried out ing public interests established.”77
at the first applicant’s home and workplace, This decision was entrusted to the pub-
which formed a more drastic measure. This is lic prosecutor. According to the Court, this
because investigators who raid a journalist’s person cannot be seen as impartial like an
workplace have access to all the documenta- independent judge. Also, the involvement of
tion held by the journalist and thus they have the investigating judge in this case could not
very wide investigative powers. Such satisfy the ECtHR, because he only had a sup-
“limitations on the confidentiality of jour- porting role.
nalistic sources call for the most careful A law which does not provide regulations
scrutiny by the Court.”76 which meet these requirements has a defi-
cient quality. Hence, an interference with the
cc) Procedural guarantee freedom of expression based on such a law is
Interferences with the right of protection of not prescribed by law, and thus it is a violation
sources must be attended with legal procedur- of Art. 10 ECHR.78
al safeguards. The ECtHR (again) refers to the
above-mentioned Recommendation Rec (2000) l) Publishing of confidential documents
7 in the Sanoma Uitgevers case demanding that A further question is whether a journalist is
“any interference with the right to pro- entitled to receive and publish confidential
tection of such sources must be attended documents. An interference, for example by
with legal procedural safeguards com- a penalty imposed for such an action, can be
justified by the legitimate aim of preventing

74
Roemen and Schmit v. Luxembourg, judgment of 25 Febru-
ary 2003, Appl. 51772/99, § 56. 77
Sanoma Uitgevers B.V. v. the Netherlands, op. cit., §§ 88,
75
Goodwin v. the U.K., op. cit. 90 and 92.
76
Roemen and Schmit v. Luxembourg, op. cit., § 57. 78
Sanoma Uitgevers B.V. v. the Netherlands, op. cit., §§ 93 ff.
22 The Media in South-East Europe

the “disclosure of information received in con- to reproduce such documents to ensure

fidence”, as mentioned in Art. 10(2) ECHR. credibility and reiterates that it protects
Furthermore, journalists exercising the free- journalists’ right to divulge information
dom of expression undertake “duties and re- on issues of general interest provided that
sponsibilities”, the Court regularly emphasises. they are acting in good faith and on an ac-
Hence, even with regard to the vital role of the curate factual basis and provide “reliable
press, journalists cannot be released from their and precise” information in accordance
duty to obey the ordinary criminal law. with the ethics of journalism.”82
However, Where this is given in connection with the
“press freedom assumes even greater im- specific case, the interest of the public in ob-
portance in circumstances in which State taining information is overweighing, even if the
activities and decisions escape democratic publication of some information is prohibited.
or judicial scrutiny on account of their The same issue is dealt with by a case83 in
confidential or secret nature”79, which a radio station was sanctioned for broad-
because the public rely on the press as casting a telephone conversation of a politician,
their most important purveyor of information which was unlawfully obtained. Since the jour-
concerning these matters to monitor the ac- nalists of the station were acting in good faith
tions of the government. and the reputation of the politician was not tar-
Therefore, the conviction of a journalist for nished, their being sanctioned was a violation of
disclosing information considered to be confi- their right of freedom of expression.
dential or secret may have the effect of a censor- With regard to all of these issues men-
ship and discourage those working in the media tioned above one may refer to the Declaration
from informing the public, that the press may by the Committee of Ministers on the protec-
no longer be able to play its vital role as “public tion and promotion of investigative journal-
watchdog”, and that the ability of the press to ism84, which, for example, pursues the goal to
provide accurate and reliable information may be protect and facilitate the work of the journal-
adversely affected.80 Consequently, a fair balance ists by the requirement of ensuring the per-
between interest in the public’s being informed sonal safety of media professionals and their
and the “duties and responsibilities”of the press access to information.
could justify the publication of such documents. The ECtHR ruled in Poyraz v Turkey that
In this context, the ECtHR reviews with the communication or publication of con-
great scrutiny whether the objective of pro- fidential material is not covered by Art. 10
tecting fiscal confidentiality, for example, con- ECHR.85 Regarding the privileged position of
stitutes a relevant and sufficient justification public officers (in this case the chief inspector
with regard to the interference with the right of the Ministry of Justice) benefiting from the
of freedom of expression.81 access to the media, they must exercise their
It declares that freedom of expression in a restrained manner
“in essence, that Article leaves it for journal-
ists to decide whether or not it is necessary
82
Fressoz and Roire v. France, op. cit., § 54.
83
Radio Twist S.A. v. Slovakia, judgment of 19 December 2006,
Appl. 62202/00.
84
Declaration by the Committee of Ministers on the protec-
79
Stoll v. Switzerland, judgment of 10 December 2007, Appl. tion and promotion of investigative journalism, adopted on
69698/01, § 110. 26.09.2007.
80
Stoll v. Switzerland, op. cit., § 110 and 154. 85
Poyraz v. Turkey, judgment of 7 December 2010, Appl.
81
Fressoz and Roire v. France, op. cit., §§ 52 and 53. 15966/06.
European Media Law and Policy Framework 23

(“faire montre de retenue”) to avoid an im- interference was therefore “necessary in a

balance in relation to “ordinary citizens” who democratic society”.
have limited access to the media.
Besides, there is the Recommendation No. aa) Election time
R (96) 486 which provides to especially protect In the Bowman case89, the politician Bowman
journalistic work also in situations of conflict was charged with an offence because he had
and tension. distributed more than one million leaflets. The
Court held that this measure was an interfer-
m) Politicians entitled by Art. 10 ECHR ence with the freedom of expression of the
Freedom of expression is not only a right that politician, but that it did pursue the legitimate
may conflict with the reputation of politicians, aim of protecting the rights of others, namely
but also plays a vital role in political actions in the candidates for election and the electorate.
general. For example, politicians can refer to It considered that this action was also
this right with regard to their speeches. necessary in a democratic society because
“In a democracy, Parliament or such com- free elections, particularly freedom of political
parable bodies are the essential fora for debate – besides the freedom of expression –
political debate. Very weighty reasons must form the bedrock of any democratic system.
be advanced to justify interfering with the These two rights determine each other.
freedom of expression exercised therein.”87 The Court notes that
Nevertheless, it is possible that conflicting “freedom of expression is one of the 'con-
rights of others justify a restriction of their ditions' necessary to 'ensure the free ex-
freedom of expression. In 1988, a politician pression of the opinion of the people in
reacted to an article in a local newspaper the choice of the legislature.”90
about him and his actions in the past by call- For this reason, it is particularly important
ing this work “Nazi-Journalism”. Thereupon, in the period preceding an election that opin-
an injunction was issued against him prohib- ions and information of all kinds are permitted
iting him from repeating the statement. The to circulate freely. However, even at the time of
Court88 ruled that there was no violation of elections, these two rights can conflict, mean-
Art. 10. Although it held that the article itself ing that certain restrictions, which usually would
was defamatory, it had particular regard to not be accepted as compatible with Art. 10, can
the special stigma that are attached to activi- be required. It can be concluded that the states
ties inspired by national-socialist ideas. Be- are free within their margin of appreciation to
sides, it took into consideration that, accord- rule the elections to guarantee free elections as
ing to Austrian legislation, it is a criminal of- a democratic state’s need, but they are obliged
fence to perform such activities and that the to exactly analyse if there are other measures
applicant was only prohibited from repeating thinkable to reach this aim, and avoid total bar-
his statement or the making of similar state- riers, such as in the Bowman case.
ments. He had still been entitled to express
his opinion in other words or ways. Such an bb) Restrictions on political activities
Another example of national measures re-
86
Recommendation No. R (96) 4 of the Committee of Ministers stricting the actions of a politician are rules
to Member States on the protection of journalists in situations
of conflict and tension, adopted on 3 May 1996. 89
Bowman v. the UK, judgment of 19 February 1998, Appl.
87
Jerusalem v. Austria, op. cit., § 40. 24839/94.
88
Andreas Wabl v. Austria, judgment of 21 March 2000, Appl. 90
Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2
24773/94. March 1987, Appl. 9267/81, § 54.
24 The Media in South-East Europe

that restrict the participation of a substantial an abuse of power by certain local govern-
number of local government officers in certain ment officers which was, in the view of the
kinds of political activities. In its judgment91, ECtHR, a sufficient reason to establish a press-
the Court held that this interference with Art. ing social need.
10 can be justified by the legitimate aim of In 1999, a similar case92 was decided. In
the protection of an effective democracy. Hungary, a law was enacted which prohibited
However, this aim cannot eo ipso suf- members of the armed forces, the police and
fice as a justification of interference with security services from joining any political par-
the rights guaranteed by Art. 10. Otherwise, ty and from engaging in any political activity.
both the interests served by democratic insti- The Court agreed that there was an interfer-
tutions such as local authorities and the need ence with the right of freedom of expression,
to make provision to secure their proper but found that having a politically neutral po-
functioning – where this is considered neces- lice force is a legitimate aim. According to the
sary to safeguard those interests – would be Court, the Hungarian state could also restrict
overlooked. the freedom of the police with regard to their
“The Court recalls in this respect that democ- margin of appreciation and their historical
racy is a fundamental feature of the Euro- background.
pean public order. This is apparent from the The Court also stated that an absolute
Preamble to the Convention, which estab- ban is not compatible with Art. 10 ECHR and
lishes a very clear connection between the that policemen are entitled to
Convention and democracy by stating that “undertake some activities enabling them
the maintenance and further realisation of to articulate their political opinions and
human rights and fundamental freedoms preferences.”
are best ensured on the one hand by an
effective political democracy and on the 1.3 Interferences according to Art. 10 ECHR
other by a common understanding and
a) State measures
observance of human rights.”
According to Art. 10(2) ECHR, interferences
There is also a bond of trust between
are possible by state measures in the form of
elected council members and the local gov-
formalities, conditions, restrictions or penalties.
ernment officers. The former bank on the loy-
States can interfere with the rights of Art. 10
alty and support of the impartial officers. Be-
ECHR if they enact a law which affects the legal
sides, there is the expectation of the citizens
sphere of the citizens. The same could apply to
that the council members they have voted
administrative action by state authorities as well
for behave in accordance with their election
as national court decisions, which confirm the
pledges. Therefore, the rights of the council
legality of such action, based on national law.
members and the electorate can be consid-
ered as legitimate aims within the meaning b) Positive obligations
of Art. 10(2). The Court examined whether Recently, the ECtHR again dealt with the ques-
a pressing social need exists and whether the tion as to whether Art. 10 ECHR creates positive
restrictions were proportionate to the pur- obligations on Member States to take measures
sued aim. In the present case, there had been protecting the right to freedom of expression.

91
Ahmed and Others v. the UK, judgment of 2 September 92
Rekvény v. Hungary, judgment of 20 May 1999, Appl.
1998, Appl. 22954/93, § 52. 25390/94.
European Media Law and Policy Framework 25

The case which the judges had to decide tion, even in the sphere of relations be-
upon was about a journalist who was sen- tween individuals.”94
tenced because of his critical stance on so- Therefore, the states can be responsible for
ciety. A short time later he was murdered by a breach of Article 10 even by a private person,
nationalist extremists. The national authori- if they do not attend to their duties. The sub-
ties did not take any safeguard measures al- ject of a decision by the ECtHR is the domestic
though there were concrete indications of an court’s ruling, which judges the national litiga-
attempt on the life of the journalist. tion between private individuals. Thus, it can
In this context, the Strasbourg Court stressed that be assumed that there is not a direct but at
“the states are required to create a favour- least an indirect applicability of the Convention
able environment for participation in pub- between private individuals. For example, the
lic debate by all the persons concerned, Court affirmed such an indirect applicability to
enabling them to express their opinions relations between employer and employee.95
and ideas without fear.”93 In fulfilling their responsibilities the States
It drew the conclusion that this require- especially have to ensure that the freedom
ment leads to a “positive obligation” to pro- of expression of journalists working in public
tect the right to freedom of expression against broadcasting companies is respected, because
attack, also by private individuals, whereas it “subject to the conditions set out in Article 10
also clarified that a potential failure can be § 2, journalists have a right to impart infor-
vindicated by a “pressing social need”. mation. The protection of Article 10 extends
Consequently, states are not only obliged to employed journalists and other media em-
to refrain from interferences with the rights ployees. An employed journalist can claim to
guaranteed by Art. 10 ECHR, but also to be be directly affected by a general rule or policy
active in protecting these ones subject to applied by his employer which restricts jour-
the limits referred to in paragraph 2 of Art. nalistic freedom. A sanction or other measure
10 ECHR. taken by an employer against an employed
journalist can amount to an interference with
c) “Third-party applicability” freedom of expression.”96
There is the question as to whether an inter- Therefore, interferences are possible, if
ference is only thinkable by means of a con- there is a policy of restricting an open discus-
tracting state or also by private individuals. sion or the expression of several opinions as,
It has not been conclusively clari- for example, they were considered to be dis-
fied whether the rights of the Convention turbing or politically sensitive.97
have a so-called “third-party applicability” In this context, the Court had to decide a
(Drittwirkung), but in any event the Contract- case98 in which a journalist criticised the program-
ing States have positive obligations to ensure ming changes of a public State-owned broad-
compliance with these rights, because, ac-
cording to the Court,
“the genuine and effective exercise of
94
Özgür Gündem v. Turkey, judgment of 16 March 2000, Appl.
freedom of expression under Article 10 23144/93, § 43.
may require positive measures of protec-
95
Fuentes Bobo v. Spain, judgment of 29 February 2000, Appl.
39293/98.
96
Manole and others v. Moldova, op. cit., § 103; Fuentes Bobo
v. Spain, op. cit. § 38.
97
Manole and others v. Moldova, op. cit., § 106.
93
Dink v. Turkey, judgment of 14 September 2010, Appl. 98
Wojtas-Kaleta v. Poland, judgment of 16 July 2009, Appl.
2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 137. 20436/02.
26 The Media in South-East Europe

casting company. Regarding their own finding scribed by law” and therefore be a legitimate
that employees owe to their employer a duty of restriction of Art. 10 ECHR. This is the case if
loyalty and discretion99, the judges focused on the aim, which the measure claims to pursue,
the question of where the limits of loyalty of jour- is legitimate according to Art. 10(2) ECHR and
nalists working for such companies are. is “necessary in a democratic society”.
The Court emphasised that
“where a State decides to create a public a) Prescription by law
broadcasting system, the domestic law and Concerning the expression “prescribed by
practice must guarantee that the system law” the ECtHR declares, firstly, that the
provides a pluralistic audiovisual service. impugned measure should have some ba-
(...) Under the applicable legislation the sis in domestic law. The term “law” in-
public television company was charged cludes both “written law”, encompassing
with a special mission including, among enactments of lower ranking statutes and
other things, assisting the development of regulatory measures taken by professional
culture, with special emphasis on Polish in- regulatory bodies under independent rule-
tellectual and artistic achievements.”100 making powers delegated to them by Par-
Also as an employee of a public television liament, and unwritten law. Furthermore
company, a journalist has the task to impart “law” must be understood to include both
information and ideas by his own. Therefore, statutory law and “judge-made law”.101
the obligation of discretion and constraint Besides,
cannot be said to apply with equal force to “it also refers to the quality of law, which
journalists. Criticising the programme has requires that legal norms should be acces-
a cultural relevance and, thus, it is a matter sible to the person concerned, their con-
of public interest, which a journalist has the sequences foreseeable and their compat-
right and the obligation to comment on. The ibility with the rule of law ensured.”102
obligation of loyalty must be weighed against “Firstly the law must be adequately ac-
this as well as against the public character of cessible: the citizen must be able to have
the broadcasting company when examining an indication that is adequate in the cir-
whether there is a pressing social need that cumstances of the legal rules applicable
can justify an interference as necessary in a to a given case. Secondly a norm cannot
democratic society. be regarded as a 'law' unless it is formu-
In conclusion, within their margin of ap- lated with sufficient precision to enable
preciation the States always are called upon the citizen to regulate his conduct: he
to find a proportionate relation between the must be able – if need be with appropri-
individual rights guaranteed by Art. 10 and its ate advice – to foresee, to a degree that
institutional aspects. is reasonable in the circumstances, the
consequences which a given action may
1.4 Legality of interferences entail. These consequences need not
be foreseeable with absolute certainty:
Although the measure in question could in- experience shows this to be unattain-
terfere with Art. 10 ECHR, it could be “pre-
101
Sanoma Uitgevers B.V. v. the Netherlands, judgment of 14
99
Vogt v. Germany, judgment of 26 September 1995, Appl. September 2010, Appl. 38224/03, § 83.
17851/91, § 53. 102
See among others: Association Ekin v. France, judgment of
100
Wojtas-Kaleta v. Poland, op. cit., § 47. 17 July 2001, Appl. 39288/98, § 44.
European Media Law and Policy Framework 27

able. Again, whilst certainty is highly able' or desirable and that it implies the
desirable, it may bring in its train exces- existence of a 'pressing social need'.”105
sive rigidity and the law must be able to It has to satisfy itself that the national au-
keep pace with changing circumstances. thorities applied standards which were in con-
Accordingly, many laws are inevitably formity with the principles embodied in Art.
couched in terms which, to a greater 10, and it determines whether the interfer-
or lesser extent, are vague and whose ence is “proportionate to the legitimate aims
interpretation and application are ques- pursued” and whether the reasons adduced
tions of practice.”103 by the national authorities to justify it are “rel-
For example, the ECtHR found104 that the evant and sufficient”; in this, the background
terms “behaviour contra bonos mores” were to the case submitted to it, particularly na-
so unprecise that it was not apparent to the tional problems, play a role.
applicants or anyone what to do or to refrain “When examining, the Court is faced not
from doing in order to behave lawfully, mean- with a choice between two conflicting
ing an interference by a public authority was principles, but with a principle of freedom
not “prescribed by law”. of expression that is subject to a number
of exceptions which must be narrowly in-
b) Legitimate aim and necessity in a demo- terpreted.”106
cratic society
If the interference is “prescribed by law”, it c) Margin of appreciation
must safeguard one of the legitimate aims When assessing whether the requirements
listed in Art. 10(2) ECHR such as “the interests are met, the national courts may refer to the
of national security”, “territorial integrity or so-called doctrine of the “margin of appre-
public safety”, “the prevention of disorder or ciation”. This means that the states are in a
crime”, “the protection of health or morals”, better position to estimate the particular lo-
“the protection of the reputation or the rights cal circumstances that have an influence on
of others” or “the disclosure of information the (perceived) existence of a pressing social
received in confidence”. need, and, therefore, are to estimate based
With regard to the question, whether the on the content of these requirements.
measure is “necessary in a democratic soci- It is for the national authorities – the
ety”, the ECtHR noted that domestic legislator and the bodies, judicial
“whilst the adjective 'necessary', within amongst others – to make the initial assess-
the meaning of Article 10 para. 2, is not ment of the reality of the pressing social need.
synonymous with 'indispensable', the This margin is not unlimited:
words 'absolutely necessary' and 'strictly “Article 10 para. 2 does not give the
necessary' and, in Article 15 para. 1, the Contracting States an unlimited power of
phrase 'to the extent strictly required by appreciation. The Court, which, [...] is re-
the exigencies of the situation', neither sponsible for ensuring the observance of
has it the flexibility of such expressions as those States’ engagements (Article 19),
'admissible', 'ordinary', 'useful', 'reason- is empowered to give the final ruling on
whether a “restriction” or “penalty” is

103
Sunday Times v. UK, judgment of 26 April 1979, Appl.
6538/74, § 49.
104
Hashman and Harrup v. the U.K., judgment of 25 November 105
Handyside v. the U.K., op. cit., § 48.
1999, Appl. 25594/94. 106
Sunday Times v. the U.K., op. cit., § 65.
28 The Media in South-East Europe

reconcilable with freedom of expression impart – in a manner consistent with its obli-
as protected by Article 10. The domestic gations and responsibilities – information and
margin of appreciation thus goes hand ideas on political issues and on other matters
in hand with European supervision. Such of general interest.
supervision concerns both the aim of the For the examination of the legality of in-
measure challenged and its “necessity”; terferences in this area, this means that con-
it covers not only the basic legislation but flicting rights have to be particularly important
also the decision applying it, even one giv- to outweigh the freedoms of Art. 10, while
en by an independent Court.”107 there have to be exceptional circumstances to
In addition, when exercising its supervi- justify such interferences.
sion, the ECtHR observes the case as a whole,
including the content of a statement and the 1.5 Freedom of information
context in which it was made. It sees its task
not in substituting the national assessment Free public debate does not only depend on
on its own. In fact, it reviews the decisions the protection of the expression of opinions
which the domestic courts delivered pursuant but also on the possibility to receive informa-
to their power of appreciation, and examines tion and ideas to build one’s own opinion.
whether the interference is proportionate to In this context the Committee of Ministers
the aim, and whether the reasons which shall stressed114
justify it are “relevant and sufficient.”108 “that media transparency is necessary to
enable members of the public to form an
d) Public debate opinion on the value which they should
Especially, there is little scope for restrictions give to the information, ideas and opin-
on political speech or on questions of public ions disseminated by the media.”
interest.109 Besides political and social issues, Thus it recommends in the Recommenda-
the ECtHR has also accepted topics related to tion that the Member States shall guarantee or
private corporations and their executives110, promote media transparency as well as to facil-
health and science111, foreign countries112, as itate exchanges of information between Mem-
those relating to the public interest. ber States on this topic. The Appendix of this
The Court113 emphasises that the princi- Recommendation provides several measures
ples mentioned are of particular importance for the states to fulfil the mandate in both the
with regard to the press and carries out a broadcasting and press sector.
careful scrutiny of measures which concern it. Therefore, Art. 10 ECHR protects the right
While the press must not overstep the bounds to receive information, also including the col-
set, inter alia, for “the protection of the repu- lection of information besides very passive
tation of others”, its task is, nevertheless, to reception.115 The ECtHR often reiterates in its
judgments that
107
Handyside v. the U.K., op. cit., § 49. “not only does the press have the task of im-
108
Handyside v. the U.K., op. cit., § 50. parting such information and ideas: the pub-
109
Wingrove v. the U.K., judgment of 25 November 1996,
Appl. 17419/90, § 58. lic also has the right to receive them. Were it
110
See Fressoz and Roire v. France, judgment of 21 January
1999, Appl. 29183/95.
111
See Sunday Times v. UK, op. cit.
112
See Colombani v. France, op. cit. 114
Recommendation No. R (94) 13 of the Committee of Min-
113
Sunday Times v. UK, op. cit., § 65; Lingens vs. Austria, op. isters to Member States on measures to promote Media Trans-
cit., §§ 41ff.; Oberschlick v. Austria (no.2), judgment of 1 July parency, adopted on 22 November 1994.
1997, Appl. 20834/92, § 29. 115
Grabenwarter, ibid., § 23 rec. 6.
European Media Law and Policy Framework 29

otherwise, the press would be unable to play Therefore, the failure by the authorities to
its vital role of ‘public watchdog’.”116 spread information could not be a violation of
It approved the “right of the public to be the right to receive information. These cases
properly informed” and “the public’s right to have to be distinguished from those hindering
be informed of a different perspective.”117 the public from receiving information from in-
In Recommendation Rec(2007)2118 the Com- dependent media that fulfils their task of a
mittee of Ministers recommends – especially by public watchdog, or from freely accessible in-
recalling Art. 10 ECHR (guaranteeing freedom formation resources. In this context, the EC-
of expression and freedom to receive and impart tHR ruled that
information and ideas without interference by “Article 10 prohibits a Government from
a public authority and regardless of frontiers) – restricting a person from receiving infor-
“measures promoting the structural pluralism of mation that others wish or may be willing
the media” by addressing ownership regulation, to impart to him.”121
public service and other media contributing to At a later time, the Court addressed the
pluralism as well as diversity and access regula- issue as to whether the public has a right to
tion and interoperability. Furthermore, the Rec- access public documents. In a case122 where
ommendation addresses “measures promoting a request for access to administrative docu-
content diversity” and describes the content of ments was refused by the authorities, the
information to safeguard “media transparency”. judges explicitly accepted the applicability of
There is the question as to whether and to Art. 10 and further held that this refusal is an
what extent Art. 10 is able to grant a right to re- interference with the right to receive informa-
ceive information that is not generally accessible. tion, which has to meet the requirements of
In former judgments, the Court declared that Art. 10(2). Hence, this right is not an absolute
“article 10 does not confer on the individ- one. The Court emphasises that, as the exer-
ual a right of access to a register contain- cising of this right can violate the right of oth-
ing information on his personal position, ers, the security of the state or public health,
nor does it embody an obligation on the the scope of the right to have access to the
Government to impart such information respective information is limited.123
to the individual”119 Moreover, the Court also declared in these
and that cases that
“[t]hat freedom cannot be construed as im- “it is difficult to derive from the Conven-
posing on a State positive obligations to tion a general right of access to adminis-
collect and disseminate information of its trative data and documents.”124
own motion.”120 Nevertheless, in 2009, the ECtHR contin-
ued its jurisdiction on this matter. In the re-
spective case, a request to Hungary’s Consti-
tutional Court to disclose a parliamentarian’s
116
Sunday Times v. the U.K., op. cit., § 50, Lingens vs. Austria,
op. cit., § 41., Jersild v. Denmark, op. cit., § 31.
117
Sener v. Turkey, judgment of 18 July 2000, Appl. 26680/95,
§ 45.
118
Recommendation Rec(2007)2 of the Committee of Ministers
to Member States on media pluralism and diversity of media
content, adopted by the Committee of Ministers on 31 Janu- 121
Leander v. Sweden, op. cit., § 74.
ary 2007. 122
Sdruženi Jihočeské Matky v. Czech Republic, judgment of 10
119
Leander v. Sweden, judgment of 26 March 1987, Appl. July 2006, Appl. 19101/03.
9248/81, § 74. 123
Sdruženi Jihočeské Matky v. Czech Republic, op. cit..
120
Guerra and others v. Italy, judgment of 19 February 1998, 124
Loiseau v. France, judgment of 28 September 2004, Appl.
Appl. 14967/89, § 53. 46809/99.
30 The Media in South-East Europe

complaint questioning the legality of new In this context, it has to be noted that Rec-
criminal legislation, was denied. The Court ommendation Rec (2002) 2127 provides that
noted that with regard to the importance of “Member States should guarantee the
the contribution to the discussion of public af- right of everyone to have access, on re-
fairs, free access to information plays a vital quest, to official documents held by pub-
role for an informed public debate on matters lic authorities.”
of public interest. Furthermore Art. 10 ECHR However, it also admits that limitations, if
does not accept a law allowing arbitrary re- they are set down precisely in law, are neces-
strictions. If the states should create obstacles sary in a democratic society and are propor-
to the gathering of information it could result tionate to the aim of protecting. As yet the
in a form of indirect censorship.125 Court has not referred to this Recommenda-
Regarding the “censorship-effect” of an tion in its decisions.
information monopoly, the Court saw an in- The special significance of the right to re-
terference with the exercise of the functions ceive information especially became clear in
of a public watchdog by the press. Moreover, a case128 which the Court had to decide in
the State’s obligations in matters of freedom 2008. The Court classified the possibility of
of the press include the elimination of barri- foreign residents to have access to informa-
ers to the exercise of press functions where, tion concerning matters of their country of
in issues of public interest, such barriers exist origin to be so important that it outweighs
solely because of an information monopoly even other constitutionally guaranteed rights,
held by the authorities. The same would ap- such as property rights. The judges found that
ply to private organisations which the Court “that information included, for instance,
also categorised as a ‘public watchdog’. Since political and social news that could be
the requested information was ready and ac- of particular interest to the applicants as
cessible, it considered that the State had an immigrants from Iraq. Moreover, while
obligation not to impede the flow of informa- such news might be the most important
tion sought by the applicant. Thus, a violation information protected by Article 10, the
of Art. 10 was affirmed. freedom to receive information does not
Although the judges recalled that it was extend only to reports of events of public
difficult to derive a general right of access to concern, but covers in principle also cul-
administrative documents, they also said that tural expressions as well as pure entertain-
“the Court has recently advanced towards ment. The importance of the latter types
a broader interpretation of the notion of of information should not be underesti-
freedom to receive information and there- mated, especially for an immigrant fam-
by towards the recognition of a right of ily with three children, who may wish to
access to information.”126 maintain contact with the culture and lan-
Therefore, one may draw the conclusion guage of their country of origin.”129
that the ECtHR obviously tends towards an Therefore, a landlord could not lawfully de-
acceptance of the right of access to public
documents.
127
Recommendation Rec (2002) 2 of the Committee of Min-
isters to Member States on access to official documents, ad-
125
Társaság a Szabadságjogokért v. Hungary, judgment of opted on 21 February 2002.
14 April 2009, Appl. 37374/05, § 27; see mutatis mutandis 128
Khurshid Mustafa und Tarzibachi v. Sweden, judgment of 16
Kenedi v. Hungary, judgment of 26 May 2009, Appl. 31475/05. December 2008, Appl. 23883/06.
126
Társaság a Szabadságjogokért v. Hungary, op. cit., § 35. 129
Khurshid Mustafa und Tarzibachi v. Sweden, op. cit., § 44.
European Media Law and Policy Framework 31

mand the dismantling of a satellite dish from accurate and reliable information in accordance
his tenants. with the ethics of the profession of journalism.132
The Court claims that journalists shall, besides
1.6 The freedom of the press further possible investigations, contact the person
that is concerned by their articles and ask their
The press contributes to the societal opinion- opinion on the matter. Moreover, this person has
forming process by the special form of distri- a right to publish a reply133, which also finds a ba-
bution of information in textform by its arti- sis in the Recommendation Rec (2004) 16.134
cles in newspapers and journals. The freedom The examination especially depends on
of the press takes a special position because the nature and degree of the defamation, the
it corresponds to the right of the public to re- manner in which the impugned article was
ceive this information in the interest of free written and the extent to which an article can
and open public debate. In this context the reasonably regard its sources as reliable with
ECtHR frequently states that respect to the allegations in question.
“it is nevertheless incumbent on it to impart Further factors that have to be considered
information and ideas of public interest. Not when assessing the proportionality of sanctions
only does the press have the task of impart- or other measures are the nature and severity
ing such information and ideas: the public of the penalties.135 These are capable of ham-
also has a right to receive them. Were it oth- pering journalistic work and of discouraging the
erwise, the press would be unable to play its participation of the media in debates over mat-
vital role of public watchdog.”130 ters of legitimate public concern, the so-called
Concerning bounds set to the press, Art. “chilling effect”. In this context the ECtHR con-
10(2) ECHR provides that the exercise of this sidered unpredictably large damages capable of
freedom carries with it “duties and responsi- having a chilling effect on the press and, there-
bilities”, which, however, apply to all forms of fore, requiring the most careful scrutiny.136
media. These “duties and responsibilities” are
of concern if the reputation of private individu- 1.7 Freedom of broadcasting
als is attacked and “rights of others” are un-
dermined. Where there is the question of at- In contrast to the protection of freedom of
tacking the reputation of individuals and thus broadcasting by national constitutions, Art. 10
undermining their rights as guaranteed in Art. ECHR primarily is a human right and not a so-
8 ECHR regard must be had for the fair balance called “dienende Freiheit”, the latter meaning
which has to be struck between the competing that the primary task of this right is to ensure
interests of the individual and of the communi- the diversity of opinion in the media.137
ty as a whole. In both contexts the State enjoys
a certain margin of appreciation.131
132
Goodwin v. the U.Kop. cit., § 39; Fressoz and Roire v. France,
Furthermore, the safeguard afforded by Art. judgment of 21 January 1999, Appl. 29183/95, § 54.
133
Flux v. Moldova, judgment of 29 July 2008, Appl. 22824/04,
10 ECHR is subject to the provisions that the jour-
§ 29.
nalists are acting in good faith in order to provide 134
Recommendation Rec(2004)16 of the Committee of Minis-
ters to Member States on the right of reply in the new media
environment, adopted on 15 December 2004.
135
Skałka v. Poland, judgment of 27 May 2003, Appl. 43425/98,
§ 35 and 38.
130
Observer and Guardian v. the U.K., judgment of 26 Novem- 136
Independent News and Media and Independent Newspa-
ber 1991, Appl. 13585/88, § 59. pers Ireland Limited v. Ireland, judgment of 16 September
131
Pfeifer v. Austria, judgment of 15 November 2007, Appl. 2005, Appl. 55120/00, § 114.
12556/03, § 35; Von Hannover v. Germany, judgment of 24 137
Fink/Cole/Keber, Europäisches und internationales Medien-
June 2004, Appl. 59320/00, § 57. recht, rec. 255.
32 The Media in South-East Europe

Private broadcasters as well as public It has to be noted that the action of per-
broadcasting corporations may refer to the sons who impart information or ideas in con-
freedom of broadcasting. This right includes nection with broadcasting is protected by the
radio, television and, at least to some extent, freedom of expression. In this context inter-
new (audiovisual) media (information and ferences have to correspond to the require-
communication) services. The protected ac- ments which this right imposes.
tivities range from the organisation of broad- Art. 10 ECHR also imposes requirements
casters to the broadcasting and distribution of on the national framework regulating the
information as well as to its content.138 broadcasting system. The Court determined
In the Court’s view, neither the fact that that the
its activities are commercial nor the intrinsic “effective exercise of freedom of expres-
nature of freedom of expression can deprive sion does not depend merely on the
one of the protection of freedom of broad- State’s duty not to interfere, but may re-
casting. It applies to “everyone”, whether quire it to take positive measures of pro-
natural or legal persons and it applies not only tection, through its law or practice. The
to the content of information but also to the Court considers that, in the field of audio-
means of transmission or reception, while the visual broadcasting, the above principles
actual reception is involved.139 Interferences place a duty on the State to ensure, first,
concerning the means of receiving are also that the public has access through televi-
interferences with the right of imparting and sion and radio to impartial and accurate
receiving information and ideas. Thus, Art. 10 information and a range of opinion and
also protects the right to install antenna sys- comment, reflecting inter alia the diver-
tems or satellite dishes. sity of political outlook within the country
In conclusion, both the broadcaster and and, secondly, that journalists and other
the broadcast recipient are protected by Art. professionals working in the audiovisual
10 ECHR. media are not prevented from impart-
According to the Court, ing this information and comment. The
“broadcasting is mentioned in the Con- choice of the means by which to achieve
vention precisely in relation to freedom these aims must vary according to local
of expression. Like the Commission, the conditions and, therefore, falls within the
Court considers that both broadcasting State’s margin of appreciation.”141
of programmes over the air and cable In its Art. 11, the “European Charter for
retransmission of such programmes are Regional or Minority Languages”142 stipulates
covered by the right enshrined in the first special requirements for the use of regional or
two sentences of Article 10 para. 1, with- minority languages in the media. This applies
out there being any need to make distinc- to public service broadcasters since, for exam-
tions according to the content of the pro- ple, such languages play a role to “the extent
grammes.”140 that radio and television carry out a public
service mission”, as well as to press organisa-

138
Grabenwarter, ibid., § 23, rec. 9.
139
Autronic AG v. Switzerland, judgment of 22 May 1990,
Appl. 12726/87, § 47. Manole and others v. Moldova, op. cit., §§ 99-100.
141

140
Groppera Radio AG v. Switzerland, judgment of 28 March European Charter for Regional or Minority Languages of 5
142

1990, Appl. 10890/84, § 55. November 1992.

European Media Law and Policy Framework 33

tions which, for example, should encourage The legal framework governing public
and/or facilitate the publication of newspaper service broadcasting organisations should
articles in the regional or minority languages clearly stipulate their editorial indepen-
on a regular basis. dence and institutional autonomy.
Recommendation Rec (2003) 9143 contains The legal framework governing public
basic principles addressing the issue of digital service broadcasting organisations should
broadcasting. Especially public service broad- clearly stipulate that they shall ensure that
casters should preserve their special social news programmes fairly present facts and
remit in the new digital environment. Nev- events and encourage the free formation
ertheless, Member States should assist pub- of opinions.
lic service broadcasters to be present on the The cases in which public service broad-
different digital platforms (cable, satellite, ter- casting organisations may be compelled
restrial) with diverse quality programmes and to broadcast official messages, declara-
services as well as giving them the possibil- tions or communications, or to report on
ity of having access to the necessary financial the acts or decisions of public authorities,
means to fulfil their remit. or to grant airtime to such authorities,
should be confined to exceptional cir-
a) Public service broadcasting
cumstances expressly laid down in laws or
With regard to the public service broadcast-
regulations.”
ing the ECtHR refers144 to Recommendation
Hence, the Court determined that
Rec(2007)3 on “The remit of public service
“[w]hile the Court, and previously the
media in the information society” and to Rec-
Commission, have recognised that a pub-
ommendation No. R (96) 10145 on “The Guar-
lic service broadcasting system is capable
antee of the Independence of Public Service
of contributing to the quality and balance
Broadcasting”, including its Appendix which
of programmes, there is no obligation un-
provides inter alia that:
der Article 10 to put in place such a ser-
“Member States have the competence to
vice, provided that some other means are
define and assign a public service remit to
used to the same end.
one or more specific media organisations,
Where a State does decide to create a
in the public and/or private sector, main-
public broadcasting system, it follows
taining the key elements underpinning
from the principles outlined above that
the traditional public service remit, while
domestic law and practice must guaran-
adjusting it to new circumstances. This
tee that the system provides a pluralistic
remit should be performed with the use
service. Particularly where private stations
of state-of-the-art technology appropriate
are still too weak to offer a genuine alter-
for the purpose.”
native, and the public or State organisa-
tion is therefore the sole or the dominant
broadcaster within a country or region, it
143
Recommendation Rec (2003) 9 of the Committee of Minis- is indispensable for the proper functioning
ters to Member States on measures to promote the democratic
of democracy that [broadcasting] trans-
and social contribution of digital broadcasting, adopted by the
Committee of Ministers on 28 May 2003. mits impartial, independent and balanced
144
Wojtas-Kaleta v. Poland, judgment of 16 July 2009, Appl.
20436/02, § 21; Manole and others v. Moldova, op. cit., § 102. news, information and comment and in
145
Recommendation No. R (96) 10 of 11 September 1996 of
addition provides a forum for public dis-
the Committee of Ministers to Member States on the guaran-
tee of the independence of Public Service Broadcasting. cussion in which as broad a spectrum of
34 The Media in South-East Europe

views and opinions as possible can be ex- the requirements of paragraph 2, for that
pressed.”146 would lead to a result contrary to the ob-
The Court also ruled that the guarantee of ject and purpose of Article 10 taken as a
diversity of opinion does not require a public whole.”148
monopoly and refused to accept arguments When examining, the Court weighs the
to refuse a licence of the states: legitimate need for the quality and balance
“Of all the means of ensuring that these of programmes in general against the free-
values are respected, a public monopoly dom of expression of the applicant, namely
is the one which imposes the greatest re- his right to impart information and ideas and
strictions on the freedom of expression, assesses whether the national measures are
namely the total impossibility of broad- justifiable in principle and proportionate in re-
casting otherwise than through a nation- spect of the case as a whole and the immedi-
al station and, in some cases, to a very ate and powerful effect of the media.
limited extent through a local cable sta- According to Recommendation No. R (99) 1149
tion. The far-reaching character of such “Member States should monitor the develop-
restrictions means that they can only ment of the new media with a view to taking
be justified where they correspond to a any measures which might be necessary in or-
pressing need. As a result of the techni- der to preserve media pluralism (...).”
cal progress made over the last decades, Regarding the exigence of safeguarding
justification for these restrictions can no and promoting pluralism in the audio-visual
longer today be found in considerations media, the states as the ultimate guarantors
relating to the number of frequencies of the principle of pluralism have to ground
and channels available.”147 their decisions primarily on safeguarding
this, especially with regard to broadcasting,
b) Licensing system because of their very wide reach and strong
Art. 10(1) sent. 3 allows the Contracting impact on the public.150 Domestic authorities
States to require the licensing of broadcast- have to aim at preventing a one-sided range
ing, television or cinema enterprises. How- of programmes.151
ever, the Court emphasises that the purpose The national courts are allowed to take
of this last sentence and the scope of its ap- special national circumstances into account.
plication must be considered in the context In its Demuth case the Court had regard to
of the Article as a whole and, in particular, in the decision of the Commission152, according
relation to the requirements of para. 2. This to which
sentence clarifies “the particular political circumstances in
“that states are permitted to control by a Switzerland (...) necessitate the applica-
licensing system the way in which broad- tion of sensitive political criteria such as
casting is organised in their territories,
particularly in its technical aspects. It does
not, however, provide that licensing mea- 148
Groppera Radio AG v. Switzerland, op. cit., § 61.
149
Recommendation No. R (99) 1 of the Committee of Minis-
sures shall not otherwise be subject to ters to Member States on measures to promote media plural-
ism, adopted on 19 January 1999.
150
Informationsverein Lentia and others v. Austria, op. cit., § 38.
151
Demuth v. Switzerland, judgment of 5 November 2002,
Appl. 38743/97, § 43.
152
Verein Alternatives Lokalradio Bern and Verein Radio
146
Manole and others v. Moldova, op. cit., §§ 100 and 101. Dreyeckland Basel v. Switzerland, decision of the Commission
147
Informationsverein Lentia and others v. Austria, op. cit., § 39. of 16 October 1986, Appl. 10746/84.
European Media Law and Policy Framework 35

cultural and linguistic pluralism, balance States, of a comparable size to Austria, in

between lowland and mountain regions which the coexistence of private and pub-
and a balanced federal policy”, lic stations, according to rules which vary
and it accepted the validity of these con- from country to country and accompanied
siderations by measures preventing the development
“which are of considerable importance of private monopolies, shows the fears ex-
for a federal State. Such factors, encour- pressed to be groundless.”157
aging in particular pluralism in broadcast- In the context of the licensing procedure,
ing, may legitimately be taken into ac- the ECtHR also refers to Recommendation
count when authorising radio and televi- Rec (2000) 23158 on the independence and
sion broadcasts.153 functions of regulatory authorities for the
Moreover, the States are not prohibited broadcasting sector:
from making the granting or refusal of “The Court notes that the guidelines ad-
a licence conditional on other consid- opted by the Committee of Ministers of
erations, i.e. such matters as the nature the Council of Europe in the broadcasting
and objectives of a proposed station, its regulation domain call for open and trans-
potential audience at national, regional or parent application of the regulations gov-
local level, the rights and needs of a spe- erning the licensing procedure and spe-
cific audience and the obligations deriving cifically recommend that '[a]ll decisions
from international legal instruments.”154 taken (...) by the regulatory authorities (...)
In this scope there is also a margin of ap- be (...) duly reasoned [and] open to review
preciation,155 but the Court has already point- by the competent jurisdictions.”159
ed out that As a result, the licensing criteria in the
“it cannot be argued that there are no underlying process especially must provide
equivalent less restrictive solutions; it is sufficient guarantees against arbitrariness, so
sufficient by way of example to cite the that a lack of reasons for a decision denying
practice of certain countries which either a broadcasting licence infringes the right to
issue licences subject to specified condi- freedom of expression.
tions of variable content or make provision “A licensing procedure whereby the li-
for forms of private participation in the ac- censing authority gives no reasons for its
tivities of the national corporation.”156 decisions does not provide adequate pro-
Furthermore, it emphasised that it could tection against arbitrary interferences by
not accept the argument that a national mar- a public authority with the fundamental
ket was too small to sustain a sufficient num- right to freedom of expression.”160
ber of stations to avoid regroupings and the Finally, Recommendation Rec (2000) 23
constitution of “private monopolies”,
“because their assertions are contradict-
ed by the experience of several European
157
Informationsverein Lentia and others v. Austria, op. cit., § 42.
158
Recommendation Rec (2000) 23 of 20 December 2000 of
the Committee of Ministers to Member States on the indepen-
dence and functions of regulatory authorities for the broad-
153
Demuth v. Switzerland, op. cit., § 44. casting sector.
154
Informationsverein Lentia and others v. Austria, judgment 159
Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria,
of 24 November 1993, Appl. 13914/88; 15041/89; 15717/89; judgment of 11 October 2007, Appl. 14134/02, § 51.
15779/89; 17207/90, § 32. 160
Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria, op.
155
Groppera Radio AG v. Switzerland, op. cit., § 72. cit., §§ 50 and 51; Meltex Ltd. And Mesrop Movsesyan v. Ar-
156
Informationsverein Lentia and others v. Austria, op. cit. § 39. menia, judgment of 17 June 2008, Appl. 32283/04, § 83.
36 The Media in South-East Europe

itself refers to the “European Convention on ing of the public’s right to information. As a
Transfrontier Television”, when providing that result any broadcaster is entitled to provide
“another essential function of regulatory information on a major event by means of a
authorities should be monitoring compli- short report, even if there are contractual (ex-
ance with the conditions laid down in law clusivity) agreements between another broad-
and in the licences granted to broadcast- caster and the organiser of the event.
ers. They should, in particular, ensure that
broadcasters who fall within their jurisdic- c) Political advertising
tion respect the basic principles laid down It is especially questionable as to whether a
in the European Convention on Transfron- ban on broadcasting political advertising is
tier Television and, in particular, those de- compatible with Art. 10 ECHR.
fined in Article 7.” Advertisements have not only a political
The Court also (indirectly) applies the prin- character if they promote a political party. In
ciples of the European Convention on Trans- 1994 the broadcasting of a commercial con-
frontier Television using this instrument for cerning animal welfare by the “Verein gegen
“a proper understanding and interpreta- Tierfabriken – VGT” (Association against in-
tion of the relevant rules.”161 dustrial animal production) was refused. The
This Convention obligates the parties to Swiss Public Television founded this decision
“ensure freedom of expression and infor- on the political character, while Swiss broad-
mation in accordance with Article 10 of casting law prohibits political advertisements
the Convention for the Protection of Hu- on radio and television. The ECtHR agreed
man Rights and Fundamental Freedoms that the commercial could be regarded as
and they shall guarantee freedom of re- “political”, so the ban could legally be found-
ception and shall not restrict the retrans- ed on the national regulation because
mission on their territories of programme “it reflected controversial opinions per-
services which comply with the terms of taining to modern society in general. (...)
this Convention.” Indeed, it cannot be denied that in many
It also provides in its Art. 8 the right of European societies there was, and is, an
reply and in its Art. 10a that the parties shall ongoing general debate on the protection
avoid that programme services endanger me- of animals and the manner in which they
dia pluralism. are reared.”163
The Convention on Transfrontier Televi- Additionally, the Court stated that
sion, and also an earlier instrument issued by “powerful financial groups can obtain
the Committee of Ministers of the Council of competitive advantages in the area of
Europe affecting national broadcasting sys- commercial advertising and may thereby
tems, i.e. Recommendation No. R (91) 5162, exercise pressure on, and eventually cur-
claim the right to short reporting on major tail the freedom of the radio and televi-
events with the aim of regulating the exercis- sion stations broadcasting the commer-
cials. Such situations undermine the fun-
damental role of freedom of expression
in a democratic society as enshrined in
161
Autronic AG v. Switzerland, op. cit., § 62.
162
Recommendation No. R (91) 5 of the Committee of Minis-
ters to Member States on the right to short reporting on major
events, where exclusive rights for their Television Broadcast have
been acquired in a transfrontier context, adopted on 11 April
163
VgT Verein gegen Tierfabriken v. Switzerland, judgment of 28
1991. June 2001, Appl. 24699/94, § 70.
European Media Law and Policy Framework 37

Article 10 of the Convention, in particular Contracting States have a wide margin of ap-
where it serves to impart information and preciation in striking a fair balance between
ideas of general interest, which the pub- freedom of expression of these parties and
lic is moreover entitled to receive. Such the need to place restrictions thereon in or-
an undertaking cannot be successfully der to secure people’s independent decision
accomplished unless it is grounded in the in the election.168 According to the ECtHR,
principle of pluralism of which the State “a lack of consensus between the States
is the ultimate guarantor. This observation making up the Convention community
is especially valid in relation to audio-vi- with regard to the regulation of the right
sual media, whose programmes are often to vote and the right to stand for election
broadcast very widely.”164 may justify according them a wide margin
Hence, the Court ruled that a ban on po- of appreciation in this area..”169
litical advertisements is not an infringement The ECtHR also refers to Recommenda-
of Art. 10 ECHR per se, but there can be rel- tion No. R (99) 15170 “on measures concern-
evant and sufficient reasons to justify165, for ing media coverage of election campaigns”,
example, the need for securing the quality of which provides that
political debate and pluralism or for securing “the possibility of buying advertising
the political independence of the television space should be available to all contend-
broadcasters, besides preventing financially ing parties, and on equal conditions and
powerful groups from dominating the politi- rates of payment”,
cal forum.166 as well as to Recommendation Rec(2007)15171,
According to the Court a ban on religious which entailed a revision of Recommendation
advertisements can be more easily justified No. R (99) 15, stating:
because of the immediate and powerful ef- “In view of the different positions on
fect of the audio-visual media.167 this matter, Recommendation CM/
However, it has to be noted that the as- Rec(2007)... does not take a stance on
sociation participated in a topical debate in whether this practice should be accept-
society and that there is little scope under Art. ed or not, and simply limits itself to say-
10 for restrictions on political speech and on ing that if paid advertising is allowed it
debates relating to questions of general inter- should be subject to some minimum
est, while the national margin of appreciation rules, in particular that equal treatment
is reduced. The national authorities could not (in terms of access and rates) is given to
give sufficient reasons that could justify the all parties requesting airtime.”
refusal in the particular circumstances of the Using these principles for the examination
case, so the Court found a violation of the of whether such a ban is proportionate, the
freedom of expression of the association. ECtHR determined in this case that
Concerning the prohibition of advertise-
ments of political parties and its compatibility
with Art. 10 ECHR, the Court found that the
168
Mathieu-Mohin and Clerfayt v. Belgium, op. cit., §§ 52 and
54.
169
TV Vest AS & Rogaland Pensjonistparti v. Norway, judgment
of 11 December 2008, Appl. 21132/05, § 65.
170
Recommendation No. R (99) 15 of 9 September 1999 of the
164
VgT Verein gegen Tierfabriken v. Switzerland, op. cit., § 73. Committee of Ministers to Member States on measures con-
165
VgT Verein gegen Tierfabriken v. Switzerland, op. cit, § 75. cerning media coverage of election campaigns.
166
TV Vest AS & Rogaland Pensjonistparti v. Norway, op. cit., § 171
Recommendation CM/Rec(2007)15 of 7 November 2007 of
70. the Committee of Ministers to Member States on measures con-
167
Murphy v. Ireland, judgment of 10 July 2003, Appl. 44179/98. cerning media coverage of election campaigns.
38 The Media in South-East Europe

“paid advertising on television became the tional Covenant on Civil and Political Rights,
only way for the Pensioners Party to put its which specifically includes within the right
message across to the public through that of freedom of expression information and
medium. By being denied this possibility ideas 'in the form of art'.”173
under the law, the Pensioners Party was The protection is not limited to specific
at a disadvantage compared with major forms or content of art, films174 and books175,
parties which had obtained edited broad- as they are protected just like paintings176,
casting coverage, and this could not be for instance. Finally, art is just another way of
offset by the possibility available to it to communication, because an artist is also able
use other, less potent, media.”172 to impart information and ideas by his work.
The required “equal treatment to all par- Besides the conveying of art itself, the
ties requesting airtime” was not granted to scope of Art. 10 ECHR includes the so-called
the party, thus there was a violation of Art. artists “Wirkbereich”. Therefore also an exhibi-
10 ECHR. tor of artistic works, an operator of a cinema
or a proprietor and a managing director of a
1.8 Freedom of artistic expression publishing house can refer to this freedom177:
“Those who create, perform, distribute or
The freedom of artistic impresion is not explic- exhibit works of art contribute to the ex-
itly mentioned in Art. 10 ECHR. However, the change of ideas and opinions which is es-
ECtHR accepts its protection and argues that sential for a democratic society. Hence the
“admittedly, Article 10 does not specify obligation on the State not to encroach
that freedom of artistic expression, in issue unduly on their freedom of expression.”178
here, comes within its ambit; but neither, Interferences concerning the freedom
on the other hand, does it distinguish be- of artistic expression are thinkable if artistic
tween the various forms of expression. As works are confiscated or if their publication
those appearing before the Court all ac- and distribution is forbidden.
knowledged, it includes freedom of artis- So in the Wingrove case179 a film director
tic expression - notably within freedom to was refused a distribution certificate because
receive and impart information and ideas - his film was considered as blasphemous. In
which affords the opportunity to take part another case a film was even seized.180
in the public exchange of cultural, political These measures can also be legal. In this con-
and social information and ideas of all kinds. text, the Court determined that
Confirmation, if any were needed, that this “artists and those who promote their
interpretation is correct, is provided by the work are certainly not immune from the
second sentence of paragraph 1 of Article possibility of limitations as provided for
10, which refers to 'broadcasting, television
or cinema enterprises', media whose activi-
ties extend to the field of art. Confirmation 173
Müller a.o. v. Switzerland, judgment of 24 May 1988, Appl.
that the concept of freedom of expression is 10737/84, § 27.
174
See Otto-Preminger Institut v. Austria, op. cit.; Wingrove v.
such as to include artistic expression is also the U.K., op. cit.
175
Editions Plon v. France, op. cit.
to be found in Article 19 § 2 of the Interna- 176
See Müller a.o. v. Switzerland, op. cit.
177
See Müller a.o. v. Switzerland, op. cit.; Otto Preminger Institut
v. Austria, op. cit.; İ. A. v. Turkey, op. cit.
178
Müller a.o. v. Switzerland, op. cit., § 33.
172
TV Vest AS & Rogaland Pensjonistparti v. Norway, op. cit., § 179
Wingrove v. the U.K., op. cit..
73. 180
Otto-Preminger Institut v. Austria, op. cit..
European Media Law and Policy Framework 39

in paragraph 2 of Article 10 (art. 10-2). so far. In the above-mentioned cases183 it

Whoever exercises his freedom of expres- found that the national court could rightly as-
sion undertakes, in accordance with the sume the respective measures to be necessary
express terms of that paragraph, 'duties in a democratic society in order to protect the
and responsibilities'; their scope will de- rights of others. Although there is little scope
pend on his situation and the means he for restrictions on political speech or on the
uses.181 debate of questions of public interest, the
The most common legal interests that Court also emphasised that the states have
conflict with freedom of artistic expression a wider margin of appreciation with regard
are the protection of morals and the rights to the sphere of morals. Thus it accepted the
of others, both mentioned in Art. 10(2) as le- national decision to give precedence to the
gitimate aims to pursue. As already indicated rights of the persons affected by the film and
above, when assessing whether an interfer- to restrict freedom of expression.
ence was “proportionate to the legitimate
aim pursued” and whether the reasons ad- 1.9 Protection of the use of the internet,
duced to justify it are “relevant and suffi- emails and telephone
cient”, the domestic authorities enjoy a wider
margin of appreciation than when assessing The use of the medium of internet is also
interferences with freedom of the press, for protected by the freedom of expression and
example. information as far as there is an imparting
The Court ruled that and receiving of information. Art. 10 ECHR
“today, as at the time of the Handyside also protects the form in which information
judgment, it is not possible to find in the is conveyed.184
legal and social orders of the Contracting Internet archives, for example, are very
States a uniform European conception of important tools of preserving and making
morals. The view taken of the require- available news and information. They consti-
ments of morals varies from time to time tute an important source for education or his-
and from place to place, especially in our torical research, particularly as they are read-
era, characterised as it is by a far-reaching ily accessible to the public and are generally
evolution of opinions on the subject. By free. Therefore, they play an important role
reason of their direct and continuous con- for the press that has a further task, beside
tact with the vital forces of their countries, the role as a public watchdog, to maintain
State authorities are in principle in a bet- and make available to the public archives con-
ter position than the international judge taining news. Thus they enjoy protection by
to give an opinion on the exact content Art. 10. However, the Court emphasised that
of these requirements as well as on the the margin of appreciation afforded to States
'necessity' of a 'restriction' or 'penalty' in- in striking the balance between the compet-
tended to meet them.”182 ing rights is likely to be greater where news
Subject to those rulings the Court has archives of past events, rather than news re-
rarely determined a violation of Art. 10 ECHR porting of current affairs, are concerned. In

181
Müller a.o. v. Switzerland, op. cit., § 34, Handyside v. the See footnotes 163 and 164.
183

U.K., op. cit., § 49. Oberschlick v. Austria No.1, judgment of 23 May 1991, Appl.
184

182
Müller a.o. v. Switzerland, op. cit., § 35. 11662/85, § 57.
40 The Media in South-East Europe

particular, the duty of the press to act in accor- tion of individuals using this medium, where
dance with the principles of responsible jour- especially internet service providers are con-
nalism by ensuring the accuracy of historical, cerned. The guidelines concern the question
rather than perishable, information published as to how they shall design their systems and
is likely to be more stringent in the absence of technologies to safeguard the user as far as
any urgency in publishing the material.185 But possible. The “Convention on Cybercrime”190
according to the case-law of the Court, also pursues the objective of increasing the
“telephone calls (from business) premises safety of the use of the internet. The con-
are prima facie covered by the notions tracting parties set several actions concerning
of “private life” and “correspondence” the confidentiality, integrity and availability of
for the purposes of Article 8 para 1186. It computer data and systems, computer-relat-
follows logically that e-mails (sent from ed offences, offences related to child pornog-
work) should be similarly protected under raphy as well as copyright and related rights
Article 8, as should information derived as criminal. Besides, they laid down provisions
from the monitoring of personal internet with regard to the procedural law.
usage.”187 Additionally, there are the “Guidelines
According to Recommendation CM/Rec for the co-operation between law enforce-
(2007)16188, the Member States shall take ment and internet service providers against
all necessary measures to promote the pub- cybercrime”191 besides Recommendation Rec
lic service value of the internet by – inter alia (2001) 8. They recommend the states to en-
– enhancing the protection of human rights, courage content descriptors or search tools
especially and filtering profiles, for example, to increase
the right to freedom of expression, in- the protection of cyber users.
formation and communication on the In- Besides, there is a recommendation193
ternet and via other ICTs promoted, inter concerning the use and control of internet fil-
alia, by ensuring access to them. ters with regard to freedom of expression and
Furthermore Recommendation No. R (99) information.
5 of the Committee of Ministers to Mem-
189
Especially children shall be protected from
ber States for the protection of privacy on the dangers of the use of the internet. Thus
the internet (guidelines for the protection the Recommendation CM/Rec(2009)5194 pro-
of individuals with regard to the collection vides that the states shall ensure that there
and processing of personal data on informa- are safe and secure spaces for children on the
tion highways) is relevant to the use of the
internet. It includes guidelines for the protec-
190
Convention on Cybercrime, 23. October 2001, available at
www.conventions.coe.int/.
191
Guidelines for the co-operation between law enforcement
185
Times Newspapers Ltd. (nos. 1 and 2) v. the U.K, judgment of and internet service providers against cybercrime, 2 April 2008.
10 March 2009, 3002/03 and 23676/03, § 45. 192
Recommendation Rec (2001) 8 on self-regulation concerning
186
Halford v. the United Kingdom, judgment of 25 June 1997, cyber content (self-regulation and user protection against illegal
Appl. 20605/92, § 44. or harmful content on new communications and information
187
Copland v. the U.K., judgment of 3 April 2007, Appl. services adopted on 5 September 2001.
62617/00, § 41. 193
Recommendation CM/Rec(2008)6 of the Committee of Min-
188
Recommendation CM/Rec(2007)16 of the Committee of Min- isters to Member States on measures to promote the respect for
isters to Member States on measures to promote the public ser- freedom of expression and information with regard to Internet
vice value of the Internet, adopted on 7 November 2007. filters, 26 March 2008.
189
Recommendation No. R (99) 5 of the Committee of Ministers 194
Recommendation CM/Rec(2009)5 of the Committee of Min-
to Member States for the protection of privacy on the internet isters to Member States on measures to protect children against
(guidelines for the protection of individuals with regard to the harmful content and behaviour and to promote their active par-
collection and processing of personal data on information high- ticipation in the new information and communications environ-
ways), 23 February 1999. ment, adopted on 8 July 2009.
European Media Law and Policy Framework 41

Internet and develop the responsible use of the light of Art. 10 ECHR, but shall have “the
labelling systems for online content, for ex- meaning and scope” of Art. 10 ECHR.
ample by creating a pan-European trustmark Art. 11 CFREU reads as follows:
for labelling systems of online content. "Everyone has the right to freedom of ex-
In Recommendation CM/Rec(2007)11195, pression. This right shall include freedom
the Committee of Ministers encourages the to hold opinions and to receive and impart
Member States to develop common standards information and ideas without interfer-
and strategies to promote transparency and ence by public authority and regardless of
the provision of information, guidance and frontiers.
assistance to the individual users of technolo- The freedom and pluralism of the media
gies and services in the new information and shall be respected."
communications environment. This takes place And Art. 52(3) CFREU reads:
especially against the background of Art. 10 “In so far as this Charter contains rights
ECHR, guaranteeing the development of infor- which correspond to rights guaranteed by
mation and communication technologies and the Convention for the Protection of Hu-
services for the benefit of each individual and man Rights and Fundamental Freedoms,
the democratic culture of every society. The the meaning and scope of those rights
Recommendation also stipulates information shall be the same as those laid down by
on affordable access to ICT infrastructure that the said Convention. (...).”
Member States should take into account. The acquis is relevant, first of all, for the
EU Member States: Bulgaria and Romania.
2 Media law aspects of European But it also bears relevance for the "candidate
Union law: The acquis and its countries": Croatia, the Former Yugoslav Re-
public of Macedonia (henceforth: FYROM or
extension to South-East Europe
Macedonia) and Montenegro; as well as for
Besides the benchmark which the Council of the so-called “potential candidate countries”:
Europe and particularly the ECtHR set with Albania, Bosnia and Herzegovina, Serbia and
respect to Art. 10 ECHR on the media law, Kosovo (all have been given the prospect of
the existing acquis of European Union (media) EU membership197), and not least, for Mol-
law, also as interpreted by the jurisprudence dova, which is a partner country within the
of the European Court of Justice (ECJ), addi- European Neighbourhood Policy (ENP)198
tionally is of major relevance for the countries which, in its turn, forms another component
dealt with in the present study. It should be of the EU’s external policy (also in the audio-
noted that Art. 10 ECHR becomes kind of “a visual sector). Before joining the EU, countries
part” of the acquis as Art. 11 of the Char- have to bring their national laws into line
ter of Fundamental Rights of the European with the EU acquis, especially including – in
Union196 (CFREU), read together with Art.
52(3) CFREU, has not only to be interpreted in
197
The “pre-accession countries” have already made substantial
efforts to meet European standards on media, and the process
of reform is ongoing. Information on their progress towards
195
CM/Rec(2007)11 of the Committee of Ministers to Member meeting the membership requirements in the audiovisual field
States on promoting freedom of expression and information on is available at: http://ec.europa.eu/enlargement/index_en.htm
the new information and communications environment of 26 198
The “EU-Moldova Action Plan“ lays out the strategic ob-
September 2007. jectives based on commitments to shared values and effective
196
Proclaimed by the European Parliament, the Council of Minis- implementation of political, economic and institutional reforms,
ters and the European Commission on 7 December 2000, newly available at: http://ec.europa.eu/world/enp/pdf/action_plans/
published in the adapted version in: [2010], OJ C 83, p. 389. moldova_enp_ap_final_en.pdf
42 The Media in South-East Europe

the audiovisual field – the Audiovisual Media by EU law. The reason for this lies within the
Services Directive (Directive 2010/13/EU199, enlargement procedure: a country that wish-
AVMSD). When they do so, they also become es to join the EU submits an application for
eligible for funding under the MEDIA 2007 membership to the Council, which asks the
programme200 (covering the period 2007-13). European Commission to assess the appli-
Promoting the alignment with European stan- cant’s ability to meet the conditions of mem-
dards on media legislation and in particular bership. If the Commission delivers a positive
the AVMSD is one of the initiatives of the Eu- opinion, and the Council unanimously agrees
ropean Commission’s pre-accession strategy. a negotiating mandate, negotiations are for-
Furthermore, the alignment of legislation and mally opened between the candidate country
practices with European standards on media and all of the EU Member States.
in accordance with fundamental democratic The conditions for membership mainly fol-
principles is an element of the so-called “Co- low from Arts. 6 and 49 TEU. Especially the
penhagen criteria” (see infra), and is crucial so-called “Copenhagen criteria”, which stip-
for the promotion of cultural diversity. ulate that
This chapter aims at providing an overview “[M]embership requires that the candi-
of relevant legal provisions of the Treaty of the date country has achieved stability of in-
European Union (TEU), the Treaty on the Func- stitutions guaranteeing democracy, the
tioning of the European Union (TFEU), Second- rule of law, human rights and respect for
ary European Union legislation in the present and protection of minorities, the existence
field – especially the AVMSD, as well as relevant of a functioning market economy as well
case-law of the Courts of the European Union. as the capacity to cope with competitive
pressure and market forces within the
2.1 Obligations deriving from accession to the EU Union”,
are essential for the (potential) candidate
Besides the obligations for Member States countries; hereunder, the protection of human
deriving from European Union law, states rights, particularly freedom of expression, and
that assume the status of “candidate” and the rule of law (including e.g. administrative
“potential candidate” countries are already capacity) feature prominently.201 This latter el-
establishing regulations which are influenced ement translates, according to the European
Commission, into the requirement that
“the candidate country [...] ha[s] created the
199
Directive 2010/13/EU of the European Parliament and of the conditions for its integration by adapting its
Council of 10 March 2010 on the co-ordination of certain provi-
sions laid down by law, regulation or administrative action in administrative structures. While it is impor-
Member States concerning the provision of audiovisual media
services (Audiovisual Media Services Directive) (codified version), tant for EU legislation to be transposed into
[2010] OJ L 95, p. 1. national legislation, it is even more impor-
200
Decision No 1718/2006/EC of the European Parliament and of
the Council of 15 November 2006 concerning the implementa-
tion of a programme of support for the European audiovisual sec-
tor (MEDIA 2007), [2006] OJ L 327, p. 12. The MEDIA programme
promotes (the) European film in its pre-production phase (training 201
See also the European Council Declaration (Madrid Summit
and development) as well as distribution and promotion. The cur- 1995): “The European Council also confirms the need to make
rent MEDIA 2007 programme will provide EUR 755 million to Eu- sound preparations for enlargement on the basis of the crite-
rope’s audiovisual industry for the period from 2007 to 2013. An- ria established in Copenhagen and in the context of the pre-
other initiative is Europa Cinemas (http://www.europa-cinemas. accession strategy defined in Essen for the CCEE; this strategy
org/) focusing on European films. Its objective is to provide opera- will have to be intensified in order to create the conditions for
tional and financial support to cinemas that commit to screening the gradual, harmonious integration of those States, particularly
a significant number of European non-national films, to offering through the development of the market economy, the adjust-
events and initiatives as well as promotional activities targeted at ment of their administrative structures and the creation of a
young audiences, and to screening digital European films. stable economic and monetary environment.”
European Media Law and Policy Framework 43

tant for the legislation to be implemented 2.2 Relevant legal framework

and enforced effectively through the appro-
priate administrative and judicial structures. a) Primary European Union law
This is a prerequisite of the mutual trust According to Art. 2 TEU, the EU is founded
needed for EU membership.”202 on various basic values and principles that are
In particular, the Commission analyses common to all the Member States in a society
whether the requirements have been met by the in which pluralism, among other things, pre-
(potential) candidate countries and describes the vails. In view of the role played by the press as
“status quo” in their regular “progress reports”. well as public service and commercial broad-
In the case of negotiations being formally under- casting organisations in media pluralism and,
way, i.e. the Council having unanimously decided thereby, in the freedom of expression, a role
– on the basis of a Commission opinion – in fa- that is recognised in all Member States’ con-
vour of the application, for present purposes the stitutions, Art. 2 TEU has an important func-
chapters referring to “Culture and audio-visual tion in terms of directing the application of
policy” (formerly Chapter 20, now: Chapter 10: the EU treaties and their provisions.
“Information society and media”) are most rel-
evant, since they cover the alignment with the aa) Fundamental Freedoms
acquis relevant for these sectors.203 The same The Fundamental Freedoms as established by
importance applies to the establishment of legal the TFEU are essential in primary EU Law. It is
provisions that safeguard the fundamental rights the free movement of goods, regulated in Arts.
of the CFREU. With regard to the “media sec- 34 et seq. TFEU, the free movement of persons
tor” especially the freedom of thought (Art. 10 (including workers as well as the freedom of es-
CFREU) and the freedom of expression and infor- tablishment), regulated in Arts. 45 et seq. TFEU,
mation (Art. 11 CFREU) can be named. the freedom to provide services, regulated in
The Council will decide to (provisionally) Arts. 56 et seq. TFEU, and the free movement of
close a negotiating chapter, after the Com- capital, regulated in Arts. 63 et seq. TFEU, that
mission is satisfied with the progress being are of particular importance for the media sec-
made.204 Undertakings accepted by the ac- tor, although the provisions on the “four free-
ceding country thus become part of the rel- doms” contain no specific reference to media or
evant obligations that, finally, will become an broadcasting services. In the following, a closer
integral component of the (draft) accession look at the freedom of establishment (as a part
treaty and the accompanying act of accession. of the free movement of persons) and the free-
dom to provide services is to be taken.205
In general terms, the principle of freedom

205
The relevance of the other “two freedoms” should, of course,
202
Cf. http://ec.europa.eu/enlargement/the-policy/conditions- not be underestimated: The free movement of goods could be ap-
for-enlargement/index_en.htm plicable for “media carrier” like newspapers, magazines, books,
203
This acquis includes the establishing of independent regulatory DVDs; see, for instance, ECJ, Case 229/83, Leclerc, [1985] ECR
authorities and the securing of their independence in various re- 1, para 20; Joined Cases 60 and 61/84, Cinéthèque, [1985] ECR
gards, cf. Commission Staff Working Paper of 5 November 2008 2605, paras. 10 et seq. The free movement of capital could be
accompanying the Commission Communication “Enlargement of relevance for media organisations, when it comes to transfer-
Strategy and Main Challenges 2008-2009” (COM(2008) 674), ring any amount of capital from one country to another or, for
SEC(2008) 2694, available at: http://ec.europa.eu/enlargement/pdf/ instance, when a broadcasting company established in a Member
press_corner/key-documents/reports_nov_2008/croatia_prog- State wants to invest in a broadcasting company established or to
ress_report_en.pdf, at p. 37. be established in another Member State, see ECJ, Case C-148/91,
204
See also Commission Staff Working Document on the Exter- Veronica, [1993] ECR I-487. Besides, the free movement of work-
nal Dimension of Audiovisual Policy of 14 July 2009, SEC(2009) ers certainly also has a bearing for the media sector, as becomes
1033, p. 15. apparent in the case of actors, cameramen, journalists etc.
44 The Media in South-East Europe

of establishment enables an economic operator (1) The freedom to provide services

(whether a person or a company) to carry out an The freedom to provide services was instru-
economic activity in a stable and continuous way mental in liberalising the European broad-
in one or more Member States. The principle of casting markets. However, it was the initial
the freedom to provide services enables an eco- point of the ECJ, ruling that broadcasting is
nomic operator (providing services in one Mem- protected by the freedom to provide services,
ber State) to offer services on a temporary basis in its first major decision (Sacchi).211 Today
in another Member State, without having to be it is firmly established that Arts. 56 et seq.
established there. Member States must modify TFEU (ex. Arts. 49 EC-Treaty) cover any form
national laws that contain unjustified restrictions of electromagnetic transmission of informa-
to the freedom of establishment, or to the free- tion across frontiers, including terrestrial and
dom to provide services, and that are, therefore, direct satellite broadcasting and transmission
incompatible with these principles.206 Arts. 45 via cable as well as Internet, multimedia and
and 56 et seq. TFEU thus require the elimina- telecommunications services.212 The provi-
tion of all (direct and indirect) discrimination on sions on freedom to “provide” services also
grounds of nationality as well as any restriction apply to the freedom to “receive” services,
which is liable to prohibit or further impede the where the recipient of services crosses bor-
activities of economic operators. Member States ders,213 as well as to scenarios involving both
may only maintain such restrictions in specific cir- the provider and recipient of services crossing
cumstances where these are justified by reasons borders and exchanging services in another
foreseen in Treaty provisions (such as public order Member State.214 It is essential that the provi-
in accordance with Arts. 52, 62 TFEU) or by over- sions on freedom to provide services do not
riding reasons of general interest207, for instance apply to activities that take place only within
– in particular with view to the media sector – on a single Member State. The ECJ distinguishes
grounds of cultural policy208, protection of con- several (non-discriminatory) measures that do
sumers209 or of Art. 10 ECHR210. Finally, the re- also have a restrictive impact on the freedom
strictions must also be proportionate. to provide services, especially in the cases
Bacardi France and Commission v. France
(Loi Evin): Here, the owners of advertising
hoardings were subject to restrictions, since
206
Cf. ECJ, Case 33/74, Van Binsbergen, [1974] ECR 1299,
paras. 7/9 et seq. See also a list of the various cases of the they had to refuse, as a preventive measure,
ECJ provided by the European Commission, Guide to the Case
Law of the European Court of Justice on Articles 49 et seq.
EC Treaty: Freedom to Provide Services, of 1 January 2001,
available at: http://ec.europa.eu/internal_market/services/docs/
infringements/art49_en.pdf; and Guide to the Case Law of the
European Court of Justice on Articles 43 et seq. EC Treaty: Free- 211
E.g. ECJ, Case 155/73, Sacchi, [1974] ECR 409, para. 6.
dom of Establishment, of 1 January 2001, available at: http:// Since then, the ECJ passed a large number of judgments in
ec.europa.eu/internal_market/services/docs/infringements/ the field of audiovisual media, e.g. ECJ, Case 52/79, Debauve,
art43_en.pdf [1980] ECR 833, para. 8; ECJ, Case 62/79, Coditel, [1980] ECR
207
Cf. ECJ, Joined Cases C-34/95, C-35/95 and C-36/95, De 881, paras. 14 et. seq.; ECJ, Case C-260/89, ERT, [1991] ECR
Agostini, [1997] ECR I-3843, para. 54; ECJ, Case C-352/85, I-2925, paras 20-25; ECJ, Case C-353/89, Commission v. Neth-
Bond van Adverteerders, [1988] ECR 2085, paras. 33 op cit. erlands (Mediawet II), [1991] ECR I-4069, para 38; ECJ, Case
208
E.g. ECJ, Case 288/89, Mediawet I, [1991] ECR I-4007, pa- C-211/91, Commission v. Belgium, [1992] ECR I-6757, para. 5;
ras. 22, 23. ECJ, Case C-23/93, TV 10, [1994] ECR I-4795, paras. 13 and
209
E.g. ECJ, Case C-6/98, ARD, [1999] ECR I-7599, para. 50. 16; ECJ, Case C-429/02, Baccardi France, [2004] ECR I-6613.
210
E.g. ECJ, Case C-288/89, Stichting Collectieve Anten- 212
Cf. K. Böttcher/O. Castendyk, Comments on Art. 49 EC, in:
nevoorziening Gouda v. Commissariaat voor de Media, [1991] Castendyk/Dommering/Scheuer, European Media Law, Alphen
ECR 4007, para. 23. See also the Communication from the a/d Rijn 2008, Art. 49 EC, rec. 4.
Commission of 27 June 2001 on the application of the general 213
ECJ, Joined Cases 286/82 and 26/83, Luisi & Carbone,
principles of free movement of goods and services – Articles 28 [1984] ECR 377, paras. 10-16.
and 49 EC – concerning the use of satellite dishes, COM (2001) 214
ECJ Case 76/81, Transporoute, [1982] ECR 417, para. 14;
351 final, Part II., 2., p. 11. Case C-55/98, Vestergaard, [1999] ECR I-7641, para. 18.
European Media Law and Policy Framework 45

any advertising for alcoholic beverages if the (3) Particularly: Restrictive measures aimed at
sporting event was likely to be retransmitted fostering media pluralism
in France215, or, rather, the transmission of In the following a special look should be tak-
television programmes was restricted, since en on possible constraints on media owner-
French broadcasters had to refuse all retrans- ship in a Member State that can have a re-
mission of sporting events in which hoardings strictive effect on companies wishing to es-
bearing advertising for alcoholic beverages tablish themselves there. This is the case, for
marketed in France might be visible.216 How- instance, where a broadcasting company is al-
ever, these rules on television advertising have ready established in a Member State and the
been justified as they relate to the protection levels of the candidates’ holdings and control
of public health within the meaning of Art. in other Member States are counted towards
52(1) TFEU of the Treaty. Still, all kinds of re- the limits, or where an applicant for a broad-
strictions on the freedom to provide services casting licence, who already operates a chan-
set by the States must be carefully assessed nel legally in another Member State, which
on a case-by-case basis, especially taking into is retransmitted in the state in which the li-
account Art. 10 ECHR. cence is applied for, will, in that case, reach
the concentration thresholds more rapidly;
(2) The freedom of establishment applicants without channels in other Member
The freedom of establishment includes the States will have an advantage. The question is
right “to set up and manage” undertakings, in then, whether the restriction on the freedom
particular companies or firms. This characteris- of establishment lies within the “general in-
tic is fulfilled, as distinct from the provisions of terest” and is proportional according to its le-
the free movement of capital, where the ac- gitimate purpose.219 One should bear in mind
quisition of a shareholding of a company in a that the fostering of “media pluralism” could
Member State by an investor/a company be a restriction in the “general interest”, es-
“[...] gives (...) definite influence over that pecially if measures are taken favouring op-
company’s decisions and allows (...) to de- erators which belong to groups representing
termine that company’s activities”217. and linked to the local community and con-
The ECJ lays the main focus on the ques- tributing towards strengthening the regional
tion as to how the influence on a company is economy.
exercised. This criterion seems to be a crucial The question as to whether national (state
tool for the distinction between the two free- indicated) measures fostering media pluralism
doms. However, the distinction based on this could justify restrictions of the fundamental
criterion may not be evident in all cases.218 freedoms is one of the most disputed legal
Once affirmed, possible restrictions must be issues in view of the role which the funda-
observed. mental freedoms play in the field of European
media law. This question becomes even more
significant, if one supports the idea of “a right
215
ECJ, Case C-429/02, Baccardi France, [2004] ECR I-6613,
to access” of media companies/providers to
para. 35. foreign (national) media markets, following
216
ECJ, Case C-262/02, Commission v. France, [2004] ECR
I-6569, para. 26.
217
ECJ, Case C-284/06, Burda, [2008] ECR I-4571, para. 69.
218
Cf. also Germelmann, Konkurrenz von Grundfreiheiten und
Missbrauch von Gemeinschaftsrecht – Zum Verhältnis von Kap-
italverkehrs- und Niederlassungsfreiheit in der neueren Recht- 219
The so-called “Gebhard-Formula“; ECJ, Case C-55/94, Geb-
sprechung, EuZW 2008, p. 596 et seq. hard, [1995] ECR I-4165.
46 The Media in South-East Europe

from the basic principle of freedom and plu- their programmes, the organisations which
ralism of the media in the sense of Arts. 11(2) have obtained broadcasting time may not pur-
CFREU, 2 TEU (read together with Art. 10 sue any activities other than those provided for
ECHR).220 The ECJ has not yet set up a “gen- or authorised by the Commissariaat voor de
eral rule” in this regard. However, some “ba- Media” (the Dutch regulatory authority).
sic tendencies” could be drawn from the still According to the ECJ, this provision con-
leading judgments “Commission v. Nether- tributes to the attainment of establishing a
lands”, “Stichting Collectieve Antennevoorz- pluralistic and non-commercial broadcasting
iening Gouda v. Commissariaat voor de Me- system:
dia”, “Vereniging Veronica Omroep Organ- “It seeks to prohibit national broadcasting
isatie v. Commissariaat voor de Media” and organisations from engaging in activities
“TV10 SA v. Commissariaat voor de Media” which are alien to the tasks assigned to
dealing with single provisions of the – then them by the Law or undermine the aims
in force – Dutch “Mediawet” (Dutch Law of thereof, in the view of the Commissariaat
21 April 1987, governing the supply of radio voor de Media. Thus, in particular, it pro-
and television programmes, radio and televi- vides that the financial resources available
sion licence fees and press subsidies). The ECJ, to the national broadcasting organisations
in general terms, stated that the Mediawet is to enable them to ensure pluralism in the
“designed to establish a pluralistic and audio-visual sector must not be diverted
non-commercial broadcasting system and from that purpose and used for purely
thus forms part of a cultural policy intend- commercial ends”.222
ed to safeguard, in the audio-visual sector, According to this, rules/regulations that pro-
the freedom of expression of the various hibit broadcasting organisations established
(in particular social, cultural, religious and in a Member State from investing in a broad-
philosophical) components existing in the casting organisation established or to be es-
Netherlands. [...] Those cultural-policy ob- tablished in another Member State must at
jectives are objectives relating to the pub- least ensure the pluralistic and non-commer-
lic interest which a Member State may le- cial character of the audiovisual system (in the
gitimately pursue by formulating the stat- respective country). Otherwise, a violation of
utes of its own broadcasting organisations a fundamental freedom by such provisions
in an appropriate manner.“221 can be assumed. It is essential to make rules,
In the case ”Vereniging Veronica Omroep which prohibit national broadcasting organ-
Organisatie v. Commissariaat voor de Media” isations from setting up commercial radio and
the ECJ dealt with Art. 57(1) Mediawet. The television companies abroad – for the pur-
provision states that “apart from producing pose of providing services directed towards
their State of establishment –, in order to en-
sure that such organisations cannot improp-
220
Cf. A. Rossnagel/W. Sosalla/T. Kleist, Der Zugang zur digi-
talen Satellitenverbreitung, Gutachten im Auftrag der gemein- erly evade the obligations deriving from the
samen Stelle ‘Digitaler Zugang’ der Landesmedienanstalten, national legislation concerning the pluralistic
Visitas Verlag GmbH 2004, p. 78, 79.
221
ECJ, Case C-288/89, Stichting Collectieve Antennevoorz- and non-commercial content of programmes.
iening Gouda v. Commissariaat voor de Media, [1991] ECR
I-4007, paras. 22, 23; Case C-353/89, Commission v. Neth- In the case “Stichting Collectieve Anten-
erlands (Mediawet II), [1991] ECR I-4069, paras. 29, 30; Case
C-148/91, Vereniging Veronica Omroep Organisatie v. Com-
missariaat voor de Media, [1993] ECR I-487, paras. 9, 10. Also
affirmed in ECJ, Case C-23/93, TV10 SA v. Commissariaat voor 220
Vereniging Veronica Omroep Organisatie v. Commissariaat
de Media, [1994] ECR I-4795, paras. 18, 25. voor de Media, ibid., para. 11.
European Media Law and Policy Framework 47

nevoorziening Gouda v. Commissariaat voor “may indeed constitute an overriding require-

de Media” the ECJ was confronted with ment relating to the general interest, which
Art. 66(1) para. b) Mediawet. The provision justifies a restriction on the freedom to pro-
states that the operator of a cable network vide services”, it ruled that
may “transmit programmes [...] which are “conditions affecting the structure of for-
broadcast by a foreign broadcasting body or eign broadcasting bodies cannot [...] be
a group of such bodies as broadcasting pro- regarded as being objectively necessary
grammes, in accordance with the legislation in order to safeguard the general interest
in force in the broadcasting country. If such in maintaining a national radio and televi-
programmes contain advertisements, they sion system which secures pluralism.”
may be transmitted, solely provided that the The main reason for this ruling was that
advertisements are produced by a separate le- the Dutch broadcasting bodies did not have
gal person, that they are clearly identifiable as to fulfil all the same conditions (especially the
such and clearly separated from other parts obligation imposed on broadcasting organisa-
and are not broadcast on Sundays, that the tions in other Member States not to permit a
duration of such advertisements does not third party to make a profit), which the for-
exceed 5% of the total air time utilised, that eign broadcasting bodies had to observe. As
the broadcasting body fulfils the conditions long as restrictions do not apply to national
laid down in Article 55(1) and that the en- and foreign persons in the same way, such
tire revenue is used for the production of pro- restrictions cannot be justified by a cultural
grammes. [...].” policy aiming to safeguard pluralism. There-
This provision contains two “barriers”: fore, the national legislator has to formulate
First, operators of cable networks established the same requirements for its own nationals
in a Member State can only transmit radio or and for foreign operators.
television programmes supplied by broadcast- In the case “TV10 SA v. Commissariaat
ers established in other Member States if those voor de Media” the ECJ again was confront-
broadcasters satisfy the conditions in their ed with Art. 66 of the – then in force – Me-
country. Second, if such programmes con- diawet. However this time the question was
tain advertisements, they have to fulfil special essential, whether the provisions on the free-
conditions: especially, such programmes have dom to provide services are to be interpreted
to be produced by a separate company. The as precluding a Member State from treating
first “barrier” is of particular interest as it re- a broadcasting body constituted under the
lates to the structure of broadcasting bodies law of another Member State and established
established in other Member States. For the in that State, as a domestic broadcaster if its
Dutch Government the restriction in the Me- activities are wholly or principally directed to-
diawet is justified by “imperatives relating to wards the territory of the first Member State
cultural policy” as this policy is “to safeguard (against the background that the broadcast-
the freedom of expression of the various – in ing body was established in the other Mem-
particular social, cultural, religious and philo- ber State in order to avoid the rules which
sophical – components of the Netherlands, would be applicable to it if it were established
in order that this freedom may be capable of within the first Member State). The ECJ came
being exercised in the press, on the radio or to important findings: it decided that a radio
on television.” Although the ECJ recognised and television organisation which establishes
that a cultural policy understood in that sense itself in another Member State in order to
48 The Media in South-East Europe

provide services there which are intended for undertakings, which is capable of affecting
the first State’s territory could be regarded trade between Member States, has an anti-
as a domestic broadcaster. The treatment of competitive object, or an actual or potential
a broadcasting body constituted under the anti-competitive effect. Secondly, it has to
law of another Member State as equal to a be determined whether a restrictive agree-
domestic broadcaster does not jeopardise the ment also produces pro-competitive benefits
right to freedom of expression guaranteed by that outweigh the restricting effects.226 In the
Art. 10 and Art. 14 of the ECHR as long as media sector, the question as to whether a
a national “media policy” (here: the Nether- cartel should be prohibited or not plays an
lands broadcasting policy in form of the Medi- important role especially when it comes to
awet) upholds pluralism, which is – according collective or exclusive agreements on the sell-
to the ECJ – ing or acquisition of sports rights227, or with
“[...] intended to preserve the diversity of regard to the collective management of the
opinions, and hence freedom of expres- author’s right to communicate and reproduce
sion, which is precisely what the European his works (online).
Convention on Human Rights is designed
to protect.”223 (2) Prohibition of the abuse of a dominant po-
sition
bb) Rules on Competition Art. 102 TFEU prohibits “any abuse by one
The basic rules on competition are Art. 101 or more undertakings of a dominant position
TFEU (prohibition on cartels), Art. 102 TFEU within the internal market or in a substantial
(prohibition on the abuse of a dominant posi- part of it [...] in so far as it may affect trade
tion), Art. 106 TFEU (as a special competition between Member States”. While Art. 101
rule concerning public undertakings and un- TFEU aims at preventing the creation of new
dertakings bestowed with special or exclusive market power by means of agreements, deci-
rights), the Council Regulation 139/2004/EC224 sions, concerted practices or concentrations,
(Merger Control Regulation, ECMR), and Arts. Art. 102 TFEU is directed towards the abuse of
107 ff. TFEU (State aid). The latter will be ex- market power, where such power already ex-
amined in an “extra-part” (cf. infra cc)). ists.228 To determine whether an undertaking
has abused its dominant position, one needs
(1) Prohibition of cartels firstly to define the relevant product and geo-
Art. 101 TFEU aims to ensure that “companies graphic market(s)229, secondly to determine
play fair” by taking action against all business the dominance of the undertaking, and thirdly
practices between two or more undertakings
that restrict free competition in the internal
market.225 To assess this, it – firstly – has to 226
Commission, Notice 2004/C 101/08, Guidelines on the Ap-
be clarified whether an agreement between plication of Art. 81(3) EC, [2004] OJ C 101/97, para. 11.
227
Collective marketing (also an issue in the context of the pro-
hibition on the abuse of a dominant position) of the right to
broadcast certain sport events, for instance, has been in the
focus of EC antitrust law on several occasions; see Commis-
223
ECJ, Case C-23/93, TV10 SA v. Commissariaat voor de Me- sion, Decision 2003/778/EC, UEFA Championsleague (Case
dia, [1994] ECR I-4795, para. 25. C.2/37.398), [2003] OJ L 291/25; Commission, Notice, FA Pre-
224
Council Regulation 139/2004/EC of 20 January 2004 on the mier League (Cases C.2/38.173 and 38.463), [2003] OJ L 115,
Control of Concentrations between Undertakings, [2004] OJ p. 3.
L 24, p. 1. 228
See D.G. Goyder, EC Competition Law (5th edn, Oxford Uni-
225
Cf. M. Elspaß/M. Kettner, Comments on Art. 81 EC, in: Cas- versity Press, 2009), pp. 324 et seq.
tendyk/Dommering/Scheuer, European Media Law, Alphen a/d 229
For market definitions in the media sector, see R. Capito, in:
Rijn 2008, Art. 81 EC, rec. 1. EMR, Media Markets Definitions 2003 and 2005.
European Media Law and Policy Framework 49

to decide whether the undertaking is acting in not to adopt measures which lead to enter-
an abusive manner and therefore affects trade prises acting contrary to European Union law,
between Member States. The field of collective even if they are State enterprises or enterprises
administering of copyrights230 and the refusal which have been granted special or exclusive
to supply media content231 are two of the most rights.234
important fields of application for Art. 102
TFEU in the media sector. (4) Merger control
The European Community Merger Regulation
(3) Public undertakings and special rights (ECMR) applies – in principle – to all concentra-
granted to undertakings tions with a Union-wide dimension (Art. 1(1)
Art. 106 TFEU aims to prevent Member States ECMR), which can be assumed, if the com-
from enacting or maintaining in force measures bined aggregate world-wide turnover of all
relating to public undertakings and undertak- the undertakings concerned is more than EUR
ings to which Member States grant special or 5 billion and the aggregate Union-wide turn-
exclusive rights which derogate from other ob- over of each of at least two of the undertak-
ligations under the Treaty, especially from the ings concerned is more than EUR 250 million,
competition rules in Arts. 101 to 109 TFEU. unless each of the undertakings concerned
According to the ECJ, Art. 106 TFEU must be achieves more than two-thirds of its aggregate
interpreted as being intended to ensure that Union-wide turnover within one specific Mem-
the Member States do not take advantage of ber State (Art. 1(2) ECMR). Art. 1(3) ECMR sets
their relations with those undertakings in order out special thresholds catching concentrations
to evade the prohibitions laid down by other which, even though they are below the thresh-
Treaty rules addressed directly to them, by olds of Art. 1(2) ECMR, show consequences
obliging or encouraging those undertakings to in at least three Member States. It is the task
engage in conduct which, if engaged in by the of the Commission to delineate the relevant
Member States, would be contrary to those product and geographic market and to deter-
rules.232 However, the granting of a govern- mine whether a concentration is compatible
ment broadcasting monopoly has been held with the common market by conducting the
not to form per se an infringement upon this so-called SIEC-test235 under Art. 2(3) ECMR.236
provision.233 Member States are (only) obliged

230
E.g. Commission, Decision 71/224/EEC, GEMA I (Case 234
Cf. ECJ, Case C-260/89, ERT, [1991] ECR I-2925, para. 12;
IV/26.760), [1971] OJ L 134/15; Decision 72/268/EEC, GEMA Case C-41/90, Höfner and Elser, [1991] ECR I-1979, para 29; J.-
II (IV/26.760), [1972] OJ L 166/22 and Decision 82/204/EEC, D. Braun, Comments on Art. 86 EC, in: Castendyk/Dommering/
GEMA III (IV/29.971), [1982] OJ L 94/12; see also ECJ, Case Scheuer, European Media Law, Alphen a/d Rijn 2008, Art. 86
7/82, GVL v. Commission, [1983] ECR 483; ECJ, Case 127/73, EC, paras. 8, 9.
BRT v. SABAM, [1974] ECR 313; ECJ, Case 395/87, Tournier, 235
Cf. the analysis of the meaning of the SIEC-test (“significant
[1989] ECR 2521. impediment of effective competition”) N. Horner, Unilateral Ef-
231
E.g. Commission, Decision 2003/778/EC, UEFA Champion- fects and the EC Merger Regulation – How The Commission
sleague (Case C.2/37.398), [2003] OJ L 291/25; Commission, Had its Cake and Ate it Too, [2006] Hanse Law Review, p. 23
Decision 2005/396/EC, Bundesliga (Case C.2/37.214), [2005] et seq.; S. Baxter/F. Dethmers, Unilateral Effects Under the Eu-
OJ L 134/46. The leading case on refusal to grant access to ropean Merger Regulation: How Big is the Gap?, [2005] ECLR
content is Magill, ECJ, Joined Cases C-241/91 and C-242/91, 380 et seq.; C.-D. Ehlermann/S. B. Völcker/G. A. Gutermuth,
Magill, [1995] ECR I-743. Unilateral Effects: The Enforcement Gap under the Old EC
232
ECJ, Case C-157/94, Commission v. Netherlands, [1997] Merger Regulation, [2005] World Competition 28(2), p. 193
ECR I-5699, para. 30. et seq.
233
The ECtHR ruled in 1993, that a ban on setting up com- 236
The Commission has dealt with various mergers under
mercial stations in Austria was in breach of Art. 10 ECHR (see the ECMR, e.g. Decision 2005/188/EC, Sony/BMG (Case
above). This means that the legal obligations under Art. 10 COMP/M.3333), [2005] OJ L 63, p. 30; Decision 2007/595/EC,
ECHR for the Member States are more far-reaching than under Universal/BMG Publishing (Case COMP./M.4404), [2007] OJ L
Art. 106 TFEU. 230, p. 12.
50 The Media in South-East Europe

cc) Particularly: EU rules on State aid porarily increase the de minimis threshold to
The fundamental provision of European law EUR 500,000 (cash grant) per undertaking239);
governing the evaluation of public funding the ceiling applies to the total of all public as-
systems for broadcasting, cinema/film, press sistance considered to be de minimis aid. It
or (Internet-)broadband is Art. 107(1) TFEU. In will not affect the possibility of the recipient
principle, this provision prohibits aid granted to obtain other State aid under schemes ap-
to certain undertakings by a Member State or proved by the Commission; the regulation
through State resources which distorts com- only applies to “transparent” forms of aid,
petition and affects trade between Member which means aid for which it is possible to
States. Art. 106(2) TFEU provides an excep- determine in advance the gross grant equiva-
tion in favour of undertakings entrusted with lent. The General Block Exemption Regula-
the operation of services of general economic tion240 identifies aid for general training mea-
interest.237 Art. 107(2) and (3) TFEU also pro- sures, up to an aid intensity of 80%, as State
vide a limited derogation from the rules of aid that can be considered acceptable. Such
the Treaty. Of particular interest for the media training aid, not exceeding EUR 2 million per
sector are the exemptions to facilitate the de- training project, is also exempted from indi-
velopment of certain economic activities or of vidual notification.
certain economic areas within the meaning of
Art. 107(3)(c) TFEU and for cultural State aid (1) Financing public service broadcasting and
as defined in Art. 107(3)(d) TFEU. effective supervision of the fulfilment of the
Small amounts of State aid may be ex- public service broadcasting obligations
empted from the above-mentioned rules, The far-reaching EU State aid rules are, so
since they do not have a potential effect on to speak, “specified” in further “European
competition and trade between Member rules” that need to be taken into account241:
States. The Commission Regulation on so- The 1997 Amsterdam Protocol242 stipu-
called de minimis aid238 provides that State
aid measures shall be deemed not to meet 239
Communication from the Commission - Temporary frame-
all the criteria of Art. 107(1) TFEU, and shall work for State aid measures to support access to finance in the
current financial and economic crisis (consolidated version of
be exempt from the notification requirement the Temporary Framework adopted on 17 December 2008, as
amended on 25 February 2009), [2009] OJ C 83, p. 1.
of Art. 108(3) TFEU, if they fulfil a number 240
Commission Regulation (EC) No 800/2008 of 6 August
of conditions, namely (1) the ceiling for the 2008, declaring certain categories of aid compatible with the
common market in application of Articles 87 and 88 of the
aid covered by the de minimis rule is in gen- Treaty (General block exemption Regulation) (Text with EEA rel-
evance), OJ [2008] L 214, p. 3.
eral EUR 200,000 per undertaking over any 241
See C. Bron, “Financing and supervision of public service
three fiscal-year period (in the present time broadcasting”, IRIS plus 2010-4, pp. 7 ff, on current trends on
the financing of public service broadcasting; M. Ridinger, “The
of financial and economic crisis, the Com- Public Service Remit and the New Media”, IRIS plus 2009-6,
pp. 7 ff.; and EMR et al., “Public Service Media According to
mission has considered it necessary to tem- Constitutional Jurisprudence – The Human Rights and Consti-
tutional Law Dimension of the Role, Remit and Independence”,
2 July 2009, pp. 15 et seq. (available at: http://www.ebu.ch/
en/legal/other/EMR_Study_PSM.php) with regard to current
trends on the public service remit.
237
Art. 14 TFEU emphasises the importance of these services.
241
Treaty of Amsterdam amending the Treaty of the European
Under this provision, the European Parliament and the Council Union, the Treaties Establishing the European Communities
can - without prejudice to the competence of Member States and certain related acts – Protocols – Protocol on the Treaty
(see below) - in future, by means of regulations, establish prin- Establishing the European Community – Protocol on the sys-
ciples and conditions, particularly economic and financial con- tem of public broadcasting in the Member States of 1 May
ditions, for the functioning of these services. 1997, [1997] OJ C 340, 1997, p. 109 (now: Protocol No. 29,
238
Commission Regulation (EC) N 1998/2006 of 15 December attached to the Treaty of Lissbon amending the Treaty on Eu-
2006 on the application of Articles 87 and 88 of the Treaty to ropean Union and the Treaty establishing the European Com-
de minimis aid, [2006] OJ L 379, p. 5. munity, signed in Lisbon, 13 December 2007).
European Media Law and Policy Framework 51

lates that the Member States can fund public overcompensation and cross-subsidisation,
service broadcasting insofar as such funding is and to scrutinise the level and the use of
granted to broadcasting organisations for the ‘public service reserves’. It is within the
fulfilment of the public service remit and does competence of Member States to choose
not affect trading conditions and competition the most appropriate and effective control
in the Union to an extent which would be mechanisms in their national broadcasting
contrary to the common interest.243 systems, also taking into account the need
The European Commission confirmed, to ensure coherence with the mechanisms
in line with the Amsterdam Protocol, its ap- in place for the supervision of the fulfil-
proach to the examination of public fund- ment of the public service remit.”
ing of audiovisual services (again) in its 2009 Here, the Commission mentions the cru-
Broadcasting Communication244, stating that cial aspect of the dual control over the use of
the Member States are “free to choose” the public funding. There are two types of con-
means of financing public service broadcast- trol: financial control over how funds are used
ing.245 Funding schemes are divided into “sin- and content-related control aimed at guar-
gle funding” and “mixed funding”. The “sin- anteeing the fulfilment of the public service
gle funding” category comprises all systems in remit. Still, both forms of control should be
which public service broadcasting is financed viewed together, since the evaluation of the
only through public funds, in whatever form. proper use of funds and that of the fulfilment
“Mixed funding” (previously known as “dual of the public service remit are linked together.
funding”) systems comprise a wide range of In its judgment of 26 June 2008 in the SIC
schemes, where public service broadcasting is v. Commission case246 regarding measures by
financed by a combination of State funds and the Portuguese Republic for the public service
revenues from commercial activities, such as broadcaster RTP in order to finance the public
the sale of advertising space or programmes service remit, the Court refers to the state-
and the provision of services against payment. ments of the Amsterdam Protocol and to the
In addition, Rec. 77 of the 2009 Broadcast- Resolution of the Council and of the Member
ing Communication states, with regard to the States of 25 January 1999 concerning broad-
control of funding systems for public service casting.
broadcasting, that the Member States: On the questions of whether the remit is
“[...] shall ensure regular and effective con- fulfilled by public service broadcasting and
trol of the use of public funding, to prevent whether compliance with financial require-
ments is secured, the Court distinguishes two
manners of such an examination:
243
Incidentally, these provisions correspond with the Resolution
of the Council and of the representatives of the governments Firstly, it is necessary to check whether the
of the Member States, meeting within the Council, on 25 Janu- quality standards are met, since these require-
ary 1999 concerning public service broadcasting, [1999] OJ C
30, p. 1, Rec. 2. ments, especially at the national level, are the
244
Communication from the Commission of 2 July 2009 on
the application of State aid rules to public service broadcasting key feature of services of general economic in-
(Text with EEA relevance), [2009] OJ C 257, p. 1. The 2009 terest in the broadcasting sector. There is, the
Broadcasting Communication replaces the Communication
from the Commission on the application of State aid rules to Court says, no reason for State funding to be
public service broadcasting of 15 November 2001, [2001] OJ
C 320, p. 5.
245
2009 Broadcasting Communication, ibid., Rec. 58. However,
this is on condition that the Commission has verified, under
Art. 106(2) TFEU, that the State funding does not affect com- 246
CFI, Case T-442/03, SIC – Sociedade Independente de Co-
petition in the common market in a disproportionate manner municação, SA v Commission of the European Communities,
(rec. 59). [2008] ECR, p. II-1161.
52 The Media in South-East Europe

continued if the public service broadcasters do With regard to supervision of the fulfilment
not adhere to any particular quality standards of the public service obligations, para. 54 of
and thus operate on the market like any other the Broadcasting Communication states:
providers, such as the commercial broadcast- “[...] Such supervision would only seem ef-
ers. This is a remit to be attributed to supervi- fective if carried out by a body effectively
sory authorities/bodies at national level (only). independent from the management of the
A different question, according to the public service broadcaster, which has the
Court, is whether the services commissioned powers and the necessary capacity and re-
have actually been provided in the way deter- sources to carry out supervision regularly, and
mined in advance and whether the costs cor- which leads to the imposition of appropriate
responding to these services have not been ex- remedies in so far it is necessary to ensure re-
ceeded. Here, the Commission is able to carry spect of the public service obligations.”
out checks: it can, for example, consult audits For financial control mechanisms to be ef-
by external auditors if they contain information fective, however, the Communication deems
“relevant to the assessment of the costs for the it necessary that these be “carried out by an
purposes of its assessment of whether the aid external body independent from the public
is proportional within the context of Art. 86(2) service broadcaster at regular intervals, pref-
ECT”. Only then is it possible to conduct a sys- erably on a yearly basis” (para. 78 of the
tematic examination of the cost-performance Broadcasting Communication).
ratio with respect to the remit.
The Commission recognises that it is (2) Aid Schemes for Cinema/Film
within the competence of the Member State National cinema aid schemes often fall under
to choose the mechanism to ensure effective Art. 107(1) TFEU.247 The question is then inter
supervision of the fulfilment of the public ser- alia248, whether Art. 107(3)(d) TFEU is appli-
vice broadcasting obligations. Especially, the cable or not. The Cinema Communication249
establishment of an independent (regulatory)
body in the audiovisual sector is deemed the
preferred way to carry out the supervising
247
See also C. Bron/P. Matzneller, Governance of Film Aid in
functions assigned to it in an effective manner. South-East Europe, in: IRIS plus 2011-2, p. 7 et seq., on the
“whole picture” of the European framework concerning direct
Consequently, the Commission recommends film funding.
that public service broadcasters be monitored 248
Another problem lies within national film aid provisions that
make the State aid conditional to the realisation of certain film-
by a body independent from the broadcaster. making activities in a single Member State (so-called “territo-
rialisation clauses”). Conflicts could occur especially with the
This body should have appropriate powers and freedom to provide services and the freedom of establishment;
resources to carry out a regular supervision and cf. M. D. Cole, Klein, aber fein: Luxemburgs Filmförderung im
Herzen Europas, p. 407, 422, in: Europäisches und nationales
impose possible remedies. The independent Medienrecht im Dialog, Festschrift aus Anlass des 20-jähri-
gen Bestehens des Instituts für Europäisches Medienrecht e.V.
body must monitor the actions of the public (EMR), Band 40, Baden-Baden 2010.
service broadcaster in order to ensure that na- 249
Communication from the Commission to the Council, the
European Parliament, the Economic and Social Committee and
tional definitions of public service broadcasting the Committee of the Regions of 26 September 2001 on cer-
tain legal aspects relating to cinematographic and other au-
remits are underpinned by independent, ro- diovisual works, COM (2001) 534 final, [2002] OJ C 43, p. 6.
bust and enforceable mechanisms to monitor The Commission decided to continue to apply the criteria until
such time as new rules on State aid to cinematographic and
and render entrusted broadcasters account- other audiovisual works come into effect, or, at the latest, until
31 December 2012, see Communication from the Commission
able for the fulfilment of the associated obliga- of 7 February 2009 concerning the State aid assessment crite-
tions and for the level of public funding (and ria of the Commission communication on certain legal aspects
relating to cinematographic and other audiovisual works (Cin-
regulatory assets) assigned to this purpose. ema Communication), [2009] OJ 31, p. 1.
European Media Law and Policy Framework 53

of the Commission provides for special rules lowed in order to ensure that the aid has a
on the assessing of funding provided for cin- neutral incentive effect and consequently
ematographic and other audiovisual works un- that the protection/attraction of those
der Art. 107(3)(d) TFEU. The Communication specific activities in/to the Member State
requires, besides the basic EU principles of pro- granting the aid is avoided.”
hibiting discrimination on the grounds of na- The first criterion shows that the Commis-
tionality, that freedom of establishment, free sion accepts – with reference to the subsidiar-
movement of goods and freedom to provide ity principle – the primary cultural competence
services have been respected (Arts. 18, 34, 36, of the Member States to define a “cultural
45, 49, 54 and 56 TFEU), and, in addition, that product”. The Commission, in principle, (only)
the following four criteria250 are met: assesses the existence of a test that safeguards
“The aid is directed to a cultural product. the cultural content of the aided film; mean-
Each Member State must ensure that the ing the cultural product. To fulfil the “cultural
content of the aided production is cultural criteria” it could be enough to appraise “the
according to verifiable national criteria (in professional capacity and reputation (creative
compliance with the application of the and technical) of the promoters and creative
subsidiarity principle). collaborators, as well as the contribution to
The producer must be free to spend at be made by the project to the expression,251
least 20% of the film budget in other to consider the eligibility of the aided project
Member States without suffering any re- which evaluates the cultural value of a certain
duction in the aid provided for under the State, or the significance of artistic/creative in-
scheme. In other words, the Commission put of the qualifying film productions”252, or
accepted as an eligibility criterion territo- if the aid scheme does not provide for auto-
rialisation in terms of expenditure of up matic aid, but an “aid committee” decides on
to 80% of the production budget of an the admissibility and on the exact amount of
aided film or TV work. the aid based on (mainly) cultural criteria.253
Aid intensity must in principle be limited Besides, it should be mentioned that neither
to 50% of the production budget with pornographic movies nor commercials fulfil
a view to stimulating normal commercial the criteria of a “cultural product”.
initiatives inherent in a market economy With regard to the third criterion, the
and avoiding a bidding contest between Commission is willing to accept aid intensi-
Member States. Difficult and low bud- ties of the Member States higher than 50% in
get films are excluded from this limit. cases of limited geographic extension of cer-
The Commission considers that, under tain languages and cultures, given the limited
the subsidiarity principle, it is up to each circulation of those cultural products within
Member State to establish a definition of the European Union and world markets. Such
difficult and low budget film according to projects must especially not be “difficult”
national parameters. and/or “low budget” films.
Aid supplements for specific filmmaking
activities (e.g. post-production) are not al-
251
State aid No NN 49/97 and N 357/99, Ireland "Section
35/481" tax-based film investment incentive, para. 3.11.
252
State aid No N 237/2000, Ireland, Extension of aid schemes
250
They were established in the decision of 3 June 1998 on the to film and TV production, p. 6.
French automatic aid scheme to film production, N 3/98, and 253
Staatliche Beihilfe Nr. N 513/2003 (ex CP 40/2001), Öster-
are listed in the Communication from the Commission of 26 reich, Förderung von Fernsehproduktionen in Österreich –
September 2001, COM (2001) 534 final, ibid., p. 7. bundesweite Regelung “Fernsehfilmförderung“, para. 17.
54 The Media in South-East Europe

The Cinema Communication refers to the papers and the corresponding electronic me-
production of films, but has also been applied dia published in national minority languages,
(by way of analogy) to the development of such as Sámi and Romany, and in Swedish,
film projects, including the writing of screen- as well as for the production of Swedish-
plays254 and the promotion and distribution of language news services under the terms of
films.255 According to the diverse applications, Art. 107(3)(c) TFEU. The targeted beneficia-
it could be said that the public support of cin- ries are small circulation newspapers (with a
emas is in a good part being shaped by deci- maximum average circulation of up to 15,000
sions of the Commission. copies) and the subsidies cannot exceed 40%
With regard to the digitisation of Europe- of the operating costs of the newspapers. The
an cinemas256, the Commission has prepared overall budget of the measure is EUR 500,000
a Communication on Opportunities and Chal- per year. In view of the Commission, the
lenges for European Cinema in the Digital Era, scheme contributes to media pluralism and to
based on consultations from all stakeholders the protection of minority languages in Fin-
on digital cinema.257 Besides, the Commission land, while having a limited negative impact
announced a new strategy aiming to help Eu- on competition and trade between Member
ropean cinemas to go digital and to encour- States.259
age more of them to screen European-made In 2010, the Commission approved a
films.258 In its strategy, the Commission sets (modified) Swedish aid scheme in favour of
out options for financial support, including newspapers. The aid includes a maximum
State aid and backing from the European Re- aid level of EUR 4.8 million for metropolitan
gional Development Fund and the EU MEDIA newspapers over a period of five years, start-
programme. ing from 2011. Extra aid can only be granted
to cover up to 40% of the additional costs
(3) Aid Schemes for the Press deriving from the specific situation in the met-
In the absence of specific EU guidelines for ropolitan newspaper markets (e.g. extra edi-
dealing with State aid to the press sector, the torial costs and Sunday publishing). Support
Commission (mostly) assesses measures di- ceilings were fixed at max 40% of total op-
rectly under Art. 107(3)(c) TFEU. erating costs for high and medium frequency
In 2008, for instance, the Commission au- newspapers and at max 75% for low-fre-
thorised subsidies granted by Finland to news- quency newspapers. The beneficiaries of the
aid do have reporting obligations to enable
the granting authority to verify the use of the
aid and, in its form, to establish annual ac-
254
E.g. Commission, Staatliche Beihilfe N 181/2004, 16 June
2004, Förderung von Film- und Fernsehproduktionen in Baden- counts to be submitted to the Commission.260
Württemberg: Medien- und Filmgesellschaft Baden-Württem-
berg mbH, paras. 13 et. seq.
255
E.g. Commission, Ayuda de Estado n N 368/05, 30 Septem- (4) Aid Schemes to the Development of Broad-
ber 2005, Ayudas a la promoción de obras audiovisuales por
Andalucía, para. 2.3. casting Technologies/ Broadband Internet
256
See F.J. Cabrera Blázquez, “Public Aid for Digital Cinema“, The introduction of “digital video broadcast-
IRIS plus 2010-2, pp. 7 et seq., on current trends on the fund-
ing of the digitisation of cinemas.
257
Communication from the Commission of 24 September
2010 to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Re-
gions On opportunities and challenges for European cinema in
259
Commission, State aid N 537/2007, 20 May 2008, Finland
the Digital era, COM(2010) 487 final. – Aid to the press.
258
Cf. press release from the Commission of 24 September
260
Commission, State aid E 4/2008, 20 July 2010, Sweden –
2010, IP/10/1168. Publishing of newspapers.
European Media Law and Policy Framework 55

ing over a terrestrial network” (DVB-T) as well for a successful change (e.g. an effective strat-
as broadband internet have also raised State egy to inform consumers about programme
aid issues in a number of Member States. Es- availability on digital platforms and the equip-
pecially Art. 107(3)(c) TFEU has played an im- ment needed to receive such programmes).264
portant role concerning State aid for private In the field of Internet high-speed connec-
broadcasters to induce them to switch from tivity, the Commission sets one of its future
analogue to digital terrestrial television261, or targets on the guarantee of universal high-
in cases dealing with the public funding of speed and ultra-fast broadband coverage.265
broadband Internet connectivity.262 Therefore, the Commission has adopted a
In its Communication of 17 September Communication outlining a common frame-
2003 on the transition from analogue to digi- work within which EU and national policies
tal broadcasting, the Commission presented should be developed to meet the Europe
two main conditions for State intervention 2020 targets.266 These policies should, in
in the switchover process from analogue to particular, lower the costs of broadband de-
digital: First, the intervention from public au- ployment in the entire EU territory, ensuring
thorities to facilitate and supervise the process proper planning and co-ordination and re-
could be justified insofar as general interests ducing administrative burdens. For instance,
are at stake; that is, how far there are poten- the competent authorities should ensure that
tial benefits and/or problems for the society as public and private civil engineering works sys-
a whole, rather than just for certain groups or tematically, provide for broadband networks
individuals. Second, in the case of market fail- and in-building wiring, clearing of rights of
ure, meaning that the market powers them- way and mapping of available passive infra-
selves are not able to fulfil the collective wel- structure suitable for cabling.
fare.263 In its Communication of 24 May 2005, In 2009, the Commission published guide-
the Commission presented the main obstacles lines for the application of State aid rules in
to a rapid switchover (e.g. the absence of po- relation to rapid deployment of broadband
litical decisions such as a fixed date for the networks.267 The guidelines especially speci-
national analogue switch-off or political deci- fy how State measures could be compatible
sions not to set switch-off dates, and the lack with Art. 107(3)(c) TFEU. In this regard, the
of a common European approach) and factors Commission assesses its balancing test and its
application to aid for broadband network de-
ployment. The Commission also states in its
261
E.g. CFI, Case T-8/06, FAB v Commission, [2009] not yet
published in the OJ; Case T-21/06, Germany v Commission,
[2009] not yet published in the OJ; Case T-24/06, MABB v
Commission, [2009] not yet published in the OJ; Case T-2/08, 264
Communication from the Commission to the Council, the
LfM v Commission, [2009] not yet published in the OJ; Com- European Parliament, the European Economic and Social com-
mission, State Aid C 52/2005, 24 January 2007, Italy – Digital mittee and the Committee of the Regions of 24 May 2005 on
Decoders. The Commission has recently opened two investiga- accelerating the transition from analogue to digital broadcast-
tions on Spanish National Transition Plan for digitisation and ing, COM(2005) 204 final, pp. 4 et seq.
extension of terrestrial television network, see IP/10/1195. 265
Communication from the Commission to the European Par-
262
E.g. Commission, State Aid N 622/2003, 16 March 2005, liament, the Council, the European Economic and Social Com-
Austria – Digitalisierungsfonds; State Aid N 382/2004, 3 May mittee and the Committee of the Regions of 19 May 2010 “A
2005, France – Mise en place d’une infrastructure haut débit Digital Agenda for Europe“, COM(2010) 245 final, p. 19.
sur le territoire de la région Limousin (DORSAL); State Aid N 265
Communication from the Commission of 26 August 2010 to
263/2005, 20 October 2005, Austria – Breitband Kärnten. the European Parliament, the Council, the European Economic
263
Communication from the Commission to the Council, the and Social Committee and the Committee of the Regions – A
European Parliament, the European Economic and Social Com- Digital Agenda for Europe, COM(2010) 245 final/2.
mittee and the Committee of the Regions of 17 September 267
Communication from the Commission of 30 September
2003 on the transition from analogue to digital broadcasting 2009 on Community Guidelines for the application of State aid
(from digital 'switchover' to analogue 'switch-off'), COM(2003) rules in relation to rapid deployment of broadband networks,
541 final., pp. 9 et seq. [2009] OJ C 235, p. 7.
56 The Media in South-East Europe

guidelines that businesses should support ef- calls for Europe’s film heritage to be methodi-
forts to speed up the renewal and extension cally collected, catalogued, preserved and re-
of broadband networks in order to close sup- stored so that it can be passed on to future gen-
ply gaps, particularly in rural areas. erations. EU countries were asked to inform the
Commission every two years of what they have
dd) The “Culture-clause“ done in this regard. The second implementation
Art. 167 TFEU highlights the “cultural aspect” report has been published recently.271
of the Union. The object and purpose of the Finally, the Convention on the Protection
norm are both to clarify and to limit the cul- and Promotion of the Diversity of Cultural Ex-
tural competence of the Union: Art. 167(1) pressions272 should be mentioned. This UNESCO
TFEU states that “the Union shall contribute treaty was jointly negotiated by the European
to the flowering of the cultures of the Mem- Commission and by the European Council. Its
ber States, while respecting their national main objective is to take into account cultural
and regional diversity and at the same time diversity when developing other policies (cf. the
bringing the common cultural heritage to the objectives listed in Art. 1). The preamble em-
fore”. Art 167 (4) TFEU requires the Union to phasises “the need to incorporate culture as a
take cultural aspects into account in its action strategic element in national and international
under other provisions of that Treaty, in partic- development policies, as well as in international
ular in order to respect and to promote the di- development co-operation, taking into account
versity of its cultures. The meaning of cultural also the United Nations Millennium Declara-
aspects in this regard is limited to the cultural tion (2000) with its special emphasis on poverty
fields mentioned in Art. 167(2) TFEU, where eradication” and “the importance of culture
European Union action is extended to artistic for social cohesion in general, and in particular
and literary creation, including the audiovi- its potential for the enhancement of the status
sual sector (indent 4). The EU’s supplement- and role of women in society”. Media including
ing actions do not only cover print media like broadcasting (cf. Art. 6(2)(h), film (cf. Art. 14) as
books, but also encompass media which dis- well as the “new media” is covered by the Con-
seminate cultural contents by auditory and vi- vention. Art. 20 of the UNESCO Convention
sual means.268 Furthermore, Art. 167(2) TFEU defines the relationship with other international
authorises the Union to support the produc- treaties (like the WTO agreements) and specifies
tion and dispersion of broadcasting as well as the linkage between these treaties in the case
Internet programmes, as far as their cultural of overlap of rights and obligations. This Article
components are at stake.269 also specifies the interpretation of the Conven-
Art. 167 AEUV also plays a role for the EU tion in relation to other international treaties.
in order to encourage its Member States to co- The Convention was ratified by the European
operate in conserving and safeguarding cultural Union (former European Community) on 18 De-
heritage of European significance, including cin-
ema. With regard to the latter, the Recommen- 270
Recommendation of the European Parliament and of the
dation to Member States on film heritage270 Council of 16 November 2005 on film heritage and the com-
petitiveness of related industrial activities, OJ L 323, p. 57.
271
Commission staff working document of 2 July 2010 on the
challenges for European film heritage from the analogue and
the digital era (Second implementation report of the Film Heri-
268
Cf. Council Decision 508/2000/EC, Culture 2000, [2000] OJ tage Recommendation), SEC 2010 (853), available at: http://
L 63/1. ec.europa.eu/avpolicy/docs/reg/cinema/report_2/2010_853.pdf
269
Cf. S. Schmahl, Comments on Art. 151 EC, in: Castendyk/ 272
UNESCO Convention on the Protection and Promotion of
Dommering/Scheuer, European Media Law, Alphen a/d Rijn the Diversity of Cultural Expressions of 20 October 2005, available
2008, Art. 151 EC, p. 259. at: http://unesdoc.unesco.org/images/0014/001429/142919e.pdf
European Media Law and Policy Framework 57

cember 2006. All examined countries are part services. An exception is Art. 118 TFEU that
of the Convention, except for Kosovo. allows the EU legislator
The binding character of the UNESCO “to establish measures for the creation of
Convention for the EU (as well as for the European intellectual property rights to
EU-Member States) is, firstly, of relevance for provide uniform protection of intellectual
external trade relations with other Members property rights throughout the Union and
that have ratified the Convention. This ap- for the setting up of centralised Union-
plies especially for external actions of the EU wide authorisation, co-ordination and su-
under Arts. 205-207 TFEU. With a view to pervision arrangements.”
the so-called Doha-round the EU has – in the The competence for harmonisation mea-
light of the UNESCO Convention – pressed sures areas named in the former is mostly based
its point on “non-liberalising” the audiovisu- on Arts. 114 and 115 TFEU. These provisions
al sector. Secondly, the Convention becomes allow the adoption of “measures for the ap-
also a “binding force” for the EU for mea- proximation of the provisions laid down by law,
sures to be taken on an EU level (respectively regulation or administrative action in Member
for its Members on a national level). The States which have as their object the establish-
(binding) measures stipulated in the Conven- ment and functioning of the internal market”.
tion (e.g. Art. 7, which includes measures to With regard to the freedom to provide ser-
promote cultural expressions) deepen on the vices (and the freedom of establishment) there
one hand the understanding of cultural di- exists a lex specialis for the harmonisation on the
versity. The explicitly named measures in the basis of a directive, namely Art. 53(1) TFEU (read
Convention concretise on the other hand together with Art. 62 TFEU): the AVMSD, which
the provision of Art. 167(4) TFEU, which says will be dealt with at a later stage (see infra at b)),
that “the Union shall take cultural aspects is the prominent example in the field of “Audio-
into account in its action under other provi- visual Media Law”. Related areas find their basis
sions of the Treaties, in particular in order to in Art. 114 (and Art. 115) TFEU instead.
respect and to promote the diversity of its
cultures”. This kind of a more “abstract prin- (2) eCommunications
ciple” is shaped in concreto by the UNESCO As far as the transmission of (audiovisual) me-
Convention as all named State measures of dia is concerned, electronic communications
the Convention are in principle legitimised regulation (in an auxiliary as well as an en-
and could not, in general, be tackled by the abling function) comes into play.274 The allo-
Commission.273
274
See Directive 2002/21/EC of the European Parliament and of
ee) EU competencies to harmonise (the) dif- the Council of 7 March 2002 on a common regulatory frame-
work for electronic communications networks and services
ferent sectors of “media law” (Framework Directive), as amended by Directive 2009/140/EC of
25 November 2009, OJ L 108, p. 33; Directive 2002/19/EC of
the European Parliament and of the Council of 7 March 2002
(1) General remarks on access to, and interconnection of, electronic communications
networks and associated facilities (Access Directive), as amended
The Treaty on the Functioning of the EU does by Directive 2009/140/EC of 25 November 2009, OJ L 337, p.
not contain an explicit competence to regu- 37; Directive 2002/20/EC of the European Parliament and of the
Council of 7 March 2002 on the authorisation of electronic com-
late press, broadcasting and/or other media munications networks and services (Authorisation Directive), as
amended by Directive 2009/140/EC of 25 November 2009, OJ
L 337, p. 37; Directive 2002/22/EC of the European Parliament
and of the Council of 7 March 2002 on universal service and us-
Cf. V. Wiedemann, Ein Kyoto-Protokoll für die Kultur – Die
273
ers’ rights relating to electronic communications networks and
UNESCO-Konvention zur kulturellen Vielfalt, in ARD Jahrbuch services (Universal Service Directive), as amended by Directive
2007, p. 23 (p. 26). 2009/136/EC of 25 November 2009, OJ L 337, p. 12.
58 The Media in South-East Europe

cation and assignment of radio spectrum to have expanded the process of harmonising the
electronic media services (particularly radio information society policy up to now.
and TV) is primarily to be determined by the
needs of these services, provided that the lat- (3) Consumer and data protection
ter contribute to promoting media pluralism – Media law is also linked with the issue of
one of the goals which regulatory authorities consumer protection. Consumer protection
in the electronic communications sector have laws are in principle designed to ensure fair
to take into account in their regulatory activi- competition and the free flow of truthful in-
ties (see Recital 5, last sentence; and Art. 8(1) formation in the marketplace. With regard
of Directive 2002/21/EC, as amended). On the to media law, especially the AVMSD wants
other hand, also the discussion about wheth- to ensure transparent information by giving
er regulatory convergence should follow tech- a concept of “audiovisual commercial com-
nological and market convergence275 leads to munication” in Art. 1(h) AVMSD, designed to
the question as to how both sectors are regu- cover all types of advertising.281 Besides this, a
lated today and which are the differences be- number of other directives target the issue of
tween the two approaches applied.276 consumer protection.282
Electronic communication is part of the Data protection is another important sector
so called “Information Society/New Media” in the field of media law. The protection of per-
policy, which has set the tone for a knowledge sonal data has been an area of considerable leg-
economy based on information technology in islative activity both at the European and at the
a liberalised market. The Transparency Direc- Member State level in the years before and after
tive on information society services277 was the the adoption of the European Data Protection
first Directive in this field, aiming to extend the Directive 95/46/EC.283 The Directive is aimed at
notification procedures for technical standards the protection of the fundamental rights and
to information society services. The Condition- freedoms of natural persons, and in particular
al Access Directive278, the e-Commerce Direc- their right to privacy with respect to the process-
tive279 and the Electronic Money Directive280 ing of personal data, as well as the free flow of
personal data between the Member States (Art.
275
There are proposals to merge regulatory bodies of these sectors
into one, as has already been done in the UK (Ofcom) and a few
other Member States (e.g. Italy, Finland). However, it is yet to be 281
Cf. R. Chavannes/O. Castendyk, Comments on Art. 1(h)
discussed on which criteria a decision on this issue shall be based. AVMSD, in: Castendyk/Dommering/Scheuer, European Media
276
See also S. Schweda, “The Telecoms Review: New Impetus for Law, Alphen a/d Rijn 2008, Art. 1 AVMSD, pp. 837 ff.
Audiovisual Media?”, IRIS plus 2009-10, pp. 7 ff., which analy- 282
With regard to Arts. 114 and 115 TFEU, the following Direc-
ses the impact of the revision of the regulatory framework for tives are to be mentioned: Directive 2009/22/EC of the European
electronic communications networks and services on television Parliament and of the Council of 23 April 2009 on injunctions for
broadcasting and other audiovisual media. the protection of consumers' interests (codified version), [2009]
277
Directive 98/48/EC of the European Parliament and of the OJ L 110, p. 30; Regulation (EC) No. 1924/2006 of the European
Council of 20 July 1998 amending Directive 98/34/EC, laying Parliament and of the Council of 20 December 2006 on nutrition
down a procedure for the provision of information in the field and health claims made on foods, as last amended by Commis-
of technical standards and regulations, [1998] OJ L 217, p. 18 sion Regulation (EU) No. 116/2010 of 9 February 2010, [2010] OJ
(as amended). L 37, p. 16; Directive 2006/114/EC of the European Parliament
278
Directive 98/84/EC of the European Parliament and of the Coun- and of the Council of 12 December 2006 concerning misleading
cil of 20 November 1998 on the legal protection of services based and comparative advertising (codified version), [2006] OJ L 149, p.
on, or consisting of, conditional access, [1998] OJ L 320, p. 54. 22; Directive 2005/29/EC of the European Parliament and of the
279
Directive 2000/31/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer
Council of 8 June 2000 on certain legal aspects of information practices, [2005] OJ L 149, p. 22; Directive 97/7/EC of the Eu-
society services, in particular electronic commerce, in the Internal ropean Parliament and of the Council of 20 May 1997 on the
Market (‘Directive on electronic commerce’), [2000] OJ L 178, p. 1. Protection of Consumers in Respect of Distance Contracts, [1997]
280
Directive 2009/110/EC of the European Parliament and of the OJ L 144, p. 19.
Council of 16 September 2009 on the taking up, pursuit and pru- 283
Directive 95/46/EC of the European Parliament and of the
dential supervision of the business of electronic money institutions Council of 24 October 1995 on the protection of individuals with
amending Directives 2005/60/EC and 2006/48/EC and repealing regard to the processing of personal data and on the free move-
Directive 2000/46/EC, [2009] OJ L 267, p. 7. ment of such data, [1995] OJ L 281, p. 31.
European Media Law and Policy Framework 59

1). The Directive especially includes an exemp- al property law based on Art. 114 TFEU (some-
tion in Art. 9 for the processing of personal data times together with Arts. 53, 62 TFEU).286 One
within the objective(s) of freedom of expression. that applies particularly to broadcasting (TV and
The provision states that radio) is the Cable and Satellite Directive from
“Member States shall provide for exemp- the early 1990s.287 Its main goal was to facilitate
tions or derogations [...] for the processing the clearance of rights for satellite broadcast-
of personal data carried out solely for jour- ing and cable retransmission.288 The (Copyright)
nalistic purposes or the purpose of artistic Directive 2001/29/EC289 (also known as the In-
or literary expression only if they are neces- formation Society Directive or the InfoSoc Di-
sary to reconcile the right to privacy with the rective) is a directive enacted to implement the
rules governing freedom of expression.” WIPO Copyright Treaty290, in order to address
As Rec. 17 (read together with Rec. 37) of the rights of reproduction, communication to
the Directive 95/46/EC states, in particular the the public, distribution, and legal protection of
processing of sound and image data in the anti-copying and rights management systems.
audiovisual field is affected by Art. 9 of the It ensures that films, music and other copyright
Directive to safeguard the fundamental rights protected material enjoy adequate protection in
of individuals, while taking into account the the single market. However, copyright and me-
freedom of information and notably the right dia law went along different historical paths.291
to receive and impart information, as guaran-
teed in particular in Art. 10 ECHR.
286
Directive 2009/24/EC of the European Parliament and of the
The provisions of Directive 2002/58/EC as Council of 23 April 2009 on the legal protection of computer
amended284 specify and complement Direc- programs (codified version), [2009] OJ L 111, p. 16; Directive
2006/116/EC of the European Parliament and of the Council of
tive 95/46/EC in the area of data protection 12 December 2006 on the term of protection of copyright and
certain related rights (codified version), [2006] OJ 2006 L 372, p.
by (additionally) covering legal persons; and 12; Directive 2006/115/EC of the European Parliament and of the
Directive 2006/24/EC285 addresses the obli- Council of 12 December 2006 on rental right and lending right
and on certain rights related to copyright in the field of intellectual
gations of the providers of publicly available property (codified version), [2006] L 376, p. 28; Directive 2004/48/
EC of the European Parliament and of the Council of 29 April
electronic communications services or of pub- 2004 on the enforcement of intellectual property rights, [2004]
lic communications networks with respect to OJ L 195, p. 16; Directive 96/9/EC of the European Parliament
and of the Council of 11 March 1996 on the legal protection of
the retention of certain data. databases, [1996] L 77, p. 20.
287
Council Directive 93/83/EEC of 27 September 1993 on the co-
ordination of certain rules concerning copyright and rights related
(4) Intellectual property rights to copyright applicable to satellite broadcasting and cable retrans-
mission, [1993] OJ L 248, p. 15.
The European Union has adopted a number of 288
P. B. Hugenholtz, “SatCab Revisited: The Past, Present and Future
of the Satellite and Cable Directive”, IRIS plus 2009-8, pp. 7 ff.
horizontal directives on copyright and intellectu- 289
Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain as-
pects of copyright and related rights in the information society,
[2001] L 167, p. 10.
284
Directive 2002/58/EC of the European Parliament and of the
290
World Intellectual Property Organisation Copyright Treaty (WCT),
Council of 12 July 2002 concerning the processing of personal adopted in Geneva on 20 December 1996; see N. Helberger, Copy-
data and the protection of privacy in the electronic communica- right Treaty Enters into Force, IRIS 2002-1:2/1.
tions sector (Directive on privacy and electronic communications),
291
The Commission stated in its review report of 2002 that the
amended by Directive 2006/24/EC of the European Parliament goals of the Cable and Satellite Directive have only been par-
and of the Council of 15 March 2006 on the retention of data tially achieved and that the envisaged future of a pan-European
generated or processed in connection with the provision of pub- satellite broadcasting market has not materialised. Contractual
licly available electronic communications services or of public com- licensing practices reinforced by the application of signal encryp-
munications networks, [2006] OJ L 105, p. 54 and by Directive tion techniques have allowed broadcasters and right holders to
2009/136/EC of 25 November 2009, OJ L 337, p. 12. continue segmenting markets along national and regional and
285
Directive 2006/24/EC of the European Parliament and of the linguistic borderlines. Report from the European Commission of
Council of 15 March 2006 on the retention of data generated or 26 July 2002 on the Application of Council Directive 93/83/EEC
processed in connection with the provision of publicly available on the Co-ordination of Certain Rules Concerning Copyright and
electronic communications services or of public communications Rights Related to Copyright Applicable to Satellite Broadcasting
networks, ibid. and Cable Retransmission, COM(2002) 430 final.
60 The Media in South-East Europe

The increasing complexity of electronic commu- applicable to linear audiovisual media services
nications patterns (now) call for an integrated in its Arts. 16 and 17 AVMSD, including cin-
approach of media law and copyright in the ema and TV films.
future. The authorities in each Member State
must ensure that all (providers of) audiovisual
b) Secondary European Union law: particu- media services originating there comply with
larly the Audiovisual Media Services Directive their own national rules, particularly those
giving effect to the Directive (Art. 2 AVMSD
aa) General remarks on the content/scope – “country-of-origin principle”). This means
and the guiding principles content has to be checked once, rather than
The Audiovisual Media Services Directive292 in multiple countries. If any Member State
(AVMSD) covers all audiovisual media services adopts national rules that are stricter than the
(Art. 1(1) lit. a) AVMSD): traditional television Directive (as they are principally free to do),
(linear services) and video-on-demand (non- these can, in principle, only be applied to pro-
linear services).293 viders in that jurisdiction.
All audiovisual media services have to re- Member States may not restrict retrans-
spect the basic tier of obligations in the fol- missions on their territory of audiovisual me-
lowing areas: identification of media service dia services from other Member States for rea-
providers (Art. 5 AVMSD), prohibition of in- sons which fall within the fields co-ordinated
citement to hatred (Art. 6 AVMSD), accessibil- by this Directive (Art. 3(1) AVMSD). Excep-
ity for people with disabilities (Art. 7 AVMSD), tions to this principle, such as the transmis-
transmission of cinematographic works (Art. sion of unsuitable content, are listed in Art.
8 AVMSD), qualitative requirements for com- 3(2)-(6) AVMSD. Any restrictions must first be
mercial communications (Art. 9 AVMSD), approved by the Commission and are only al-
sponsoring (Art. 10 AVMSD) and product lowed under exceptional circumstances.
placement (Art. 11 AVMSD). Furthermore, Besides, Member States are free to pass
the Directive holds special rules only for tele- more detailed or stricter rules in the fields co-
vision broadcasting, such as television adver- ordinated by the Directive to media service
tising and teleshopping (Arts. 19-26 AVMSD), providers under their jurisdiction as long as
protection of minors (Art. 27 AVMSD) or the such rules are in compliance with the gen-
right of reply (Art. 28 AVMSD); and for on- eral principles of European Union law (Art. 4
demand services in Art. 12 AVMSD (protec- AVMSD).294
tion of minors in on-demand services) and in Finally, it should be noted that Art. 30
Art. 13 AVMSD for the production and distri- AVMSD (read together with Rec. 95) aims
bution of European works. The Directive also at securing the correct application of the Di-
provides a general framework for the latter rective as the independent regulators in the
Member States must co-operate closely both

292
Directive 2010/13/EU of the European Parliament and of the
Council of 10 March 2010 on the co-ordination of certain pro-
visions laid down by law, regulation or administrative action in 294
According to the Commission, an example in this regard is the
Member States concerning the provision of audiovisual media promotion of a policy in favour of a specific language: “Member
services (Audiovisual Media Services Directive) (codified version), States are able to lay down more detailed or stricter rules on the
[2010] OJ L 95, p. 1. basis of language criteria, as long as these rules are in confor-
293
See the various contributions in EAO (ed.), IRIS Special 2009: mity with European Union law and in particular are not applicable
“Ready, Set...Go? – The Audiovisual Media Service Directive”, on to the retransmission of broadcasts originating in other Member
information on how national solutions take into account the vari- States” (cf. http://ec.europa.eu/avpolicy/reg/tvwf/provisions/strict-
ous interests covered by the AVMSD. er/index_en.htm).
European Media Law and Policy Framework 61

among themselves and with the Commission. relevant legislation in the respective country
This applies especially to issues of jurisdic- for the regulation of the content of, and ad-
tion. Although the ECJ has not yet had the vertising in, TV and radio broadcasts with a
opportunity to hold on issues relating to (the view to improving the mutual understanding,
independence of) regulatory bodies responsi- in the spirit of Rec. 95 of the Preamble and of
ble for applying legal provisions in the audio- Art. 30 AVMSD.297
visual sector, one should take into consider-
ation, for present purposes, the judgment of bb) General requirements regarding the im-
the Court in the Centro Europa 7 case.295 The plementation of the AVMSD
ECJ stated that Art. 56 TFEU (and Art. 9(1) of Art. 36 AVMSD stipulates that the Directive is
the Framework Directive, Art. 5(1), the sec- addressed to the Member States. This entails
ond subparagraph of Art. 5(2) and Art. 7(3) the obligations stemming from Art. 288(3)
of the Authorisation Directive and Art. 4 of TFEU, saying that a Directive is binding “as
the Competition Directive) must be interpret- to the result to be achieved”, “but shall
ed as precluding, in television broadcasting leave to the national authorities the choice
matters, national legislation the application of form and methods”. However, the scope
of which makes it impossible for an opera- left to the Member States may not be used
tor holding rights to broadcast to pursue this to enact national legislation circumventing
service – in the absence of broadcasting ra- the spirit of the Directive or watering down
dio frequencies granted to him on the basis the arrangements made in it in what regards
of objective, transparent, non-discriminatory the desired outcome: as set out in Art. 4(3)
and proportionate criteria.296 Given that the TEU, Member States “shall take any appro-
ECJ based its decision inter alia on the free- priate measure, general or particular, to en-
dom to provide services, the effectuating of sure fulfilment of the obligations arising out
which the AVMSD also aims at, this judgment of the Treaties or resulting from the acts of
may serve also to more closely define the ef- the institutions of the Union”. Both aspects
fectiveness that the work of “independent have been highlighted also by Recital 94 of
regulatory bodies”, in the sense of Art. 30 the AVMSD.
AVMSD, has to provide for. The Directive itself requires Member
On 10 December 2009, the Romanian States, among others, to ensure compliance
National Audiovisual Council signed a Mem- by media service providers with the relevant
orandum of Understanding on mutual co- provisions: Art. 2 AVMSD, establishing the
operation and exchange of information to- home-state-control principle, in its para. 1,
gether with the Czech Council for Radio and states that a Member State has to
TV Broadcasting, the Hungarian National Ra- “ensure that all audiovisual media services
dio and TV Commission, the Polish National transmitted by media service providers un-
Broadcasting Council, the Serbian Republic der its jurisdiction comply with the rules of
Broadcasting Agency and the Slovak Council the system of law applicable to audiovi-
for Broadcasting and Retransmission. Each sual media services intended for the public
signatory shall prepare a brief summary of the in that Member State”;

295
ECJ, Case C-380/05, Centro Europa 7 Srl ./. Ministero delle Co-
municazioni e Autorità per le garanzie nelle comunicazioni, [2008] 297
Cf. J. Fučík, Czech Republic – MoU between Regulatory Bodies,
ECR I-349. IRIS 2010-2:1/8, available at: http://merlin.obs.coe.int/iris/2010/2/
296
Ibid., para. 120. article8.en.html
62 The Media in South-East Europe

and, additionally, Art. 4(6) AVMSD sets a the media service providers’ actual pursuit of
focus on the obligation of the Member States their activities as falling under the scope of
to ensure, “within the framework of their leg- the Directive. The Member State will enjoy
islation” and by appropriate means, that me- some leeway in respect of how this is secured
dia service providers effectively comply with (“appropriate means”). In particular, as long
the provisions of the Directive. as such systems prove effective, a random-
The AVMSD deliberately does not pre- based monitoring of television broadcasts or
scribe by which means it must be secured that of the provision of on-demand audiovisual
there is compliance. media services may be sufficient. In general,
This first obligation that Member States the same would apply to a monitoring system
(like Bulgaria and Romania) had to fulfil re- based on complaints by the viewers and/or
lates to the “transposition” of the provisions competitors, for instance.
of the Directive into their national legal order. All Member State authorities are obliged
Member States were obliged to transpose to ensure that a Directive is properly imple-
the provisions of the Directive by 19 Decem- mented in national law, entailing the legisla-
ber 2009. Transposition may not require the tor, the administration and the jurisdictional
enacting of legislation that is specific in the branch. However, particularly in respect of
sense that it covers per se the provisions of broadcasting, there is a long-standing tradi-
the Directive. Also, transposition may not in tion in almost all Member States to have spe-
all circumstances, or as regards every single cialised media authorities in place which are
rule provided for by the Directive, necessi- responsible, as the case may be, for licensing
tate the adoption of new legislation or the and monitoring the providers of (television)
amending of the existing one, if and to the broadcasting or other (audiovisual) media ser-
extent that the aims pursued by the Directive vices. In this respect, the Commission in the
can be achieved by existing national rules. past has put some emphasis on a sufficient
Nevertheless, the rights and duties that stem level of staffing and funding of regulatory au-
from a provision of the Directive must be thorities in the media field.298
implemented in a clear manner so that every As regards sanctioning, by referring to
person concerned can take due note of his/ “appropriate means”, the actual text of the
her entitlements and obligations, respectively. Directive foremost reflects on the discussion
Co-regulation, as referred to in Art. 4(7) held among the EC institutions when the Di-
and Rec. 44 AVMSD, may be used as a means rective was revised for the first time (by Direc-
to transpose the provisions of the Directive as tive 97/36/EC), on the necessity to prescribe in
well. In this case, for instance, the Member more detail what kind of measures should be
State’s legislation intended for serving trans- used in order to avoid or, where necessary, to
position purposes may lay down general prin- prevent future infringements of the provisions
ciples, on the one hand, and provide for pro-
cedures and instruments to incorporate self-
298
“Furthermore, the Commission notes that Member States have
regulatory regimes into the legal framework, devoted adequate resources to apply national legislation imple-
menting the Directive effectively. Independent regulatory authori-
on the other. ties have been established and budgets for technical resources as
In order to ensure effective compliance, well as staff have been considerably increased where they were
insufficient.” Fourth Report from the Commission to the Coun-
Member States are, secondly, under an ob- cil, the European Parliament, the European Economic and Social
Committee and the Committee of the Regions on the applica-
ligation to provide for correct implementa- tion of Directive 89/552/EEC “Television without Frontiers”, COM
tion or application. This entails monitoring of (2002) 778 final, point 2.
European Media Law and Policy Framework 63

of the Directive, as implemented in national remains responsible for the achievement of the
law.299 Where an EU directive does not specifi- results of the Directive. Therefore, independent
cally provide any penalty for an infringement regulatory bodies must be vested with instru-
or refers for that purpose to national laws, ments to oversee the actual performance of
regulations and administrative provisions, the the self-regulatory component of the co-regu-
Member States have to take all measures nec- latory system, and be able to intervene where
essary to guarantee the application and ef- necessary. This is to be derived particularly from
fectiveness of EU law. For that purpose, while Art. 4(7) AVMSD: the regime has to provide for
the choice of penalties remains within their effective enforcement. One could argue that
discretion, they must ensure in particular that this requirement has to be regarded as being
infringements of European Union law are pe- redundant, as the obligation to secure effec-
nalised under conditions, both procedural and tive compliance as such is already stipulated in
substantive, which are analogous to those ap- Art. 4(6) AVMSD, and can also be derived from
plicable to infringements of national law of primary EU law. Still, Art. 4(7) AVMSD could
a similar nature and importance and which, have an effect beyond Art. 4(6) AVMSD insofar
in any event, make the penalty effective, pro- as it requires the regime itself to provide for ef-
portionate and deterrent.300 With regard to fective enforcement. This leads to the question
labour law for instance, the Court has held of whether modifications of the already exist-
that where a Member State chooses to penal- ing co-regulatory regimes in some Member
ise the breach of the prohibition on discrimi- States would be required. As the study on co-
nation by the award of compensation, that regulation measures in the media sector303 has
compensation must in any event be adequate shown, co-regulatory regimes ‘often’ provide
in relation to the damage sustained and have for a sanctioning system304, in other words, not
a deterrent effect.301 Thus, the Member States all of the investigated regimes do. Other pa-
are in principle free in respect of the choice of rameters for effectiveness will include in partic-
the particular sanction.302 In this context they ular: incentives for participation; transparency;
can choose penal, administrative and other safeguarding of process objectives; openness
sanctions according to criminal and civil law, to all relevant stakeholders; broad acceptance
or a combination of them. by stakeholders and society (necessitating
Where recourse to co-regulation is made, it complaint mechanisms and awareness cam-
follows from the AVMSD, but also from prima- paigns); effective means of enforcement of the
ry European Union law, that the Member State co-regulatory rules; as well as a regular evalu-
ation of the system together with ‘patience’.
Also a ‘legal back-stop’ is necessary; this is re-
299
Cf. A. Scheuer/T. Ader, Comments on Art. 3 TWFD, in: Casten- ferred to by Rec. 44 as a Member State’s possi-
dyk/Dommering/Scheuer, European Media Law, Alphen a/d Rijn bility to intervene, should the objectives of the
2008, paras 6 et seq., 54 et seq.
300
ECJ, Case 68/88, Commission v. Greece, [1989] ECR 2965, co-regulatory regime not be met.305
para. 23 et seq.; Case C-7/90, Paul Vandevenne, [1991] ECR
I-4371, para. 11; Case C-382/92, Commission v. United King-
dom, [1994] ECR I-2435, para. 55; Case C-383/92, Commission
v. United Kingdom, [1994] ECR I-2479, para. 40; Commission,
COM (2001) 330 final, pp. 1 et seq.; Hans-Bredow-Institut/Institut
für Europäisches Medienrecht, Study on Co-Regulation Measures
303
Hans-Bredow-Institut/Institut für Europäisches Medienrecht
in the Media Sector, 2006, pp. 160 et seq.; available at: http:// (EMR), op.cit.
ec.europa.eu/avpolicy/docs/library/studies/coregul/coregul-final-
304
T. Kleist/A. Scheuer, “Neue Regelungen für audiovisuelle Medi-
report_en.pdf endienste – Vorschriften zu Werbung und Jugendschutz und ihre
301
ECJ, Case 14/83, von Colson and Kamann, [1984] ECR, 1891, Anwendung in den Mitgliedstaaten”, [2006] MMR 206.
para. 23 et seq.
305
A. Scheuer/T. Ader, Comments on Art. 3 AVMSD, in: Casten-
302
Ibid., para. 14. dyk/Dommering/Scheuer, European Media Law, op. cit., p. 863.
64 The Media in South-East Europe

2.3 Transposition of the EU acquis, particu- a) Albania

larly the AVMS Directive Albania applied for EU membership in April
It is well known that, before joining the EU, 2009. Council Decision 2008/210/EC307 re-
countries have to bring their national laws quires Albania to “[a]lign Albanian legislation
into line with the EU acquis, including – in the with the European Convention on Transfron-
audiovisual field – the AVMSD. When they tier Television and the Television without Fron-
do so, they become also eligible for funding tiers Directive” and to “strengthen the ad-
under the MEDIA 2007 programme (cover- ministrative capacity of the National Council
ing the period 2007-2013). The candidate on Radio and Television and adopt the strat-
countries Croatia, Macedonia and Monte- egy for development of the radio and televi-
negro (with concrete negotiations regarding sion sector and an updated national analogue
the latter two countries still to start) as well and digital frequency plan for radio and tele-
as the potential candidate countries Albania, vision”. The Council also calls on Albania to
Bosnia and Herzegovina, Kosovo and Ser- “ensure that electronic communications leg-
bia have already made substantial efforts to islation is in line with the acquis and is en-
meet European standards on media, and the forced, and take measures to achieve a com-
process of reform is ongoing. Information on petitive market for electronic communications
their progress towards meeting the member- networks and services”.
ship requirements in the audiovisual field is In the Commission’s progress report 2009
provided in the EU’s annual progress reports on Albania, it notices little progress in the
or ‘opinions’ for the candidate and poten- area of electronic communications and infor-
tial candidate countries.306 The main points mation technologies. The Regulatory Author-
of discussion are represented in the follow- ity for Postal and Electronic Communications
ing. Besides the studies already undertaken, (AKEP) harmonised all existing licences with
the reports provide for an additional insight the authorisation scheme of the 2008 Law
into the perception of the status quo of media on Electronic Communications in December
freedom and the related legal framework in 2008. However, regulations to be implement-
the countries researched in the present study. ed for the law on electronic communications
For those countries that are already Member are still pending adoption. Internal conflicts
States of the EU, i.e. Bulgaria and Romania, within the AKEPs Governing Council have
some recent information is given instead. In hindered its decision-making process, bring-
the case of Moldova, which cooperates with ing regulatory development to a standstill.
the EU in the context of the European Neigh- The Commission attested Albania “prog-
bourhood Policy (ENP), the available informa- ress in the area of information society servic-
tion has proven sufficiently interesting to also es”. Amendments to the Criminal Code and
form a starting point in the present context. the Criminal Procedure Code were adopted,
following the requirements of the Convention
on Cybercrime, as well as the Law on Elec-
tronic Commerce and the Electronic Signature
306
See Communication from the Commission to the Euro-
pean Parliament and the Council of 14 October 2009, En-
largement Strategy and Main Challenges 2009-2010, COM
(2009) 533, available at: http://ec.europa.eu/enlargement/pdf/
key_documents/2009/strategy_paper_2009_en.pdf; and the
single progress reports of the countries, available at: http://
307
Council Decision of 18 February 2008 on the principles, pri-
ec.europa.eu/enlargement/press_corner/key-documents/re- orities and conditions contained in the European Partnership with
ports_oct_2009_en.htm. Albania and repealing Decision 2006/54/EC, [2008] OJ L 80, p. 1.
European Media Law and Policy Framework 65

Law. However, there has been no progress as tion society and media. Although the UNES-
regards legislation on conditional access. CO Convention on the Protection and Promo-
The audiovisual policy progress was, in tion of the Diversity of Cultural Expressions311
the view of the Commission, “very limited”. and rules on conditions for the provision and
The National Council for Radio and Television distribution of audiovisual media services and
(NCRT) finalised the draft strategy for the swi- radio and TV programmes has been adopted,
tchover from analogue to digital broadcast- the Commission stated that
ing as well as the draft Broadcasting Law. The “(...) a deterioration of media freedoms
implementation of the Action Plan on media in Bosnia and Herzegovina has been ob-
reform (already) agreed with the European served during the reporting period. Since
Commission and the Council of Europe needs January, the Free Media Helpline of the
to be stepped up. Measures are also required Bosnia and Herzegovina’s Union of Jour-
to ensure sustainable funding for the public nalists has registered 16 verbal assaults
service broadcaster as the collection of licence and direct physical attacks, death threats
fees remains low.308 and other violations of journalists’ rights.
The Commission detects in its Analytical This represents an increase of 20% com-
report 2010 that the main legislative acts in pared to 2008. The country is ranked in
the field of audiovisual policies of Albania 115th place on the list of Reporters with-
(e.g. the Law on public and private radio and out Borders evaluating press freedom in
television in the Republic of Albania, the Law 173 countries. There has been little coop-
on digital broadcasting, etc.) are only partly eration between local media organisations
aligned with European standards on media responsible for media freedoms. In April
regulation - particularly, they are not aligned the RTRS — the Republika Srpska public
with the AVMSD and fail to ensure some of broadcaster — and the Republika Srpska
the main standards, such as guaranteeing daily newspaper Glas Srpski walked out of
the independence of the National Council the association Journalists of Bosnia and
for Radio and Television (the broadcasting Herzegovina, announcing the establish-
regulatory authority) and of the public service ment of a separate, Republika Srpska only,
broadcaster. Besides, there is a need to en- association of journalists.”312
sure freedom of expression and a better me- Furthermore, efforts are necessary to im-
dia climate by decriminalising defamation and plement the legal framework in the area of
libel.309 Finally, in its opinion the Commission public broadcasting, to carry out the reform
points out that Albania needs to “strengthen of this sector and to ensure the functional in-
media freedom and its independence”, and dependence of the Communications Regula-
“address the prevalence of political influenc- tory Authority.
es” in the media.310 The Commission notices in its progress
report of 2010 that the public broadcasting
b) Bosnia and Herzegovina system “Board of Governors” failed to adopt
The Commission attested Bosnia and Herze- the statutes of the PBS corporation due to
govina little progress in the area of informa-

308
SEC(2009) 1337, Albania 2009 Progress Report, pp. 40 et seq.
309
SEC(2010) 1335, Albania, Analytical report, p. 67. http://unesdoc.unesco.org/images/0014/001429/142919e.pdf
311

310
Commission Opinion on Albania’s application for member-
312
SEC(2009) 1338, Bosnia and Herzegovina 2009 Progress Re-
ship of the European Union, COM(2010) 680, p. 12. port, pp. 52 et seq.
66 The Media in South-East Europe

disagreements over ownership of equipment review of audiovisual media legislation

and revenue-sharing. Since its statutes have on the basis of public consultation, en-
not been adopted, the PBS corporation could sure regulatory independence and guard
not be registered, which delayed the reform against undue political interference.”
of the public broadcasting sector. The Entities’ The Commission stated that
laws on public broadcasting services are not “(...) freedom of expression, including
aligned with the State-level law.313 freedom and pluralism of the media, is
provided for in Croatian law and is gen-
c) Bulgaria erally respected. However, threats against
In Bulgaria, the government recently under- journalists working on cases of corruption
took some urgent measures in order to im- and organised crime have been increas-
plement the AVMSD in Bulgarian law. The ing. Editors and journalists continue to
Council of Ministers had approached all key report undue political pressure.”316
stakeholders (e.g. the Council for Electronic The Commission attested Croatia in gen-
Media, the Bulgarian National Television, the eral “good progress (...) in the field of infor-
Bulgarian National Radio, the Television Pro- mation society and media”:
ducers Association, the Bulgarian Radio and “A good level of alignment has been
Television Operators Association, etc.) to offer reached. Efforts need to continue to
their opinions on the draft legislative acts that strengthen the capacity of the national
needed to be prepared for the transposition regulators to implement correctly the le-
of the Directive.314 gal framework, as well as to sustain liber-
alisation of the electronic communications
d) Croatia
market.”317
Croatia joined the MEDIA 2007 programme
The “good progress” in the field of elec-
in April 2008 following the ratification of the
tronic communications and information tech-
UNESCO Convention and the alignment of
nologies lies especially in the “necessary im-
Croatian legislation with the acquis. In the
plementing legislation” and adoption of the
light of these achievements the Council of
Electronic Communications Act. Liberalisation
Ministers (provisionally) closed Chapter 10 on
of the sector has continued to progress sig-
information society and media on 18 Decem-
nificantly, in particular in the broadband mar-
ber 2008. Council Decision 2008/119/EC315
ket. However, the Commission sees a risk to
has made it a priority to complete
the current EU strategy promoting Europe’s
“(...) the alignment with the acquis con-
digital economy by a governmental initiative
cerning electronic communications, com-
in the form of a “crisis tax” on mobile ser-
merce, signatures and media, information
vices.318
security and the Television without Fron-
The Commission attested Croatia (only)
tiers Directive” [as well as] “the planned
“some progress” (...) in the area of informa-
tion society services and electronic commerce
as well as in the field of audiovisual policy:
313
SEC(2010) 1331, Bosnia and Herzegovina 2010 Progress
Report, p. 51.
314
Cf. R. Nikolova, Bulgaria – Progress on the Implementation
of the AVMS Directive, IRIS 2010-1:10, available at: http://mer-
lin.obs.coe.int/iris/2010/1/article10.en.html 316
See Communication from the Commission to the European Par-
315
Council Decision 2008/119/EC of 12 February 2008 on the liament and the Council of 14 October 2009, Enlargement Strategy
principles, priorities and conditions contained in the Accession and Main Challenges 2009-2010, COM (2009) 533, p. 36.
Partnership with Croatia and repealing Decision 2006/145/EC, 317
Ibid., p. 39.
[2008] OJ L 42, p. 51. 318
SEC(2009) 1333, Croatia 2009 Progress Report, p. 37f.
European Media Law and Policy Framework 67

In the area of information society services Agency has obtained spectrum-monitor-

and electronic commerce ing equipment, enabling it to identify ille-
“further amendments to the Electronic gal activity in northern Kosovo and in the
Commerce Act have been adopted, aimed areas bordering neighbouring countries.
at completing legal alignment in this field Mobile telephony market penetration is
and an e-Government Strategy for the pe- at 60%; internet penetration is 5.4%. A
riod 2009–2012 has been adopted”, third fixed telephony licence was issued in
and with regard to audiovisual policy January 2009 but has not yet become op-
“preparations for the introduction of digi- erational. Two mobile virtual network op-
tal television are under way. The Croatian erators have been licensed; one is already
Audiovisual Centre has been established active in the market. The implementation
and it has joined European Film Promo- of the sector policy adopted in 2007 is
tion. However, some interference in the suffering delays.”322
media landscape by mainly economic and Information society services need, accord-
partly political interest groups has contin- ing to the Commission, to be further devel-
ued. Also, anti-competitive State aid to the oped.
national broadcaster has continued.”319 With regard to the progress made in the
“Good progress” in the field of audio- field of audiovisual policy and media, the
visual policy was also diagnosed in the Commission stated:
2010 progress report by the Commission. “The laws that cover the media industry –
But interference in the media landscape the Law on the Independent Media Com-
by economic and political interest groups mission and the Law on the Public Broad-
persists in Croatia. Also anti-competitive caster – are up for amendment. Re-licens-
State aid to the national broadcaster has ing of broadcasters has begun: at the
continued.320 end of August [2009], a first batch of 12
long-term licences was approved for exist-
e) Kosovo ing broadcasters. The Independent Media
Council Decision 2008/213/EC321 makes it a Commission is now assessing applications
top priority to ensure for new frequencies. Cable operators in
“(...) the independence of the regula- the north are not licensed by the Commis-
tory bodies in Kosovo” and “stable and sion. The Commission’s independence, in
sustainable funding of the Public Service particular as regards its staff and resourc-
Broadcaster RTK (Radio and Television of es, needs to be guaranteed in the context
Kosovo), the Independent Media Com- of possible legislative amendments. The
mission and the media fund.” appointment of the Commission’s coun-
The 2009 report states some progress in cil member by the Assembly and the RTK
the area of electronic communications: board is yet to be completed.”323
“The Telecommunications Regulatory The Commission attested that, even
though the regulation for broadcasters re-
garding the protection of children and minors
319
Ibid., p. 38.
320
SEC(2010) 1326, Croatia 2010 Progress Report, p. 35.
321
Council Decision of 18 February 2008 on the principles, priorities
and conditions contained in the European Partnership with Serbia
including Kosovo as defined by United Nations Security Council 322
SEC(2009) 1340, Kosovo under UNSCR 1244/99 2009 Progress
Resolution 1244 of 10 June 1999 and repealing Decision 2006/56/ Report, p. 41.
EC, [2008] OJ L 80, p. 46. 323
Ibid., pp. 41 et seq.
68 The Media in South-East Europe

from harmful programme content entered sists. This will be resolved in the process of
into force, no mechanisms to implement and revising Kosovo’s criminal code.”326
enforce it have been provided for. Also no
progress on the switchover from analogue f) Macedonia
to digital broadcasting can be reported. The Council Decision 2008/212/EC327 identifies
Commission allocates problems in financing the following (short-term) priorities for Mace-
public broadcasting as the contract by which donia:
the licence fee was collected via energy bills “- Reinforce the independence and ad-
expired in November 2009. The Public Service ministrative capacity of the regulatory
Broadcasting Law envisages annual tenders authorities for electronic communications
to purchase audiovisual works from indepen- and media.
dent producers, which should account for - Ensure a stable and sustainable source of
20% of the programmes produced by RTK. funding for the public service broadcaster
This has not been fully implemented. Further and the Broadcasting Council.”
problems are the lack of an independent mi- On the 2009 developments, the Commis-
nority channel with Kosovo-wide coverage, sion attested Macedonia “good progress in
the full implementation of the Law on Access the area of electronic communications and in-
to Information (which hampers the work of formation technologies”. Specifically conces-
journalists) and the weak enforcement ca- sion contracts with operators with significant
pacity of the Press Council (a self-regulatory market power were terminated in accordance
body which depends on donations for its fi- with the Law on Electronic Communications,
nances).324 Parliament adopted the national strategy on
The 2010 report comes to the overall the next generation of broadband internet
conclusion that “limited progress has been and the Agency for Electronic Communica-
made in the area of information society and tions (AEC) made important developments in
media”. Regarding audiovisual policy and the its activities.328
media, the current draft, which addresses the The Commission attested Macedonia also
Independent Media Commission (IMC), fails “progress in the area of information society
to preserve the Council’s independence in services, where a good level of alignment has
line with European standards on media regu- already been achieved”.
lation. In addition, the independence of the With a view to the progress made on au-
public service broadcaster RTK and its finan- diovisual policy, the Commission stated that
cial sustainability are not fully ensured.325 Fur- “(...) the administrative capacity of the
thermore, there are inconsistencies between Broadcasting Council has improved, but
the “Law on Defamation and Insults” and the is still not adequate to monitor the mar-
“Criminal Code”: ket effectively. The system for collecting
“According to European standards defa- the broadcasting fee has not been estab-
mation should not be a criminal offence. lished yet. The sustainability and financial
Kosovo does not apply the penal provisions
on defamation, but since they remain on
the statute book, legal uncertainty per- 326
Ibid., p. 48.
327
Council Decision 2008/212/EC of 18 February 2008 on the prin-
ciples, priorities and conditions contained in the Accession Partner-
ship with the former Yugoslav Republic of Macedonia and repealing
324
Ibid., p. 42. Decision 2006/57/EC, [2008] OJ L 80, p. 32.
325
SEC(2010) 1329, Kosovo 2010 Progress Report, p. 46 et seq. 328
SEC(2009) 1335, Macedonia 2009 Progress Report, p. 41.
European Media Law and Policy Framework 69

independence of the public broadcaster restructuring of the public broadcaster) had,

is therefore not ensured. The legal provi- according to the Commission, raised concern
sions opening up the possibility of initiat- notably on the independence of journalists:
ing bankruptcy proceedings against the problems with registration for two local radi-
public service broadcaster are still in force. os, a statement by the chairman of Teleradio
The Broadcasting Council and the public Moldova about the reported imposition by
service broadcaster continue to be subject the Board of guarantors of the programme
to political interference, partly because “the hour of the government” and his sub-
of their dependence on finance from the sequent dismissal, and high fines imposed
State budget. This dependence also un- on local newspapers and opposition leaders
dermines the authority of the Broadcast- for slander.332 In a more general way, the EU’s
ing Council vis-à-vis broadcasters. Public Country Strategy Paper refers to concerns
expenditure on State advertising is a sig- raised by the joint CoE and OSCE election ob-
nificant source of revenue for some broad- servation mission in particular over the issue
casters, but is not sufficiently transparent of the freedom of media and administrative
and therefore has the potential to under- pressures on opposition candidates.333
mine editorial independence. The Broad- In its Action Plan the Commission calls for
casting Law, including the provisions relat- Moldova to approximate relevant audiovisual
ing to concentration of ownership of the legislation in full compliance with European
media, has not been fully implemented. standards (with a view to possible future par-
It is not yet aligned with the Audiovisual ticipation in the MEDIA programme if prereq-
Media Services Directive. (...).”329 uisites are fulfilled).334
With regard to audiovisual policy, in the More recently, in its report on the ENP imple-
2010 progress report the Commission stated mentation progress in 2009335, the Commis-
that the legislation on media ownership and sion Services’ staff document in its sector-
concentration is not fully enforced. Especial- specific part mainly expands on achievements
ly, sustainable funding of the public service in the area of regulating electronic commu-
broadcaster and the Broadcasting Council is nications. However, in relation to the report’s
not secured and the media legislation is not in part on the situation of political reform, more
line with the AVMSD.330 specifically within the chapter on human
rights and fundamental freedoms, important
g) Moldova remarks are being made:
The Commission stated in its country report of “As regards freedom of expression and
2004 in the context of the European Neigh- media pluralism, the situation worsened
bourhood Policy, that Moldova significantly in the first half of 2009
“has an active and independent media”.331 through, notably, severe restrictions of
However, recent legislation and drafts (the
2003 amendments to the Law on Access to
Information and a recent draft law on the
332
Ibid., p. 9.
333
Country Strategy Paper 2007-2013, p. 6, available at: http://
ec.europa.eu/world/enp/pdf/country/
enpi_csp_moldova_en.pdf
329
Ibid., p. 42. 334
EU/Moldova, Action Plan, para. 77, available at: http://ec.europa.
330
SEC(2010) 1332, Macedonia 2010 Progress Report, p. 41. eu/world/enp/pdf/action_plans/
331
Commission staff working paper of 12 May 2004, European moldova_enp_ap_final_en.pdf
Neighbourhood Policy, Country report – Moldova, SEC (2004) 567, 335
Dated 12 May 2010, available at: http://ec.europa.eu/world/enp/
p. 8. pdf/progress2010/sec10_523_en.pdf
70 The Media in South-East Europe

the right of access to information and communications and information technolo-

the use of administrative means such as gies”. While narrowband is still predominant
tax investigations, as well as restrictions for connecting to the internet, for instance
on freedom of media and free reporting in January 2009 the broadband penetration
in the context of the elections. New laws rate was 5.5% and alternative operators held
on state secret and on transparency in the around 20% of this important growth market.
public decision-making process entered With regard to information society servic-
into force in 2009, as did modifications to es, further developments have been made, for
the Criminal Code that only partly reflect- instance a new Ministry for the Information
ed Council of Europe’s recommendations Society was established on 3 January 2009
on the decriminalisation of slander and li- (which became the Ministry for Economic Pol-
bel. In the later part of the year a number icy and the Information Society), responsible
of measures were taken, aiming to reverse for information and communication technol-
the situation. In November 2009, the Au- ogy initiatives in all government bodies. The
diovisual Code was amended – without Conditional Access Directive has not yet been
consultation of the Council of Europe – to transposed and human resources at the Min-
simplify the appointment procedure for istry for Economic Policy and the Information
the members of the Audiovisual Coordi- Society are still weak.
nation Council and the Supervisory Coun- In the area of audiovisual policy and the
cil for Radio and Television. At the same media a Law on Public Service Broadcasting
time, in the last quarter of 2009, a private was adopted in December 2008, which abol-
radio station was experiencing severe dif- ished the steering committee of Radio Televi-
ficulties in having its licence renewed, and sion Montenegro (RTCG) and transferred its
an opposition TV channel was required powers to the RTCG Council. However, the
at very short notice to move out from its Commission stated that
Government-owned premises.” “(...) the political independence of the
public service broadcaster has to be en-
h) Montenegro sured. Licence fees for radio and television
Council Decision 2007/49/EC336 calls on Mon- were abolished. RTCG is now financed
tenegro to from the State budget. It receives 1.2%
“ensure implementation of the law on ac- of the annual budget. This provides the
cess to public information and continue public broadcaster with stable financial re-
the transformation of Radio and Television sources. The responsibilities of the Agency
of Montenegro into a public service broad- for Electronic Communications and of
caster and provide appropriate means for the Broadcasting Agency under the Law
it.” Montenegro should also “guaran- on Electronic Communications regard-
tee the operational independence of the ing frequency licensing remain unclear. A
broadcasting authority.” disagreement between the two agencies
The Commission attested Montenegro in regarding their competences contributed
its report “some progress (...) on electronic to delays in allocating a frequency to a pri-
vate TV station.”337

Council Decision of 22 January 2007 on the principles, priorities

336

and conditions contained in the European Partnership with Monte- 337

SEC(2009) 1336, Montenegro 2009 Progress Report, pp.
negro, [2007] OJ L 20, p. 16. 43 et seq.
European Media Law and Policy Framework 71

With the adoption of the Law on elec- ened, especially at local level, with a view
tronic media in 2010, the Commission at- to e-government. Administrative capacity
tested Montenegro an overall alignment with for implementation of the legislation in
the AVMSD. But increased efforts are neces- this area is insufficient.”341
sary as regards the protection of minors in the Furthermore, the Commission attested
media.338 that
“(...) the fixed telephony sector is not yet
i) Romania liberalised in practice and there is still a
Romania transposed the provisions of the lack of competition on this market (...).”342
AVMSD as the first EU Member State into The Commission reported progress in the area
its domestic law through the Ordonanţa de of audiovisual policy. Serbia ratified the Euro-
Urgenţă Nr. 181/2008 pentru modificar- pean Convention on Transfrontier Television
ea şi completarea Legii audiovizualului Nr. and the UNESCO Convention on the Protec-
504/2002 (Emergency Government Decree tion and Promotion of the Diversity of Cultur-
amending and completing Audiovisual Act al Expressions. Since 2008 the Broadcasting
no. 504/2002), which entered into force on Agency has published all of its decisions on
3 December 2008.339 the internet and awarded until 2009 a total
of 467 licences for broadcasting radio and TV
j) Serbia
programmes. A problem that is still unsolved
Council Decision 2008/213/EC340 calls on Ser-
is the privatisation of the broadcasting media
bia to “start approximation to the acquis on
in Serbia. This process is still blocked by cer-
the audiovisual sector and improve transpar-
tain provisions of the Law on Local Self-Gov-
ency and accountability, particularly of the
ernment and the Law on the Capital City.343
Republican Broadcasting Agency” and also to
Also in the 2010 progress report, the Com-
“sign and ratify the European Convention on
mission stated that in the audiovisual sector
Transfrontier Television”.
media legislation needs to be aligned with
On Serbia, the Commission remarked
the acquis, and a number of provisions of the
in its 2009 progress report that – although
law on public information continue to raise
progress has been made in the areas of the
concerns; especially as some provisions of the
information society and electronic communi-
law include excessive fines for the violation
cations –
of professional standards as well as for non-
“(...) the digital divide in electronic access
registration of media outlets.344
and digital inclusion needs to be addressed
and a broadband strategy needs to be fi-
nalised. IT capacity needs to be strength-

338
SEC(2010) 1334, Montenegro 2010 Analytical Report, p. 69.
338
See results/consequences of the transposition by M. Stoican,
Romania – Emergency Decree Amends Audiovisual Act, IRIS
2009-2:29, available at: http://merlin.obs.coe.int/iris/2009/2/
340
Council Decision of 18 February 2008 on the principles, priori-
article29.en.html; M. Stoican, Romania – Emergency Decree ties and conditions contained in the European Partnership with
Defines European Works, IRIS 2009-3:30, available at: http:// Serbia including Kosovo as defined by United Nations Security
merlin.obs.coe.int/iris/2009/3/article30.en.html Council Resolution 1244 of 10 June 1999 and repealing Decision
339
Council Decision of 18 February 2008 on the principles, pri- 2006/56/EC, [2008] OJ L 80, p. 46.
orities and conditions contained in the European Partnership
341
SEC(2009) 1339, Serbia 2009 Progress Report, p. 48.
with Serbia including Kosovo as defined by United Nations Se-
342
Ibid.
curity Council Resolution 1244 of 10 June 1999 and repealing
343
Ibid., p. 49.
Decision 2006/56/EC, [2008] OJ L 80, p. 46.
344
SEC(2010) 1330, Serbia 2010 Progress Report, p. 47.
72 The Media in South-East Europe

About the authors Higher Regional Court of Dusseldorf in 2008

and obtained a post-graduate Masters diplo-
ma from the Europa-Institut at the University
Alexander Scheuer, Attorney at law, General of Saarland in 2009. He had been working as
Manager, Member of the Executive Board of scientific researcher at the Institute of Euro-
the Institute of European Media Law (EMR), pean Media Law (EMR) in Saarbrucken from
Saarbrucken/Brussels (2000 to date). Mr 2009 to the beginning of 2011; currently, af-
Scheuer is a member of the Advisory Com- ter having finished his PhD thesis, he is prac-
mittee and of the IRIS Editorial Board, both at tising as a lawyer (solicitor) in Switzerland.
the European Audiovisual Observatory, Stras- Shari Kind, Ref. iur. (Assistant researcher). Mrs
bourg. Since 2003 he has been a member of Kind obtained her graduate diploma in law
the Scientific Advisory Board (Kuratorium) of studies from the University of Saarland and is
the Voluntary Self-Regulation of Private Tele- currently undergoing her practical legal edu-
visions in Germany (Freiwillige Selbstkontrolle cation (Referendariat, intern clerkship) at the
Fernsehen, FSF), Berlin. Editor and author of Higher Regional Court of Frankfurt/Main. Her
the Commentary “European Media Law”, contribution to the study, more specifically
Castendyk/Dommering/ Scheuer, Alphen a/d to the Council of Europe’s legal framework
Rijn 2008; co-author of the Commentary on for the media as reflected in the “European
the TEU- and TFEU- Treaties, Lenz/Borchardt benchmark”, was elaborated during her 4
(eds.), Köln, Basel, Genf, München, Wien months’ traineeship at the EMR in summer/
(1999, 2003, 2006, 2010; chapters on free autumn 2010.
movement of workers, freedom of establish-
For more information on the EMR please see:
ment). Scheuer has been responsible for sev-
http://www.emr-sb.de
eral major studies in the area of media and
telecommuniations law, commissioned – at
European level – e.g. by the European Com-
mission (co-regulation; media market defi-
nitions), the Committee of the Regions and
the Council of Europe, as well as – at the
national level – by different media authori-
ties in Germany, Austria and Switzerland. He
has published widely on European media,
telecommunica­ tions, protection of minors
and copyright law. Scheuer has given numer-
ous speeches at international and national
conferences and acted as a speaker and panel
chair­person/moderator among others in sev-
eral media expert seminars organised by the
respective EU Council presidencies.
Christian M. Bron, LL.M. Eur. (project co-
ordinator). Mr Bron graduated in law from
the Rheinische-Friedrich-Wilhelms-Universität
Bonn in 2005, finished his practical legal edu-
cation (Referendariat, intern clerkship) at the